# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Arg ued S eptember 24, 2013 Decided May 6, 2014 Reissued May 16, 2014 Reissued February 6 , 2015

No. 09

- 3071

U NITED S TATES OF A MERICA

, A PPELLEE

v.

J ARON B RICE

, A PPELLANT

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: K AVANAUGH

, Circuit Judge , and W ILLIAMS and

S ENTELLE

, Senior Circuit Judges

.2

Opinion for the Court filed by Circuit Judge

K AVANAUGH , with whom Senior Circuit Judge S ENTELLE join s

.

Opinion concurring in the judgment filed by Senior Circuit Judge W ILLIAMS

.

K AVANAUGH

, 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 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 a t
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 wo me n alleged to have been sexually abused by Brice) should enter the courtroom for her testimony . The judge concluded that

the w itness should enter in the same way as other innocent witnesses, from the back of the courtroom with the jury3

present. The judge and prosecutor also discussed the possibility that one of the detained material witnesses might

assert the Fifth Amendment whe n 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.

O ur cases have set forth a general r ule 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

fol lowing 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 t he 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 ra ise 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 Februa ry 15 and 17, 2006, which o ccurred with defense counsel present and concerned several issues relating

to the material witnesses who had been detained and were potential trial witnesses. T hat is a red herring. Those transcripts are not the relevant transc ripts 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 this4

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 impar tiality 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 p recedents 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 su ch 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 t he February 15 , 2006 , pre

- trial hearing . Brice’s counsel was present at
that hearing. A t the conclusion of the relevant pre

- trial hearing s
, after initially o bjecting 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 ju dgment of the District Court.

So ordered.W ILLIAMS

, 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

“ re asonable 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 followin g 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 criticiz e Barrett , but agree d that it

bound us. Brice , 748 F.3d at 1290

- 94 (Williams, J., concurring). As to the rule of appe llate 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

. I d

. 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 ( fo rfeiture 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 does n’t tur n on an en banc

- worthy issue. Accordingly, I have w ithdrawn my call for a vote on the petition.2

Yet the results are troubling beyond this case . If the panel majority believe d 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.

Th is 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 reg ard the majority’s application of the Henry rule a s 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

W ILLIAMS

, Senior Circuit Judge , concurring in the judgment: The panel does not reach the merits of Brice ’ s claim that the district judge’s “im partiality 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). It3

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 app eal, 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 log ic 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 desig ned 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 be4

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 an d 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 prop osal 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 insist ed 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, an d 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 r eview 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 pre sentation of K.H., the district

court on other occasi ons 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

co mments, 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 h is concurring opinion. Id . at 954. But because the court appeared to rest th e outcome in part on the waiver theory, we are obliged to tre at 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 s et out in § 455(b), whereas for § 455(a), dealing with any instance where the judge’s impartiality migh t “reasonably be questioned” (the subsection relevant to our case), § 455(e) allows “ waiver [to] be accepted provided it is preceded by a f ull disclosure on the record of the basis for disqualification.” Before us, the parties haven’ t argued the matter at all. At a ca sual 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 t imeliness, i.e., to treat delay as effecting a de facto waiver. United States v. York , 888 F.2d 1050 (5th Cir. 1989), of fers perhaps the most extensive justification. ( Barr ett , treating delay and waiver as interchangeable yet not ment ioning 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) violatio ns “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 t imeliness 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 gre ater than those from permitting

waiver. Since both parties must agree to any waiver, n o new trial will be save d 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 wil l proscribe motions that would have invalidated a fully completed trial.

Id

. In other words, the gain in judicial economy from a timeliness requirement exc eeds the hypothetical gain from allowing waiver, so it is re asonable, the court thought, to suppose that Congress was not r uling 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 heavil y foreshadowed: in those cases, waiver achieves no judicial economy at all, as th e loser, having little or no incentive to preserve the outcome, will not

waive. But as waivers n ormally 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.

Moreov er, 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 absolut e bar, a timeliness requirement of course entirely ignores th e p urpose of § 455(a), which is “to promote public confid ence 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. DuPon t de8

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. Por terie , 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 plaus ible

— that a party might “take his chances” with a judge,

and then raise the recusal iss ue if unhappy with the outcome.

Barrett , 111 F.3d at 951 (int ernal quotation marks omitted).

But neither Barrett nor the othe rs explains why that risk is so great in c onnection 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 com pletely 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 relinquis hment 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 suc h effect; an error, despite the absence of a timely objection, r e mains 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 p lain 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 wai ver.

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 55 0, 557 (Fed. Cir. 1996) (applying plain error); United States v. Schreiber , 599 F.2d 534, 535 (3d Cir. 1979) (noting the co ncern about gaming and applying plain error standard as a result); see also Noli v. Comm’r , 860 F.2d 1521, 1527 (9th Cir. 1988).

Ind eed, 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 rathe r argues, in alignment with the many circuits app lyin g more standard remedies for an omission by counsel, merely th at we resolve the issue under a plain error standard. Resp. Br. a t 17; see also Brief for United

States at 20

- 21, United States v. Lang , 364 F.3d 1210 (10 th

Cir. 2004) (No. 02

- 4075).

Were it not for Barrett , we would almost certainly regard

Brice’s failure to raise the i ssue earlier as forfeiture, not waiver, and we would review under plain error (absent other obstacles). On the facts of this c ase, I believe the impartiality of the ju dge “might reasonably be questioned,” § 455(a), eve n if reviewed under the plain error standard. As Brice doesn’ t challenge the trial outcome but as ks only for resentencing, it is10

governed by our rule cutting mor e 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 revie w. Under conventional appellate procedures, we do not consider arguments raised for the first time on a second appeal if they might have be en raised on initial appeal. Though generally true, this is “ a prudential rule rather than a jurisdictional one,” Crocker v. Piedmont
Aviation, Inc. , 49 F.3 d 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 e xceptional circumstances, where injustice might oth erwise 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 co urt 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 disc retion, and noting that the bar presented by a “failure to raise a n issue in an initial appeal is far from absolute”).

So, contrary to the majority I do not view our appellate procedures as controlling th e outcome of this case. Rather,

we have a straightforward application of Barrett , and are

therefore bound to follo w it, however much it may be in tension with 28 U.S.C. § 455, with Olano , and with our

standard treatment of claime d errors not raised in district

court.