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 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.
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     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 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. 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.
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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
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.
 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.3d
947, 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 with
a 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 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, $8 F.3d 1232, 1236 (D.C. Cir. 1996)
(“We do not reach the merits of defendant’s arguments on this
issue because of the defendant’s failure to pursue it in its prior
appeal.”).
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     In this case, each of those lines of precedent applies and
 independently precludes us from reaching the merits of
Brice’s impartiality claim. In the initial appeal, Brice plainly
could have raised his impartiality argument based on the
February 21, 2006, ex parte sidebar. The relevant February
21, 2006, trial transcript necessary to raise this impartiality
issue was available to Brice’s appellate counsel during the
first appeal. Brice says that during the initial appeal, his
appellate counsel did not have access to transcripts of the
district court’s sealed pre-trial hearings on February 15 and
 17, 2006, which occurred with defense counsel present and
concerned several issues relating to the material witnesses
who had been detained and were potential trial witnesses.
That is a red herring. Those transcripts are not the relevant
transcripts for Brice’s impartiality argument based on the
February 21, 2006, ex parte sidebar. The relevant transcript is
the February 21, 2006, trial transcript. And during the initial
appeal, Brice had access to the February 21, 2006, trial
transcript. (In this appeal, Brice notably has not claimed
otherwise.) Indeed, in the initial appeal, Brice included
portions of the February 21 trial transcript in the joint
appendix, leaving no doubt that he had access to the transcript
necessary to advance this impartiality argument. See Joint
Appendix at 163-81, United States v. Brice, 296 F. App’x 90
(D.C. Cir. 200$) (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
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     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.
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      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 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:
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        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
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first appeal (not handled by trial counsel), the transcripts
available to counsel included the text of the ex parte sidebar.

    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.




     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
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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.”
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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
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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
Nemours & Co.,    —  F.3d    2014 WL 1317695 (4th Cir. Apr.
                            —,




3, 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, 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
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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. FrankSu
Enter. Corp., 78 f.3d 550, 557 (fed. Cir. 1996) (applying
plain error); United States v. Schrether, 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
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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.
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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,
