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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 25-CF-0075
CALVON REGINALD BROWN, APPELLANT,
V.
UNITED STATES, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(2024-CF3-004038)
(Erik P. Christian, Judge)
(Submitted April 8, 2026 Decided September 3, 2026)
Peter H. Meyers was on the briefs for appellant.
Elizabeth Gabriel, Assistant United States Attorney, with whom Jeanine Ferris Pirro, United States Attorney, Chrisellen R. Kolb, Mark Levy, and Elizabeth Van Haasteren, Assistant United States Attorneys, were on the brief, for appellee.
Before BECKWITH, DEAHL, and HOWARD, Associate Judges.
DEAHL, Associate Judge: Calvon Reginald Brown was inside of a corner store,
near its front entrance, when Johnny Paul walked in playing music on his speaker.
Video footage from the store showed that Brown blocked Paul from getting past the
store’s entryway, and the two began arguing. Eventually, the two men left the store
2
and walked to a nearby alley. Paul testified that, once the pair was in the alley, Brown
pulled out a gun and fired it at him three times, with one bullet striking Paul’s hip.
Paul eventually wrestled the gun away from Brown, and Brown fled. Brown was
arrested and charged with several offenses, including aggravated assault while
armed.
Before Brown’s trial, the government moved to admit several minutes of
video footage from the store just before Paul entered. That footage showed Brown
weighing out what looked like pills on a scale and handing them to a man in
exchange for cash. Brown argued that this was inadmissible other crimes evidence
and substantially more prejudicial than probative because it portrayed him as a drug
dealer, apropos of nothing of relevance to the charged offenses. The court admitted
the footage over Brown’s objections, but without directly addressing Brown’s
objection that it was substantially more prejudicial than probative. At trial, the
government argued that Brown shot Paul because he was “drawing attention” to his
“little set up” in the storefront by playing loud music on his speaker. The government
alluded to Brown’s “business” or “little set up” several other times during trial,
including in closing arguments over Brown’s objection. A jury then convicted
Brown of aggravated assault and several related offenses.
3
After trial and two days before sentencing, defense counsel moved to
withdraw from representing Brown. She explained that she had a conflict of interest
because Brown indicated that he would file an ineffective assistance of counsel claim
against her and their relationship had completely broken down. The court denied that
motion, reasoning only that any ineffective assistance of counsel claim “can be
raised post sentencing.”
Brown argues on appeal that the court erred when it (1) admitted the video
evidence of Brown in the store before Paul entered and permitted the government to
portray him as engaged in “business” in the store, in an apparent reference to a drug
trade; and (2) denied defense counsel’s motion to withdraw before sentencing. As to
the first claim, while we agree with Brown that the court abused its discretion when
it failed to weigh whether the video evidence was substantially more prejudicial than
probative, and similarly erred in permitting the government to refer to Brown as
conducting business in that store, we determine that those errors were harmless. As
to the second claim, we agree with Brown that the trial court abused its discretion in
denying defense counsel’s motion to withdraw before sentencing, and that Brown is
thus entitled to a new sentencing proceeding where he can be represented by
unconflicted counsel. We also agree with Brown that, on remand, resentencing
should proceed before a new judge. We therefore affirm Brown’s convictions and
remand the case to a new judge for resentencing.
4
I. Facts and Procedural Background
Calvon Brown was in the entryway of a corner store in Southeast D.C. one
afternoon. Video from the store, which did not have audio, showed Brown removing
what looked like pills from a plastic bag and weighing them on a small scale. He had
plastic covering his hand as he did so. He then poured the pills into another plastic
bag and gave that bag to a man who handed him some cash. About a minute after
that man left, Johnny Paul entered the store. Paul was carrying a satchel and playing
Tupac from a portable speaker he wore across his chest. Another man, who appeared
to know Brown, sat near the store’s front entrance and got up right as Paul entered.
Paul walked through the store’s front door and toward a security door
connecting the entryway to the main store. Brown then tried to prevent Paul from
passing through the security door by pushing it closed. Brown told Paul that he could
not come into the store and asked him why he was listening to Tupac on his speaker.
An argument ensued, and Paul asked Brown: “You want to fight?” Brown agreed
and suggested that they go around the corner. Surveillance video from outside the
store shows that the pair exited the store and continued to argue. Brown then began
walking away and Paul followed closely behind, and the video footage ends as the
two men walked to a nearby alley.
5
According to Paul, once the men were in the alley Brown drew a gun from his
waistband and fired three shots at Paul. One shot hit Paul’s hip, another just missed
his head, and the third hit his speaker. Paul and Brown then wrestled over the gun as
it fired a fourth time. Paul eventually gained possession of the gun and tried to shoot
Brown with it, but the gun jammed and Brown ran away. Paul then saw police
approaching, and he was additionally worried about Brown’s friends coming after
him, so he dropped the gun by a nearby trash can and left the area. Around the same
time, law enforcement received a call that someone matching Paul’s description was
in the alley and had a gun and a speaker in his hands.
Paul immediately called his girlfriend and told her he had been shot. The two
agreed to meet at a nearby police station, where Paul went and reported the shooting
approximately eleven minutes after it happened. Paul next went to a hospital where
he was treated for his gunshot wounds. When a detective interviewed Paul at the
hospital, Paul initially denied ever possessing a gun, but later admitted that he had
dispossessed Brown of his gun and left it near a trashcan. Police recovered four shell
casings and one bullet fragment from the alley, but they never recovered the gun.
Brown was later arrested and charged with aggravated assault and several related
offenses.
6
The government moved before trial to introduce the video evidence from
inside the store’s entryway. That video depicted Paul and Brown’s exchange as well
as the three minutes immediately preceding their interaction in which Brown
appeared to be dealing drugs. The government did not charge Brown with any drugrelated offenses, but it explained that the portion of the footage before Paul entered
the store was admissible to provide the immediate context of the underlying assault.
It also argued that the video was more probative than prejudicial under Fed. R. Evid.
403. In his opposition to this motion, Brown argued that the video was inadmissible
other crimes evidence under Drew v. United States, 331 F.2d 85 (D.C. Cir. 1964),
and that the danger of unfair prejudice substantially outweighed its probative value.
Brown further objected to this evidence at a pretrial hearing, while the
government explained that it would not refer to Brown as a drug dealer or use “any
sort of inflammatory language,” but rather wanted to introduce the video to show
“the jury what was going on immediately before” the incident. Brown disagreed,
arguing that the video did not provide any necessary or helpful context for their
subsequent confrontation. The court ruled the evidence was admissible, explaining
that it “places into context [the] reported interaction between” Brown and Paul.
When the video was later introduced at trial, Brown again objected and argued
that the video was substantially more prejudicial than probative. The court overruled
7
that objection without explanation, and the video was admitted and played before
the jury. Paul identified himself in the video and explained what transpired between
himself and Brown. Although there was no testimony about the early part of the
video, in which Brown was seemingly weighing and selling pills, the video was
played before the jury and Paul said that he had seen Brown in the storefront before.
A police officer who had identified Brown based on a lookout also said she
recognized him based on a description of the shooter and because she had previously
seen him in front of the store. Neither expressly mentioned that they believed Brown
was dealing drugs in or near the store.
As to Brown’s motive for shooting Paul, the government theorized in its
opening statement that the loud music coming from Paul’s speaker was “drawing
attention to the little set up that [Brown] and his friend had going on in the front of
the store.” At the close of trial, the government reiterated that the shooting “had
something to do with music . . . because of [Brown’s] cash business that he has in
the front of [the] store.” The prosecutor also recounted the video’s contents in
closing, describing how Brown “[took] a little baggy from his jacket,” “weigh[ed]
something,” and made a “cash transaction.” Defense counsel did not object to these
statements, despite the fact that they seemed to contravene the government’s pretrial
assurances that it would not refer to Brown as a drug dealer. But defense counsel did
object when the prosecutor later said that Brown “transacts business in that little
8
front area of the store every day.” The transcript reflects that the court said nothing
in response to this objection and permitted the government to proceed uninterrupted.
The defense argued in closing that it was Paul, not Brown, who brought the gun to
the alley. It emphasized that Paul had initially denied having the gun, and that a 911
caller had reported seeing a man matching Paul’s description with a gun in the alley
soon after the altercation. The jury found Brown guilty on all counts.
Before sentencing, the government submitted a memorandum arguing that
Brown should be sentenced to a total of ten years’ imprisonment, followed by five
years of supervised release. Defense counsel did not submit any memorandum in aid
of sentencing and instead filed a motion to withdraw and appoint substitute counsel
for sentencing. She explained that she and Brown had “irreconcilable differences
that require termination of the representation” and that “[t]he attorney-client
relationship ha[d] deteriorated to a point that preclude[d]” her from “effectively
represent[ing]” Brown. She further explained that she would be breaching her ethical
duties if she continued representing Brown, noting that “there [was] now a conflict”
of interest precluding her from continuing her representation. At the ensuing
sentencing hearing a couple of days later, defense counsel elaborated that Brown had
“been persistent pretty much every day asking [her] to file the motion of ineffective
assistance of counsel,” which was animating her request to withdraw. She further
9
explained that she had consulted with “D.C. Bar counsel,” who advised her to
withdraw and not to say anything on the merits of the sentencing decision.
The court denied defense counsel’s motion to withdraw, saying only that
ineffective assistance of counsel “can be . . . addressed at a later point.” In light of
that denial, defense counsel briefly argued that the court should sentence Brown to
the mandatory minimum for aggravated assault, five years, and that all other counts
should “merge” with that lead count. The government maintained its position that
Brown should be sentenced to ten years for all offenses. The court sentenced Brown
to a total of thirteen years’ imprisonment to be followed by five years of supervised
release. Brown now appeals.
II. Analysis
Brown argues that the court made several errors at trial and that it abused its
discretion in denying defense counsel’s motion to withdraw and to appoint substitute
counsel. We first address Brown’s claims of evidentiary errors and conclude that
while the trial court erred in several respects, those errors were harmless. We then
address Brown’s sentencing-related claim and conclude that the trial court erred
when it denied defense counsel’s motion to withdraw prior to sentencing. Defense
counsel had a clear and apparent conflict of interest that she cogently explained
10
would preclude her from representing Brown further, and the trial court provided no
basis for denying her request to withdraw.
A. The court’s errors at trial were harmless
Brown argues that the trial court erred in admitting the video evidence
depicting him engaged in an apparent drug deal and failing to sustain his objection
to the government’s statement in closing that he “transacts business” “every day” in
the store. We conclude that (1) the trial court abused its discretion in admitting the
video evidence without conducting the requisite analysis of whether the evidence’s
probative value was substantially outweighed by the danger of unfair prejudice, but
that (2) any errors in allowing evidence of Brown’s drug dealing, and in permitting
the government to reference his “business” in closing arguments, were harmless and
thus do not merit reversal of Brown’s convictions.
1. The admissibility of the video footage
Brown first argues that the trial court erred in admitting the video evidence of
him in the store before Paul arrived because it was impermissible other crimes
evidence under Drew v. United States, 331 F.2d 85. The government counters that
the evidence was instead what is often called Johnson/Toliver evidence, i.e., mere
context for what immediately precipitated the shooting in this case. See (William)
11
Johnson v. United States, 683 A.2d 1087, 1098 (D.C. 1996) (en banc); Toliver v.
United States, 468 A.2d 958, 960 (D.C. 1983). Brown further argues that, regardless
of who is right on that first point, the video evidence was substantially more
prejudicial than probative so that it should have been precluded under Fed. R. Evid.
403. We do not resolve the debate about whether this was inadmissible Drew
evidence, or instead admissible under the Johnson/Toliver line of cases. That is
because, in any event, we agree with Brown that the trial court abused its discretion
in admitting the video evidence without conducting the requisite inquiry into
whether it was substantially more prejudicial than probative. 1
We review the trial court’s decision to admit evidence for abuse of discretion.
Trotter v. United States, 121 A.3d 40, 58 (D.C. 2015). Evidence is generally
inadmissible when its “probative value is substantially outweighed by a danger of
. . . unfair prejudice.” Fed. R. Evid. 403; see also Trotter, 121 A.3d at 58 n.63 (noting
that this jurisdiction has adopted Rule 403). Whether the probative value of evidence
1
Brown also argues that the trial court erred in failing to give the jury a “limiting instruction on the use the jury could make of the videotape.” Because Brown did not request such an instruction, we review that claim for plain error. Taylor v. United States, 267 A.3d 1051, 1062 (D.C. 2022). As we explain below, even if we agreed that it was obvious error not to provide a limiting instruction, we do not think that any such failure affected Brown’s substantial rights as there was no reasonable probability that such a limiting instruction would have altered the outcome of Brown’s trial.
12
is substantially outweighed by the danger of unfair prejudice is a discretionary
question for the trial court. Trotter, 121 A.3d at 58. In exercising that discretion, the
trial court must “ensure that the record . . . reflect[s] both the foundations and the
reasoning behind the discretionary decision,” and a failure to provide such reasoning
may itself constitute an abuse of discretion. (James) Johnson v. United States, 398
A.2d 354, 363, 366 (D.C. 1979).
On this record, we have no assurance that the trial court actually weighed the
prejudicial versus the probative value of this video evidence. Id. at 363 (“[T]he
essence of the decision-making is the trial court’s judgment in exercising that
discretion,” and “[a]n outright failure or refusal to exercise that judgment is wholly
defeating.”). Assuming it did that weighing sub silentio, we have no clue on what
basis the court determined this video evidence was not substantially more prejudicial
than probative. Id. at 366 (explaining that the court must articulate some “reasoning”
behind its ruling). The trial court thus erred in failing to exercise its discretion in the
manner required. In some limited circumstances, we as an appellate court might
nonetheless affirm the trial court’s ruling despite the lack of any reasoned ruling, but
only if “it is clear from the record, as a matter of law, that the trial court had ‘but one
option.’” Long v. United States, 687 A.2d 1331, 1344 (D.C. 1996) (quoting (James)
Johnson, 398 A.2d at 364). This was not such a case where the trial court had no
choice but to admit the video evidence.
13
Brown had a strong argument that the video evidence was quite prejudicial to
him and had relatively little probative weight. That video evidence depicted Brown
engaged in what appeared to be an illicit drug transaction in the minutes before Paul
entered the store. “It is a principle of long standing in our law” that such “other
crimes” evidence is presumptively prejudicial, at least to some extent. Drew, 331
F.2d at 89. That prejudice comes in many forms, including that the jury “may use
the evidence . . . to infer a [defendant’s] criminal disposition,” see id. at 88, or it may
treat the uncharged criminal conduct “as justifying a condemnation irrespective of
guilt of the present charge[s].” Id. at 89 n.8 (quoting 1 Wigmore, Evidence § 194 (3d
ed. 1940)). And in a case like this one, where Brown’s defense was that it was Paul
who pulled out the gun, the video evidence depicting Brown as a drug dealer ran a
risk of the jury inferring that he was likely armed because he was a drug dealer.
“[A]s has been often observed, drugs and weapons go together.” Peay v. United
States, 597 A.2d 1318, 1321 (D.C. 1991) (en banc).
On the other side of the scale, the probative value of this evidence was fairly
weak. The fact that Brown was apparently selling drugs in the store before Paul
walked in had little to do with anything of relevance to the charged offenses. It was
undisputed that, after Brown appeared to sell drugs to somebody who had since left
the store, Brown and Paul got into an argument in the corner store’s entryway
because Paul was playing Tupac loudly on his body-worn speaker. In Paul’s own
14
words, Brown and his friends “mind when I listen to Tupac” because “every day I’m
listening to Tupac. . . . Tupac, Tupac, Tupac, Tupac.” It was further undisputed that
the pair then left the store together to go to a nearby alley for a scrap. While the
government further speculated that Brown was concerned about the attention Paul’s
music would cast upon his drug trade, there was no direct evidence supporting that
theory—plausible though it may have been—and it was not exactly critical to the
government’s case.
That is not to say that the trial court had no choice but to preclude this video
evidence and the government’s related arguments about Brown being engaged in the
drug trade. In our view, the trial court might have properly exercised its discretion
to admit or preclude this evidence after weighing its prejudicial versus probative
value. But because there is no indication that the trial court actually conducted the
required Rule 403 analysis, and because it offered no reasoning for admitting this
evidence, we conclude that the trial court erroneously exercised its discretion. We
further agree with Brown that, because the trial court erred in admitting the video
15
evidence, it similarly erred in allowing the government to emphasize Brown’s drug
dealing during its opening and closing arguments. 2
2. The errors were harmless
We nonetheless conclude that those errors were harmless, as there was no
reasonable probability that they affected the outcome of Brown’s trial. See (Todd)
Thomas v. United States, 59 A.3d 1252, 1262 (D.C. 2013) (applying the harmless
error test from Kotteakos v. United States, 328 U.S. 750, 764-65 (1946), to erroneous
admission of other crimes evidence). The improper admission of evidence is
harmless if we can say “with fair assurance, after pondering all that happened
without stripping the erroneous action[s] from the whole, that the judgment was not
substantially swayed by the error[s].” Plummer v. United States, 813 A.2d 182, 191
(D.C. 2002); see also Kotteakos, 328 U.S. at 764-65. We are fairly assured that the
verdict was not substantially swayed by these errors.
2
Even if the trial court had properly admitted the video evidence, it likely independently abused its discretion when it failed to police the government’s pretrial assurances not to refer to Brown as a drug dealer. There was nothing subtle about the government’s closing argument descriptions of Brown “tak[ing] a little baggy from his jacket,” “weighing something,” and making a “cash transaction.” And if it were not clear enough that the government was calling Brown a drug dealer at that point, it later put a sharper point on it when it described Brown as “transact[ing] business in that little front area of the store every day,” and Brown’s objection at that point of the closing argument was simply ignored by the trial court.
16
First, the government had a very strong case that the defense did little to
counter. Recall that there was no evidence undermining or casting doubt upon the
following facts: (1) Brown obstructed Paul from entering the corner store, and the
pair got into a heated argument; (2) the pair then agreed to walk around the corner
to a nearby alley; (3) several shots were fired, with Paul being struck once in his hip
and once in his speaker; (4) Brown was not struck by any gunfire; (5) Paul emerged
from the alley with a firearm and abandoned it near a trash can; and (6) Paul
promptly reported the shooting to the police within minutes, and went to a hospital
to receive treatment, while Brown made no similar report and never recounted to
anybody that Paul had pulled a gun on him. It is extremely difficult, on those facts,
to come up with any plausible scenario other than Brown pulling a gun on Paul and
shooting him. The only contrary theory that defense counsel floated for the jury,
which he reiterates now on appeal, is that once the men got in the alley, maybe “Paul
pulled his gun out and shot himself in the hip area, perhaps accidentally.” Maybe a
jury could have found that was a plausible scenario if Paul had only been struck
once, but it is a really fanciful construction of the facts—which Brown presented no
testimony or evidence to support—given that Paul was shot twice.
Second, as just alluded to, the defense did not present any plausible
counternarrative of what took place in the alley, leaving the jury to assess Paul’s
credibility in light of the surrounding circumstances. Putting aside Paul’s demeanor
17
on the witness stand, which we are in no position to assess, there were strong
circumstantial reasons to believe Paul’s account, most notably: (1) that Paul had
been shot twice, which is strong support that Brown is the one who pulled the gun;
and (2) that Paul promptly reported the shooting to police, while Brown fled and
made no similar report. That second point is exactly what you would expect if, as
the jury found, Brown pulled a gun on Paul and shot him. It is far harder to imagine
that Paul would have reported a shooting to police that he himself initiated and that
Brown would have left the shooting unreported if Paul had attempted to shoot him
unprovoked. We think it is very unlikely that the evidence of Brown dealing some
nondescript drugs in the corner store in the minutes before the shooting had any
bearing on the jury’s assessment of Paul’s credibility.
Third, while we are mindful of the prejudice that often accompanies evidence
of other crimes, this was not especially damning other crimes evidence. The
evidence was of a relatively trivial offense compared to the charges that Brown
faced: the video appeared to show Brown engaged in low-level street dealing in some
unidentified narcotics, and that is not so serious an offense that a jury might plausibly
have convicted Brown of the far more serious offense of aggravated assault while
armed just to punish him for that low-level drug dealing. See Drew, 331 F.2d at 89
n.8 (explaining the danger of other crimes evidence being used in this way). And the
government put little emphasis on this evidence in its opening and closing
18
arguments. If the evidence provided any serious cause to doubt that Brown was
armed and pulled the gun on Paul, we might conclude that the improper admission
of evidence portraying Brown as a drug dealer was harmful, given that a jury might
reasonably think evidence that Brown was a drug dealer tended to show that he
would be armed. But here, there was no serious cause to doubt that, and thus no
reasonable probability of harm stemming from the improper admission of that
evidence.
In light of the foregoing, we conclude there was no reasonable probability that
the trial court’s evidentiary errors affected the outcome of Brown’s trial.
B. The trial court erred when it refused to let defense counsel withdraw
Having concluded that the trial court’s errors were harmless, we now turn to
its denial of defense counsel’s motion to withdraw before sentencing. We review the
denial of a motion to withdraw for abuse of discretion. Oliver v. United States, 832
A.2d 153, 156 (D.C. 2003).
The Sixth Amendment right to counsel at all critical stages of a criminal trial
includes the corollary right to counsel that is free from conflicts of interest. See Wood
v. Georgia, 450 U.S. 261, 271 (1981); Douglas v. United States, 488 A.2d 121, 136
(D.C. 1985). Where an “actual conflict of interest exists, and the defendant objects
19
to continued representation by the conflict-burdened attorney, new counsel must be
appointed” without exception. Douglas, 488 A.2d at 136 (citing Holloway v.
Arkansas, 435 U.S. 475, 487-91 (1978)). Failure to appoint new counsel under those
circumstances—i.e., where a defendant objects to his continued representation by
counsel with an actual conflict of interest—requires reversal without any further
harm inquiry. See Freeman v. United States, 971 A.2d 188, 194-95 (D.C. 2009)
(citing Douglas, 488 A.2d at 136).
Here, we conclude that the trial court improperly denied defense counsel’s
motion to withdraw before sentencing with virtually no explanation for that decision,
for two principal reasons.
First, defense counsel represented that she had an actual conflict of interest in
this case because Brown had indicated that he wanted to file ineffective assistance
of counsel claims against her. Neither the government nor the trial court has ever
disputed that Brown’s counsel had an actual conflict of interest, so that is a conceded
point. See Douglas, 488 A.2d at 136-37 (determining that counsel acquired a conflict
justifying withdrawal after learning of defendant’s complaint to Bar Counsel which
“might later be expanded to include claims of ineffective assistance at trial”). As we
explained in Douglas, such a conflict could encourage “overcautious tactical
decisions and courtroom demeanor” and significantly “impede communications”
20
between counsel and client. Id at 137; see also (Jermaine) Thomas v. United States,
685 A.2d 745, 751 (D.C. 1996) (holding that a trial court has an affirmative duty to
inquire into possible conflict post-trial “when allegations surface that an alleged
conflict of interest had an adverse impact on the attorney’s representation”). And the
right to conflict-free counsel extends to sentencing just as much as to the guilt phase
of trial. “A defendant has the right to effective assistance at all critical stages of a
criminal proceeding, and sentencing is a critical stage.” (Vincent) Johnson v. United
States, 585 A.2d 766, 770 (D.C.1991) (citations omitted).
Second, there was no good reason to deny the motion to withdraw, and neither
the government nor the trial court offered any cogent basis for denying it. The
government did not even oppose the motion before the trial court. For its part, the
trial court articulated no ground for denying the motion, aside from saying that
ineffective assistance claims could be “addressed at a later point.” It was no doubt
true that ineffective assistance of counsel claims could be addressed later, but that is
a nonsequitur—Brown had a constitutional right to be represented by conflict-free
counsel at his sentencing, and the fact that an ineffectiveness claim could proceed
later had nothing to do with that. On appeal, the government argues for the first time
that granting Brown’s request could have led to unjustified delay as it would have
required rescheduling the sentencing hearing for a later date. We do not see any
21
serious prejudice to the government in such a delay, nor do we think such a delay
could justify denying a defendant his right to conflict-free counsel.
The government argues that, even if the trial court erred in precluding counsel
from withdrawing, any error was harmless. We disagree. As this court has previously
explained, where “an actual conflict of interest exists, and the defendant objects to
continued representation by the conflict-burdened attorney . . . . a failure to appoint
new counsel . . . will lead to a reversal of any conviction obtained at trial.” Douglas,
488 A.2d at 136; see also Freeman, 971 A.2d at 194-95. And even if we were
required to conduct a harm inquiry, we could not say with any fair assurance that
competent and unconflicted counsel could not have led to a more favorable sentence
for Brown: (1) his trial counsel did not even file a sentencing memorandum, which
is at least somewhat atypical when confronted with charges of this gravity,
presumably because Bar Counsel advised her not to do so given her apparent conflict
of interest; and (2) the trial court sentenced Brown to three years above what even
the government recommended. None of that provides us with any assurance that
unconflicted and competent counsel could have made no difference to Brown’s
ultimate sentence.
Brown finally requests that we order resentencing in front of a different trial
judge. To determine whether to do so, we consider (1) whether the original trial
22
judge “would reasonably be expected upon remand to have substantial difficulty in
putting out of his or her mind previously-expressed views or findings determined to
be erroneous or based on evidence that must be rejected”; (2) whether reassignment
would “preserve the appearance of justice”; and (3) whether reassignment would
“entail waste and duplication out of proportion to any gain in preserving the
appearance of fairness.” Thorne v. United States, 46 A.3d 1085, 1093 n.47 (D.C.
2012) (quoting In re D.E., 991 A.2d 1205, 1214 (D.C. 2010)). We have ordered
reassignment in several cases, including where the judge’s “remarks created an
unacceptable risk that the sentence was impermissibly enhanced,” id. at 1092-93
(quoting United States v. Cruz, 977 F.2d 732, 734 (2d Cir. 1992)), and where the
judge “automatically incarcerated appellants according to a uniform policy,”
Lindsay v. United States, 84 A.3d 50, 53 (D.C. 2014).
We agree with Brown that a different judge should handle resentencing. The
trial judge who initially sentenced Brown reached a sentencing determination in a
proceeding where Brown was effectively uncounseled—i.e., his counsel had an
actual conflict of interest—and one could rightly question whether the judge could
put his prior sentencing decision out of mind at any resentencing. The fact that the
trial judge was so dismissive of Brown’s request for substitute counsel, rejecting it
out of hand with no cogent explanation, provides some further basis to believe that
the judge’s impartiality could be reasonably questioned. Although we ourselves do
23
not doubt the “conscientiousness and integrity of the trial judge,” Thorne, 46 A.3d
at 1093, this is a case where “both for the judge’s sake and the appearance of justice,
an assignment to a different judge is salutary and in the public interest, especially as
it minimizes even a suspicion of partiality,” In re D.E., 991 A.2d at 1214-15 (quoting
United States v. Robin, 553 F.2d 8, 10 (2d Cir. 1977) (en banc)).
III. Conclusion
For the foregoing reasons, we affirm Brown’s convictions and remand for
resentencing before a different judge.
So ordered.