                              PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 13-4360


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

           v.

JOHN ADAMS, a/k/a L.J., a/k/a Little Johnny,

                Defendant – Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Richard D. Bennett, District Judge.
(1:11-cr-00547-RDB-11)


Argued:   January 29, 2015                 Decided:   June 1, 2015


Before KING and AGEE, Circuit Judges, and DAVIS, Senior Circuit
Judge.


Vacated and remanded by published opinion, which is filed under
seal by published order. Judge King wrote the opinion, in which
Judge Agee joined except as to footnote 10 and Senior Judge
Davis joined in full.   Judge Agee and Senior Judge Davis wrote
concurring opinions.   Judge King directed entry of the sealing
order with the concurrence of Judge Agee and Senior Judge Davis.


ARGUED: Amy Lee Copeland, ROUSE & COPELAND, LLC, Savannah,
Georgia, for Appellant. Christopher John Romano, OFFICE OF THE
UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.   ON
BRIEF: Rod J. Rosenstein, United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
                                 SEALING ORDER


KING, Circuit Judge:

      The Court’s opinion in this matter is filed under seal due

to   the    sensitive   nature    of   its   contents.       Premised    on   the

conclusion that the district court committed plain error, the

Court’s     opinion   vacates    and   remands     for   further   proceedings.

Judge Agee joined in the Court’s opinion except as to footnote

10, which reads:

      We are somewhat surprised that the government failed
      to confess plain error on appeal and thereby enhance
      the integrity of judicial proceedings.    We are again
      reminded of the Supreme Court’s decision in Berger v.
      United States, where the United States Attorney was
      properly described as representing a sovereign “whose
      obligation . . . in a criminal prosecution is not that
      it shall win a case, but that justice shall be done.”
      See 295 U.S. 78, 88 (1935).     As Justice Sutherland
      further explained, the public must have “confidence
      that these obligations . . . will be faithfully
      observed,” and that prosecutors will strive to ensure
      fairness and justice. Id.

Senior Judge Davis joined in the Court’s opinion in full.

      The    concurring   opinions     of    Judge   Agee   and    Senior   Judge

Davis each discuss footnote 10.              Those concurring opinions are

attached to this order, although Judge Agee’s concurring opinion

is   partially   redacted   for     the     same   reason   that   the   Court’s

opinion is hereby sealed.




                                        2
       Nearly all the record of this matter — including most of

the proceedings conducted in the district court, a portion of

the public docket, substantial aspects of the appellate briefs,

and the oral argument of this appeal — has been and remains

sealed.     As specified in footnote 11 of the Court’s opinion, the

district court should, on remand, “consider alternatives [to]

sealing the [entirety of the] record” and carefully “weigh the

competing interests at stake.”      Stone v. Univ. of Md. Med. Sys.

Corp., 855 F.2d 178, 181-82 (4th Cir. 1998); see also Va. Dep’t

of State Police v. Wash. Post, 386 F.3d 567, 576 (4th Cir.

2004).    Public access to judicial proceedings is consistent with

the “First Amendment and the common-law tradition that court

proceedings are presumptively open to public scrutiny.”            Doe v.

Pub. Citizen, 749 F.3d 246, 265 (4th Cir. 2014); see also In re

The Wall St. Journal, No. 15-1179, 2015 WL 925475, at *1 (4th

Cir.   Mar.   5,   2015)   (explaining   that   the   public    “enjoys   a

qualified     right   of   access   to    criminal    trials,     pretrial

proceedings, and documents submitted in the course of a trial”

(internal quotation marks omitted)).        Accordingly, the parties —

particularly the government — should notify the district court

and this Court if sealing of the record (in whole or in part) is

no longer necessary.

                                         For the Court

                                         /s/ Patricia S. Connor, Clerk

                                    3
AGEE, Circuit Judge, concurring:



                                                                                          I write

separately, however, to state my disagreement with footnote ten

of   the    majority         opinion,      which       suggests      that    the    Government

should not have pursued this appeal at all.

       The Government possesses “broad” prosecutorial discretion.

Wayte      v.    United       States,      470    U.S.       598,    608    (1985),          and    it

exercises that discretion when choosing when or how to pursue an

appeal, United States v. Fernandez, 887 F.2d 465, 470 (4th Cir.

1980).      Sometimes the Government may press an argument on appeal

that, from our position, seems less convincing.                               But we should

expect     some       aggressiveness,        as       the    Government      is     obliged        to

“prosecute           the    accused   with       earnestness         and    vigor.”           United

States v. Agurs, 427 U.S. 97, 110 (1976).                            Thus, “[i]t should be

a rare occasion when judges criticize, and thereby intrude into,

a    legitimate        exercise       of   prosecutorial            discretion.”              United

States v. Bonner, 363 F.3d 213, 219 (3d Cir. 2004) (Smith, J.,

concurring).               After   all,    “prosecutorial           decisions       .    .    . are

“particularly ill-suited for judicial review.”                              United States v.

Richardson,           856     F.2d    644,       647       (4th     Cir.    1988)       (internal

quotation        marks       omitted).       If       we    too   eagerly     and       too    often

comment         on     the    Government’s            strategic       choices,          then       the



                                                  4
Government    could     become    a   less   zealous    advocate    --    and   our

adversarial system of justice would suffer for it.

      This case does not present one of those rare occasions when

we   should   disparage    a     coordinate    branch    for   doing     what   the

Constitution and its statutory mandate charge it to do.                         The

Government here faced a claim of unobjected-to                             error.

Certainly,    it   is    “difficult”     for   the     ordinary    defendant    to

establish plain error.           Puckett v. United States, 556 U.S. 129,

135 (2009).        And some of our prior decisions suggested that

reversal in circumstances like these was especially unlikely.




                                        5
     Of   course,   we   have   ultimately   rebuffed   the   Government’s

position.   But the vacatur alone should be enough of a rebuke.

Thus, I join the majority except as to footnote ten, preferring

to leave that portion of the opinion unsaid.




                                     6
DAVIS, Senior Circuit Judge, concurring:

       I am pleased to join in full Judge King’s excellent opinion

for the panel.

       A brief word is in order, however, in response to our good

friend’s concurring opinion, in which exception is taken to the

unexceptional     observations      set       forth   in    footnote   10   of   the

majority opinion. Our friend seems to think we are somehow being

too harsh on the government, and perhaps operating outside the

bounds of our adjudicative responsibilities, as well, in making

the comments in that footnote, writing, in part:

       Thus, “[i]t should be a rare occasion when judges
       criticize, and thereby intrude into, a legitimate
       exercise of prosecutorial discretion.” United States
       v. Bonner, 363 F.3d 213, 219 (3d Cir. 2004) (Smith,
       J., concurring).

Ante at 4.

       Lest the reader misapprehend the true import of the brief

comment taken from Judge Smith’s concurring opinion in the Third

Circuit’s Bonner case, however, an elaboration is crucial. In

Bonner,    upon    a   government    appeal,          the   court   reversed     the

district court’s grant of the defendant’s motion to suppress

evidence, finding that the district court erred in concluding

that    local     police   officers       lacked       reasonable      articulable

suspicion to chase on foot and tackle a motorist who fled from a

legitimate traffic stop. 363 F.3d at 215, 218. A similar motion

had been granted by a state court judge, after which (during the

                                          7
pendency of the Commonwealth’s appeal) a federal prosecution was

commenced based on the same underlying conduct.

     Although       Judge    Smith   concurred      in   the   reversal     of   the

suppression order, he also specifically and explicitly approved

a portion of Judge McKee’s full-throated dissent, in which Judge

McKee    strongly    criticized      state    and   federal     prosecutors      for

decisions our friend apparently would view as mere “strategic

choices”    that    should    lie    beyond   the    reach     of   a   legitimate,

thoughtful critique by the members of the Third Branch. *


     *
         Judge Smith wrote:

          Finally, although I join Judge Cowen in reversing
     the District Court, I echo the sentiments of Judge
     McKee expressed in Part III of his dissent.

          It should be a rare occasion when judges
     criticize, and thereby intrude into, a legitimate
     exercise of prosecutorial discretion. Nor should we
     routinely   question   in  our     opinions  the   policy
     decisions   of   Congress   to    federalize   what   has
     traditionally   been state     law   street  crime.   Our
     institutional role as judges is limited by our
     jurisdiction and by the comity and respect we owe to
     coordinate branches of government.

          That being said, the instant case presents a
     series of events which the dissent characterizes as a
     prosecutorial “switcheroo.” I cannot disagree with
     that characterization, and I share the “concern for
     the appearance of fairness” expressed by Judge McKee.
     It is one thing for the government to assume an
     investigation initiated by state law enforcement
     officials, or even to adopt a prosecution commenced by
     state prosecutors. It is quite another to seek a
     federal indictment where the federal interest in the
     case is recognized only after state prosecutors have
(Continued)
                                        8
     Unlike     judges,      such     as       our   concurring     friend,     who

apparently believe it is never appropriate for those of us in

the Judicial Branch to express reservations or disapproval of

manifestly    irregular,     if     not    illegal,   “strategic     choices”    by

prosecutors, I believe judges need to say more, not less, to the

political branches about the serious deficits in our criminal

justice system. Judges McKee and Smith plainly agree:

     Although we have jurisdiction here and must exercise
     it, this procedural history does not reflect well on
     the   criminal  justice   system  and   undermines the
     appearance of fairness so important to its proper
     functioning. “[T]o perform its high function in the
     best way[,] ‘justice must satisfy the appearance of
     justice.’ ” In re Murchison, 349 U.S. 133, 136 (1955)
     (quoting Offutt v. United States, 348 U.S. 11, 14
     (1954)). In the future, I would hope that concern for
     the appearance of fairness will constrain prosecutors
     from engaging in the kind of unexplained tactical
     manipulation that appears so evident here.

Bonner, 363 F.3d at 230 (McKee, J., dissenting). And thankfully,

they are not alone. See, e.g., United States v. Ingram, 721 F.3d

35, 43 n. 9 (2d Cir. 2013) (Calabresi, J. concurring) (“[W]e

judges   have   a   right—    a   duty     even—     to   express   criticism    of




     given the case their best shot in the state courts and
     lost on an issue of state law. Not only does such a
     tactic offend fundamental notions of fairness, it is
     contrary to traditional notions of our federalism.

United States v. Bonner, 363 F.3d 213, 219-20 (3d Cir. 2004)
(Smith, J., concurring)(emphasis added).


                                           9
legislative judgments that require us to uphold results we think

are wrong.” (footnotes and citations omitted)).

       Indeed,      who    is    better      positioned            to    dialogue      with    the

legislative and executive branches about the criminal justice

system generally, and about “fundamental notions of fairness,”

Bonner, 363 F.3d at 220 (Smith, J., concurring), and “concern

for    the    appearance         of    fairness,”            id.    at    230      (McKee,      J.,

dissenting), specifically, than judges? And where is it more

appropriate to carry on that dialogue than in the opinions we

issue resolving actual cases?

       Contemporary        discord          in        this     country        we      all     love,

especially in stressed communities where interaction with the

criminal justice system is a regular and dispiriting occurrence

for many residents, might well be reduced if we judges better

used our voices to inform and educate the political branches

about how the decisions they make actually operate down here on

the ground floor of the criminal justice system. In an era of

mass    incarceration           such   as    ours,           any   fear       that    restrained

judicial      commentary          on    dicey          prosecutorial            practices       or

“strategic       choices”         might      result           in    “the       Government        []

becom[ing]     a    less    zealous       advocate,”           ante      at   24-25,     is    most

charitably described as fanciful.

       In    sum,   when    judges      “see          something”        judges       should   “say

something.”

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