PUBLISHED

Filed: July 21, 2004

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 02-4844

AGNES HOLBROOK,

Defendant-Appellant. 

ORDER

Appellant filed a petition for rehearing and rehearing en banc. 

Judges Williams and Duncan voted to deny the petition for rehearing, and Judge King voted to grant panel rehearing. 

A member of the Court requested a poll on the petition for rehearing en banc. Judges Widener, Niemeyer, Michael, Motz and King

voted to grant rehearing en banc. Chief Judge Wilkins and Judges

Wilkinson, Luttig, Williams, Traxler, Gregory, Shedd, and Duncan

voted to deny rehearing en banc. 

The petition for rehearing is denied, and, because the poll on

rehearing en banc failed to produce a majority of judges in active service in favor of rehearing en banc, the petition for rehearing en banc

is also denied. Judge King wrote an opinion dissenting from the

denial of rehearing en banc. 

For the Court

/s/ Patricia S. Connor

Clerk 
KING, Circuit Judge, dissenting from denial of rehearing en banc: 

For the reasons set forth in my dissent from the opinion of the

panel majority, United States v. Holbrook, 368 F.3d 415, 426-33 (4th

Cir. 2004), I now dissent from the court’s denial of en banc consideration of this appeal. I write again to further emphasize my view that

this case presents an issue of exceptional importance warranting such

consideration, in that the opinion of the majority threatens the integrity of the criminal justice process in this Circuit. 

The relevant facts underlying this appeal — the terms of the Plea

Agreement written by the Government — undermine the ruling of the

majority. The only provision of the Agreement under which the Government was entitled to proceed to trial provides that, in the event of

a breach by Holbrook, the Government may "declare this Agreement

void and proceed to trial." In authorizing the Government to hold

Holbrook to her guilty plea on Count One while nonetheless proceeding to trial on Count Two, the panel majority simply rewrote the

Agreement to facilitate its ruling — something a court must not do.

It has thereby contravened elementary principles applicable to plea

agreements, and it has disregarded precedent. 

Our Court has, until today, consistently adhered to the principle

that a government that abides by its commitments "is the essence of

liberty under law, [and] the harm generated by allowing the government to forego its plea bargain obligations is one which cannot be tolerated." United States v. Peglera, 33 F.3d 412, 414 (4th Cir. 1994).

Consistent therewith, if our criminal justice system is to function

properly and efficiently, the Government must abide by its commitments, its word must be its bond, and deviations therefrom cannot be

countenanced. While the panel majority purports to recognize these

applicable principles, see Holbrook, 368 F.3d at 420 (citing relevant

precedent from our Circuit), it merely cites them in passing, ignoring

the substance of our precedent altogether. En banc consideration of

Ms. Holbrook’s appeal is thus warranted in order to maintain uniformity in the decisions of our Circuit. See Local Rule 35(a) (en banc

consideration appropriate in order to "maintain uniformity of the

court’s decisions"); see also Spicer v. Va. Dep’t of Corrs., 66 F.3d

705, 711 n.* (4th Cir. 1995) (en banc). 

2 UNITED STATES v. HOLBROOK
In sum, the panel majority has contravened settled precedent,

authorizing and permitting the Government to renege on its obligations. Our failure to award en banc consideration sends the wrong

message — that this Court will not compel the Government to uphold

its obligations to criminal defendants and to the judiciary. This is both

unfortunate and deeply disappointing, and I respectfully and strenuously dissent.

UNITED STATES v. HOLBROOK 3