UNITED STATES Of AMERICA v. Jaron Brice

PUBLIC COPY - SEALED INFORMATION DELETED
nIeb $txti Qlnurt of
ppct1
FOR THE DISTRICT Of COLUMBIA CIRCUIT
Argued September 24, 2013 Decided May 6, 2014
No. 09-3071
UNITED STATES Of AMERICA,
APPELLEE
V.
JARON BRICE,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:05-cr-00367-1)
Jonathan S. Jeffress, Assistant federal Public Defender,
argued the cause for appellant. With him on the briefs were
A.J Kramer, Federal Public Defender, and Rosanna li
Taormina, Assistant federal Public Defender.
Lauren R. Bates, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Ronald C.
Machen Jr., U.S. Attorney, and Elizabeth Trosman and
Elizabeth H Danello, Assistant U.S. Attorneys.
Before: KAVANAUGH, Circuit Judge, and WILLIAMS and
SENTELLE, Senior Circuit Judges.

-- 1 of 14 --

2
PUBLIC COPY
-
SEALED
INFORMATION
DELETED
Opinion
for the Court filed
by
Circuit Judge
KAVANAUGH.
Opinion concurring
in the
judgment
filed
by
Senior
Circuit Judge
WILLIAMs.’
KAVANAUGH,
Circuit Judge:
Brice was
convicted
for
crimes arising out
of
a
major
sex
trafficking operation
in
which
he
prostituted
and
sexually abused multiple teenagedgirls and adult women. Brice was convicted
in
federal district
court
in 2006 and sentenced
to
a
within-Guidelines sentence
of
30
years
in
prison.
In
his initial appeal,
we
affirmed
his
conviction, but remanded for further fact-finding
on one
narrow sentencing issue.
See
United States
v.
Brice, 296
F.
App’x
90,
91
(D.C.
Cir.
200$). On remand,
the
Government
argued that Brice’s original 30-year sentence was still
appropriate. But the District Court disagreed with the
Government and instead sentenced Brice
to
a
below-
Guidelines sentence
of
25
years.
Although he received a below-Guidelines sentence in his
re-sentencing, Brice has again appealed
his sentence. Among
other things, Brice raises a
new argument about the
District
Court’s alleged lack
of
impartiality —
based
on events not
at
the re-sentencing or even at the original sentencing, but rather
back
at the 2006 trial, particularly
in a
transcribed ex parte
sidebar with the prosecution on February
21, 2006. In the
sidebar, the District Court and prosecutor discussed how one
of
the detained material witnesses (that
is, one
of
the women
alleged to have been sexually abused by Brice) should enter
NOTE: Portions of
the opinion concurring
in
the judgment
contain
Sealed Information,
which has been redacted.

-- 2 of 14 --

3
PUBLIC COPY
- SEALED INFORMATION DELETED
the courtroom
for
her
testimony. The
judge
concluded thatthe witness should enter
in
the same way
as
other innocent
witnesses, from
the back
of
the
courtroom with
the
jurypresent.
The
judge
and
prosecutor
also
discussed
the
possibility that
one
of
the
detained material witnesses might
assert the
fifth
Amendment
when
called
to
testify.
The
problem for Brice
at
this
point
is
that
he
did not raise
the impartiality argument
in
his
initial appeal even
though
he
could have done
so.
Under our
precedents,
we
therefore
may
not reach
the
merits
of
this impartiality claim
at
this time.
Two separate lines
of
this Court’s precedents require that
result.
first,
this Court
has
definitively stated that motions
to
recuse based
on
a
judge’s
alleged bias or lack
of
impartiality
must
be
raised “within
a
reasonable time after the grounds”
for
recusal
“are known.” United States
v.
Barrett,
111
F.3d947,
951
(D.C. Cir. 1997). We
have further
said
that
if
the
motion
is
not filed
in a
reasonable time, the
objection
is
deemed waived and may not
be
considered
on appeal.
Id.
The underlying rationale
for
that rule
of
procedure
is
straightforward: “[Al defendant cannot take
his
chances witha
judge
and then,
if
he thinks that the sentence
is
too severe,
secure a
disqualification and a
hearing before another judge.”
Id.
(internal quotation marks omitted). Second, our cases
have set forth
a
general rule
of
appellate procedure that,
at
least absent exceptional circumstances, “where an argument
could have been raised on an initial appeal,
it is
inappropriateto
consider that argument on a
second appeal following
remand.” United States
v.
Henry, 472
f.3d
910, 913 (D.C.
Cir. 2007) (internal quotation marks omitted); see
also
Hartman
v.
Duffey,
$8
F.3d 1232, 1236 (D.C. Cir. 1996)
(“We do not reach the merits
of
defendant’s arguments on this
issue because
of
the defendant’s failure to pursue it in its prior
appeal.”).

-- 3 of 14 --

4
PUBLIC COPY
- SEALED INFORMATION DELETED
In this case, each of those lines of precedent applies and
independently precludes us from reaching the merits of
Brice’s impartiality claim. In the initial appeal, Brice plainly
could have raised his impartiality argument based on the
February 21, 2006, ex parte sidebar. The relevant February
21, 2006, trial transcript necessary to raise this impartiality
issue was available to Brice’s appellate counsel during the
first appeal. Brice says that during the initial appeal, his
appellate counsel did not have access to transcripts of the
district court’s sealed pre-trial hearings on February 15 and
17, 2006, which occurred with defense counsel present and
concerned several issues relating to the material witnesses
who had been detained and were potential trial witnesses.
That is a red herring. Those transcripts are not the relevant
transcripts for Brice’s impartiality argument based on the
February 21, 2006, ex parte sidebar. The relevant transcript is
the February 21, 2006, trial transcript. And during the initial
appeal, Brice had access to the February 21, 2006, trial
transcript. (In this appeal, Brice notably has not claimed
otherwise.) Indeed, in the initial appeal, Brice included
portions of the February 21 trial transcript in the joint
appendix, leaving no doubt that he had access to the transcript
necessary to advance this impartiality argument. See Joint
Appendix at 163-81, United States v. Brice, 296 F. App’x 90
(D.C. Cir. 200$) (No. 063135).2
2 In the current appeal, Brice notes in passing a comment about
Brice and one of the witnesses that the District Court made at the
February 15, 2006, pre-trial hearing. Brice’s counsel was present at
that hearing. At the conclusion of the relevant pre-trial hearings,
after initially objecting to the judge’s comment and seeking recusal,
Brice then expressly withdrew and thereby waived any recusal
claim based on that comment. Moreover, Brice could have raised

-- 4 of 14 --

5
PUBLIC COPY
- SEALED INFORMATION DELETED
In short, in his initial appeal, Brice could have raised the
impartiality issue relating to the February 21, 2006, ex parte
sidebar. But he did not do so. Whether Brice did not raise it
in the initial appeal because of his attorney’s negligence or
because
of his attorney’s deliberate strategy, our precedents
require us to conclude that Brice cannot raise it now in his
second appeal. See Henry, 472 F.3d at 913; Barrett, 111 F.3d
at 951.
To be clear, that does not mean that Brice is out of luck.
Brice can file a collateral Section 2255 motion in federal
district court. In such a motion, Brice can allege that his
attorney in the initial appeal provided ineffective assistance
by failing to raise an impartiality argument based on the
February 21, 2006, ex parte sidebar. (Brice’s counsel in the
initial appeal was different from Brice’s counsel in the current
appeal.) But what Brice cannot do under our case law is to
raise this impartiality issue for the first time in his second
appeal.
***
We have carefully considered all of Brice’s arguments in
this appeal. We affirm the judgment of the District Court.
So ordered.
an impartiality argument about that comment in his initial appeal,
but he did not do so.

-- 5 of 14 --

PUBLIC
COPY
-
SEALED
INFORMATION DELETED
WILLIAMS,
Senior Circuit Judge, concurring
in
the
judgment:
The panel does
not reach
the
merits
of
Brice’s
claim
that the district judge’s “impartiality might reasonably
be
questioned,”
a
claim that
if
correct would have
required
the
district
judge
to
recuse herself.
See
2$
U.S.C.
§
455(a).
It
rests on
two propositions:
first,
the rule
created
in
United
States
v.
Barrett,
111
F.3d
947,
951
(D.C. Cir. 1997),
that
failure
to
call for recusal “within
a
reasonable time after
the
grounds for
it are
known” waives
any claim under
§
455(a);
second, the “general rule
of
appellate procedure” that where
an
argument could have been raised
on an
earlier appeal,
it
is
inappropriate
to
consider
the
argument in a later appeal
following
a remand, at least absent “exceptional
circumstances,” United States
v.
Henry, 472
f.3d
910,
913
(D.C. Cir. 2007).
I
agree that
we are
bound by
Barrett,though
I
can find no logic
behind
its silent choice that this
particular omission
of
counsel must
be classified
as
waiver
(entailing
no
review
at all),
rather than forfeiture (allowing
review for “plain
error”). And
I
believe
the
circumstances
are
exceptional enough that counsel’s omission
on the
priorappeal should not prevent review
of
the current claim.
The substantive claim here
is
one
of
bias, and its facts
are
surely exceptional. The key event was the initial appearance
of
a
prosecution witness, an appearance designed
by
judgeand prosecutor—in
an ex
parte sidebar—to generate both
pathos and sympathy for the witness. The witness, known
as
K.H., was among the women that the defendant evidently
controlled in the course
of
the prostitution offenses for whichhe was ultimately found guilty. She and two others had been
held
as
material witnesses, after material-witness proceedings
conducted by the district judge
who handled the trial.
Because
of
concern over K.H.’s mental health, she was to be
voir dired outside the presence
of
the jury. But the Assistant
U.S. Attorney spied a chance for more impact, as he explained
in the ex parte sidebar:

-- 6 of 14 --

2
PUBLIC COPY - SEALED INFORMATION DELETED
I was hoping that there was some way that the jury
could see [the witness] come in to see the defendant for
the first time because I anticipate that there’s going to
be a reaction because she’s so in love with him and
when she saw the photo spread, she sobbed, I was there.
But it sounds like if you were going to do the voir
dire that will be beforehand outside of the jury and the
defendant present.
Tr. of Feb. 21, 2006, at 203. The district court obliged,
helpfully suggesting the following: “You could call her as a
witness, she could enter the courtroom. Have me excuse the
jury and do the voir dire. Then we can just do it in that
order.” Id. at 204.
The district court then set out to execute the plan. The
court called the marshal over and said that the witness, who
was then detained, should be treated “more like a victim than
a criminal,” id., and then laid out the proposal agreed on with
the prosecutor. The court deputy marshal responded by
noting that to bring a detained witness through the front door
was a policy deviation that would require the approval of his
chief. He proposed an alternative, but the judge insisted on
the original plan: “It’s important that she come in and that the
jury see her and the defendant the first time that they see each
other.” Id. at 206. To be sure that it came off, she said she
would speak to the supervisor. Evidently she did so, and the
staged entry proceeded just as the court and prosecutor had
planned.
The entry evidently did not strike defense counsel as odd
enough to trigger an inquiry or objection. Even the
government doesn’t claim that counsel’s inaction at trial
precludes review here; rather it rests on the fact that in the

-- 7 of 14 --

3
PUBLIC COPY - SEALED INFORMATION DELETED
first appeal (not handled by trial counsel), the transcripts
available to counsel included the text of the ex parte sidebar.
The doctrinal obstacle to our consideration of Brice’s
current claim is Barrett’s rule that a party waives any
objection to the judge’s appearance of bias if he fails to raise
the issue “within a reasonable time after the grounds for
[disqualification] are known.” 111 F.3d at 951. As the
Barrett court expressly ruled against Barrett’s bias claim on
the merits, the waiver theory was quite unnecessary, as Judge
Tatel noted in his concurring opinion. Id. at 954. But because
the court appeared to rest the outcome in part on the waiver
theory, we are obliged to treat it as an alternative holding
Besides arranging the presentation of K.H., the district
court on other occasions showed some hostility to the
defendant. Standing alone, these expressions might not
amount to much. In dismissing a defense contention during
one pre-trial hearing, the judge referred to Brice as “the
criminal,” but then instantly corrected herself—”or &! - - -
-l
fnive me, allcd criminal.” Ir. of Feb. 14, 2006, at 26.

-- 8 of 14 --

4
PUBLIC COPY - SEALED INFORMATION DELETED
rather than mere dictum. Woods v. Interstate Realty Co., 337
U.s. 535, 537 (1949) (“[WJhere a decision rests on two or more
grounds, none can be relegated to the category of obiter
dictum.”).
Barrett contains several curious features. First, in calling
defendant’s delay a “waiver” of defendant’s claim under 22
U.S.C. § 455, it completely overlooks what § 455 has to say
about waiver. Subsection 45 5(e) forbids a judge to “accept” a
waiver of any of the grounds set out in § 455(b), whereas for
§ 455(a), dealing with any instance where the judge’s
impartiality might “reasonably be questioned” (the subsection
relevant to our case), § 45 5(e) allows “waiver [to] be accepted
provided it is preceded by a full disclosure on the record of
the basis for disqualification.” Before us, the parties haven’t
argued the matter at all. At a casual first glance, however, the
requirement of “a full disclosure on the record” conjures
something far more deliberate and elaborate than mere delay,
coupled with counsel’s imputed awareness of the transcript of
the ex parte dealings.
Other courts have recognized § 455(e)’s strictures on
waiver yet gone on to insist on timeliness, i.e., to treat delay
as effecting a de facto waiver. United States v. York, 888 F.2d
1050 (5th Cir. 1929), offers perhaps the most extensive
justification. (Barrett, treating delay and waiver as
interchangeable yet not mentioning what § 455(e) had to say
on waiver, evidently saw no need for reconciling its delay rule
with the statute.) The York court acknowledged that
§ 455(e)’s bar on waiver of § 455(b) violations “suggests that
Congress believed the gain in protecting against actual bias,
prejudice, or conflict of interest outweighs the loss to judicial
economy in prohibiting waivers.” Id. at 1055. And the court
further observed that the “motivation behind a timeliness
requirement is also to a large extent one of judicial economy.”

-- 9 of 14 --

5
PUBLIC COPY - SEALED INFORMATION DELETED
Id. The “also” is a puzzler, as the language of § 455(e) on its
face made the values protected by § 455(b) trumps over
judicial economy. No matter. The court went on to offer this
rationale for a timeliness requirement:
[TJhe gains in judicial economy from a timeliness
requirement are greater than those from permitting
waiver. Since both parties must agree to any waiver, no
new trial will be saved by waiver once the outcome of
trial has been determined. In fact, once any party senses
that the proceedings have been favorable to it up to that
point, no waiver is likely to occur. On the other hand, a
timeliness requirement will proscribe motions that would
have invalidated a hilly completed trial.
Id. In other words, the gain in judicial economy from a
timeliness requirement exceeds the hypothetical gain from
allowing waiver, so it is reasonable, the court thought, to
suppose that Congress was not ruling out a timeliness
requirement. This is true, of course, to the extent that one
focuses exclusively on waivers after the litigation outcome is
known or at any rate heavily foreshadowed: in those cases,
waiver achieves no judicial economy at all, as the loser,
having little or no incentive to preserve the outcome, will not
waive. But as waivers normally will not occur in those
circumstances at all, it seems very doubtful that the scenario
played any role in Congress’s resolution of the balance.
Moreover, the argument does little to refute the rule’s
apparent anomaly: while recognizing that deliberate waiver of
§ 455(b) values is impossible, it allows an easy loss of those
values through mere neglect. And while deliberate waiver of
§ 455(a) is possible but seemingly very difficult, occurring
only—so far as appears on the text of the statute—through a
rather formal ceremony, the timeliness rule makes loss easy

-- 10 of 14 --

6
PUBLIC COPY
-
SEALED
INFORMATION DELETED
through
neglect. As an
absolute
bar, a
timeliness requirement
of
course entirely ignores the purpose
of
§
455(a), which
is
“to
promote public confidence
in
the
impartiality
of
the
judicial
process.”
H.R. Rep. No. 93-1453,
at
5
(1974).
Many courts have nonetheless accepted such
a
timelinessrequirement.
See, e.g., Kolon
Indus.
Inc.
v.
E.i
DuPont
de
Nemours
&
Co.,
—
F.3d
—,
2014
WL 1317695
(4th
Cir. Apr.
3,
2014); United
States
v.
Brinkworth,
68
f.3d
633, 639
(2dCir. 1995);
United
States
v.
Owens,
902
F.2d
1154,
1156-57
(4th
Cir. 1990);
United States
v.
Nobel, 696
F.2d
231,
23
6-37
(3d
Cir. 1982);
Delesdernier
v.
Forterie,
666
f.2d
116,
121
&
n.3
(5th
Cir. 1982).
The 7th Circuit initially read
§
455(e)
limits on waiver
as
barring any timeliness requirement,
SCA
Servs., Inc.
v.
Morgan,
557
F.2d
110, 117
(7th
Cir. 1977),
but
then noted
in
dictum
a
readiness
to
rethink the matter, Union
Carbide
Corp.
v.
US.
Cutting
Service, 782
F.2d 710, 716-17
(7thCir.
1986).
Not
only
Barrett
but the other cases insisting on
timeliness
lay great stress on a
concern—which
to
be sure
is
plausible—that
a
party might “take his
chances” with
a
judge,and then raise the
recusal issue
if
unhappy with
the outcome.
Barrett,
111
F.3d at
951
(internal quotation marks omitted).
But neither
Barrett
nor the others explains why that risk
is so
great in connection with
§
455
that an absolute bar
is the
solution, rather than, as for all
other rulings or omissions not
challenged until appeal, merely limiting
relief
to
review for
plain
error.
That omission leads directly to another frailty of Barrett:it completely disregards the distinction between waiver and
forfeiture drawn by the Supreme Court’s decision in United
States
v.
Olano, 507 U.S. 725 (1993). Because waiver
is
“the

-- 11 of 14 --

7
PUBLIC COPY
- SEALED INFORMATION DELETED
intentional relinquishment
or
abandonment
of
a
known
right,”
Id.
at
733
(citing
Johnson
v.
Zerbst, 304 U.S. 458, 464
(1938)),
a
waiver
(if
valid
and effective)
“extinguish[es]”
the
erroneous character
of
the
relevant
ruling.
Id.
By
contrast,
mere forfeiture
has
no
such effect; an error, despite the
absence
of
a
timely objection, remains
an
error
for
purposes
of
Rule
52’s
provision for review
of
“plain error.”
Id. at
73
3-34;
accord United States
v.
Laslie,
716
F.3d
612, 614 (D.C. Cir.
2013); In
re Sealed
Case,
356
f.3d
313, 317 (D.C. Cir.
2004).
Barrett
neither recognizes that plain error review
is
an
option,
nor offers an
explanation
as to
why
it
is
not enough
of
a
gaming deterrent
in the
context
of
§
455(a). The same
objection
of
course applies to the decisions
in
other circuits
that insist on
timeliness but
do
not call
it
waiver.
In fact,
many courts apply plain error review
to
§
45
5(a)
claims unchallenged
at trial. See, e.g.,
United States
v.
Berger,
375
f.3d
1223, 1227
(11th
Cir.
2004)
(reviewing
under plain error after failure
to
seek recusal below); United
States
v.
Kimball,
73
f.3d
269,
273
(10th
Cir. 1995)
(same);
United States
v.
Franklin,
197
F.3d 266, 270 (7th
Cir. 1999)
(noting the “specter
of
‘sand
bagging”
and applying plain
error review
as
a result); Baldwin
Hardware
Corp.
v.
FrankSuEnter. Corp.,
78
f.3d
550, 557
(fed.
Cir. 1996)
(applying
plain error); United States
v.
Schrether,
599
F.2d
534, 535
(3dCir. 1979)
(noting the concern about gaming and applying
plain error standard
as a
result); see also Noli
v.
Comm
‘r,
860
f.2d
1521, 1527
(9th Cir. 1988).
Indeed, even the government may have
no
faith in the
waiver theory, or even waiver
in
timeliness’s clothing. In its
briefing here it
makes no claim
of
either version and offers no
citation to
Barrett.
It
rather argues, in alignment with the
many circuits applying more standard remedies for an

-- 12 of 14 --

8
PUBLIC COPY
- SEALED INFORMATION DELETED
omission by counsel, merely that we resolve the issue under a
plain error standard. Resp. Br. at 17; see also Brief for United
States at 20-2 1, United States v. Lang, 364 F.3d 1210 (10th
Cir. 2004) (No. 02-4075).
Were it not for Barrett, we would almost certainly regard
Brice’s failure to raise the issue earlier as forfeiture, not
waiver, and we would review under plain error (absent other
obstacles). On the facts of this case, I believe the impartiality
of the judge “might reasonably be questioned,”
§ 455(a), even
if reviewed under the plain error standard. As Brice doesn’t
challenge the trial outcome but asks only for resentencing, it is
governed by our rule cutting more slack for assertions of plain
error when only sentencing is at stake. United States v. Saro,
24
f.3d 283, 287-88 (D.C. Cir. 1994).
The panel opinion also cites a second, independent reason
for withholding review. Under conventional appellate
procedures, we do not consider arguments raised for the first
time on a second appeal if they might have been raised on
initial appeal. Though generally true, this is “a prudential rule
rather than a jurisdictional one,” Crocker v. Piedmont
Aviation, Inc., 49 F.3d 735, 739-40 (D.C. Cir. 1995),
motivated by a “practical concern for judicial economy,” id. at
740. Accordingly, we “always possess[J discretion to reach”
issues not raised on initial appeal, though this discretion “is
normally exercised only in exceptional circumstances, where
injustice might otherwise result,” id. (internal quotation marks
omitted); cf. US. National Bank
of Oregon v. Independent
Ins. Agents
of America, Inc., 50$ U.S. 439, 447 (1993). The
ex parte cooperation of the court and prosecutor in this case
certainly strikes me not only as “exceptional” but also as
creating exceptional circumstances. See Yesudian ex rel.
United States v. Howard Univ., 270 F.3d 969, 971 (D.C. Cir.

-- 13 of 14 --

9
PUBLIC COPY
- SEALED INFORMATION DELETED
2001) (exercising such discretion, and noting that the bar
presented by a “failure to raise an issue in an initial appeal is
far from absolute”).
So, contrary to the majority I do not view our appellate
procedures as controlling the outcome of this case. Rather,
we have a straightforward application of Barrett, and are
therefore bound to follow it, however much it may be in
tension with 2$ U.S.C.
§ 455, with Olano, and with our
standard treatment of claimed errors not raised in district
court,

-- 14 of 14 --