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
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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
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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
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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)
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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).
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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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