PUBLISHED
Filed: July 21, 2004
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 02-4844
AGNES HOLBROOK,
Defendant-Appellant.
ORDER
Appellant filed a petition for rehearing and rehearing en banc.
Judges Williams and Duncan voted to deny the petition for rehear-
ing, and Judge King voted to grant panel rehearing.
A member of the Court requested a poll on the petition for rehear-
ing en banc. Judges Widener, Niemeyer, Michael, Motz and King
voted to grant rehearing en banc. Chief Judge Wilkins and Judges
Wilkinson, Luttig, Williams, Traxler, Gregory, Shedd, and Duncan
voted to deny rehearing en banc.
The petition for rehearing is denied, and, because the poll on
rehearing en banc failed to produce a majority of judges in active ser-
vice in favor of rehearing en banc, the petition for rehearing en banc
is also denied. Judge King wrote an opinion dissenting from the
denial of rehearing en banc.
For the Court
/s/ Patricia S. Connor
Clerk
2 UNITED STATES v. HOLBROOK
KING, Circuit Judge, dissenting from denial of rehearing en banc:
For the reasons set forth in my dissent from the opinion of the
panel majority, United States v. Holbrook, 368 F.3d 415, 426-33 (4th
Cir. 2004), I now dissent from the court’s denial of en banc consider-
ation of this appeal. I write again to further emphasize my view that
this case presents an issue of exceptional importance warranting such
consideration, in that the opinion of the majority threatens the integ-
rity of the criminal justice process in this Circuit.
The relevant facts underlying this appeal — the terms of the Plea
Agreement written by the Government — undermine the ruling of the
majority. The only provision of the Agreement under which the Gov-
ernment was entitled to proceed to trial provides that, in the event of
a breach by Holbrook, the Government may "declare this Agreement
void and proceed to trial." In authorizing the Government to hold
Holbrook to her guilty plea on Count One while nonetheless proceed-
ing to trial on Count Two, the panel majority simply rewrote the
Agreement to facilitate its ruling — something a court must not do.
It has thereby contravened elementary principles applicable to plea
agreements, and it has disregarded precedent.
Our Court has, until today, consistently adhered to the principle
that a government that abides by its commitments "is the essence of
liberty under law, [and] the harm generated by allowing the govern-
ment to forego its plea bargain obligations is one which cannot be tol-
erated." United States v. Peglera, 33 F.3d 412, 414 (4th Cir. 1994).
Consistent therewith, if our criminal justice system is to function
properly and efficiently, the Government must abide by its commit-
ments, its word must be its bond, and deviations therefrom cannot be
countenanced. While the panel majority purports to recognize these
applicable principles, see Holbrook, 368 F.3d at 420 (citing relevant
precedent from our Circuit), it merely cites them in passing, ignoring
the substance of our precedent altogether. En banc consideration of
Ms. Holbrook’s appeal is thus warranted in order to maintain unifor-
mity in the decisions of our Circuit. See Local Rule 35(a) (en banc
consideration appropriate in order to "maintain uniformity of the
court’s decisions"); see also Spicer v. Va. Dep’t of Corrs., 66 F.3d
705, 711 n.* (4th Cir. 1995) (en banc).
UNITED STATES v. HOLBROOK 3
In sum, the panel majority has contravened settled precedent,
authorizing and permitting the Government to renege on its obliga-
tions. Our failure to award en banc consideration sends the wrong
message — that this Court will not compel the Government to uphold
its obligations to criminal defendants and to the judiciary. This is both
unfortunate and deeply disappointing, and I respectfully and strenu-
ously dissent.