United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 24, 2013 Decided May 6, 2014

Reissued May 16, 2014

Reissued February 6, 2015

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 M. 

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.
2

Opinion for the Court filed by Circuit Judge 

KAVANAUGH, with whom Senior Circuit Judge SENTELLE

joins.

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 teenaged

girls 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. 2008). 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 belowGuidelines 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 

the courtroom for her testimony. The judge concluded that 

the witness should enter in the same way as other innocent 

witnesses, from the back of the courtroom with the jury 
3

present. 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. 

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 

inappropriate to 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, 88 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.”).

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 
4

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. 2008) (No. 06-

3135).1

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, and we do not find any 

exceptional circumstances to excuse the failure to do so. 

Whether Brice did not raise the issue 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.

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 

 

1

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 

an impartiality argument about that comment in his initial appeal, 

but he did not do so.
5

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.
WILLIAMS, Senior Circuit Judge, concurring in the 

judgment: In a previously published opinion in this appeal, the 

court rejected Brice’s claim of judicial bias under “[t]wo 

separate lines of this Court’s precedents.” United States v. 

Brice, 748 F.3d 1288, 1289-90 (D.C. Cir. 2014). First, his

claim was “waived” under United States v. Barrett, 111 F.3d 

947 (D.C. Cir. 1997), because he failed to raise it within a 

“reasonable time” after the grounds for recusal were known.

Brice, 748 F.3d at 1289 (quoting Barrett, 111 F.3d at 951). 

Second, his claim was barred by our rule that “absent 

exceptional circumstances, ‘where an argument could have 

been raised on an initial appeal, it is inappropriate to consider 

that argument on a second appeal following remand.’” Brice, 

748 F.3d at 1289 (quoting United States v. Henry, 472 F.3d 

910, 913 (D.C. Cir. 2007)).

I wrote separately to criticize Barrett, but agreed that it 

bound us. Brice, 748 F.3d at 1290-94 (Williams, J., 

concurring). As to the rule of appellate forfeiture articulated 

in Henry, I regarded Brice’s allegations of judicial bias as

“exceptional” under that rule, and thus, but for Barrett, I 

would have reversed and remanded. Id. at 1294-95. 

Brice petitioned for rehearing en banc, seeking to 

overturn Barrett and to reverse the panel’s application of the 

rule articulated in Henry. I called for a vote on the petition, in 

order for the full court to address the viability of Barrett; I did 

not regard the application of Henry (forfeiture of a claim by 

omission in a prior appeal) as independently en banc-worthy. 

The majority now reissues its initial opinion with all 

references to Barrett deleted. As a practical matter this moots 

the en banc. The full court should not spend valuable time on 

a case that doesn’t turn on an en banc-worthy issue. 

Accordingly, I have withdrawn my call for a vote on the 

petition.
2

Yet the results are troubling beyond this case. If the 

panel majority believed Barrett to be sound, I would have 

expected it to invite the full court to vote the en banc proposal 

down on the merits. Instead, by stripping all references to 

Barrett from the opinion, the majority merely preserves it in 

aspic for future occasions. 

This silent treatment of Barrett creates several 

anomalies. First, a future defendant with a plausible bias 

claim not initially invoked “within a reasonable time after the 

grounds for recusal [we]re known,” may decline to raise his 

claim on appeal; such a defendant would reasonably believe

that Barrett is the law of the circuit and not want to waste 

precious space or time with a claim that could prevail only via 

an en banc. And if and when, notwithstanding Barrett, a 

defendant does raise such a claim, both parties will (again) 

spend time and pages briefing the status of that case, and the 

court will (again) spend time reviewing and deciding it. 

I continue to believe that Barrett was wrongly decided; 

but of course it binds me. I also continue to regard the 

majority’s application of the Henry rule as incorrect. I 

therefore concur in the result for the reasons I gave initially. 

Below I append a copy of my earlier separate opinion, not 

because I regard its prose as deathless but so that the reader 

can see the whole picture in one place. (One citation is 

updated to reflect publication in F.3d.)

A P P E N D I X

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 28 U.S.C. § 455(a). It 
3

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 prior 

appeal 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 judge

and 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 which

he 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:

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 
4

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

first appeal (not handled by trial counsel), the transcripts 

available to counsel included the text of the ex parte sidebar.
5

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 alleged,

forgive me, alleged criminal.” Tr. of Feb. 14, 2006, at 26. 

The next day, in a discussion of the material witness’s mental

health and drug use, the defense observed that the witness had

a history of drug use. To this, the district court responded,

“Well, you should ask perhaps Mr. Brice about that,” Tr. of

Feb. 15, 2006, at 8, suggesting that any drug use by the

witness could be chalked up entirely to Brice, a government

claim that the defense contested. The thread of hostile pretrial

comments, together with other concerns no longer pressed, 

prompted the defense to move to recuse the district judge, Tr. 

of Feb 17, 2006, at 6, a motion later withdrawn after the judge 

offered assurances of impartiality, id. at 16-17. (Counsel may 

have had in mind Machiavelli’s famous caution—“Never 

strike at a king except to kill.”).

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 

rather than mere dictum. Woods v. Interstate Realty Co., 337

U.S. 535, 537 (1949) (“[W]here a decision rests on two or 

more grounds, none can be relegated to the category of obiter

dictum.”).
6

Barrett contains several curious features. First, in calling

defendant’s delay a “waiver” of defendant’s claim under 28 

U.S.C. § 455, it completely overlooks what § 455 has to say 

about waiver. Subsection 455(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), § 455(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. 1989), 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.”

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:
7

[T]he 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 fully 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 

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 timeliness

requirement. See, e.g., Kolon Indus. Inc. v. E.I. DuPont de
8

Nemours & Co., 748 F.3d 160 (4th Cir. 2014); United States 

v. Brinkworth, 68 F.3d 633, 639 (2d Cir. 1995); United States 

v. Owens, 902 F.2d 1154, 1156-57 (4th Cir. 1990); United 

States v. Nobel, 696 F.2d 231, 236-37 (3d Cir. 1982); 

Delesdernier v. Porterie, 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. U.S. Cutting Service, 782 F.2d 710, 716-17 (7th Cir. 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 

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 733-34; 

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, 
9

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 § 455(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. FrankSu

Enter. Corp., 78 F.3d 550, 557 (Fed. Cir. 1996) (applying 

plain error); United States v. Schreiber, 599 F.2d 534, 535 (3d 

Cir. 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 

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 20-21, 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 
10

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[] 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. U.S. National Bank of Oregon v. Independent

Ins. Agents of America, Inc., 508 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. 

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 28 U.S.C. § 455, with Olano, and with our

standard treatment of claimed errors not raised in district

court.