Fourth Circuit airs internal dispute about whether to criticize the Government’s appellate litigating position

By Jonathan Biran

The Fourth Circuit issued an unusual published sealing order last week in United States v. Adams, a case from the District of Maryland in which the named defendant and more than 20 others were charged under RICO for their alleged roles in the “Dead Man Incorporated” (DMI) gang. Adams, in particular, was alleged to have conspired to murder several people and to have participated in several such murders. Much of the record is sealed, but we do know that Adams entered a guilty plea in the district court, although it is not clear to what charge or charges. According to the docketing statement that Adams’ first appellate attorney filed, Adams was sentenced on May 3, 2013, and noted a timely appeal on May 14, 2013.

In a sealed opinion, the Fourth Circuit panel (made up of Judge King, Judge Agee, and Senior Judge Davis) ruled unanimously that the district judge had committed plain error, and remanded the case for further proceedings. The Court explained in the sealing order (written by Judge King and entered for publication with the agreement of all three judges) that it was sealing its opinion “due to the sensitive nature of its contents.” Judge King also noted that most of the proceedings in the district court, substantial parts of the briefs on appeal, and the oral argument before the Court remained under seal. It seems clear that the Court published its sealing order for the sole purpose of airing a dispute between, on the one hand, Judges King and Davis, and, on the other, Judge Agee, about whether to criticize the Government for having failed to confess plain error.

The sealing order recites that Judge Agee joined the opinion for the Court, except for one footnote (footnote 10) that Judge King attached to the sealing order. The footnote that Judge Agee declined to endorse reads as follows:

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.

Sealing order at 2. Judge King then noted that Judge Agee’s and Judge Davis’ concurring opinions discussing footnote 10 (with partial redactions to Judge Agee’s concurrence for the same reason that the majority opinion was sealed) were attached to the sealing order.

In his concurring opinion, Judge Agee said that

[s]ometimes 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). … If we too eagerly and too often comment on the Government’s strategic choices, then the 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 [REDACTED] 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.  [REDACTED MATERIAL – PRESUMABLY A STRING CITE OF CITATIONS].

Of course, we have ultimately rebuffed the Government’s position. But the vacatur alone should be enough of a rebuke.

Sealing order at 5-6.

My educated guess is that the word redacted after “unobjected-to” above is “sentencing.” There aren’t any other modifiers I can think of that frequently precede “error” in such formulations. The Court’s reference to Puckett v. United States – a plain error sentencing case – also seems to be a bit of a tell. And, if there were any doubt what kind of error was at issue here, the unredacted portion of the Government’s supplemental brief concedes plain error regarding the district court’s calculation of Adams’ advisory Sentencing Guidelines range (but argues that Adams failed to meet the third and fourth prongs of the plain-error test: that the plain error affected his substantial rights, and that it calls into question the integrity of the proceedings, i.e., resulted in a miscarriage of justice).

In response to Judge Agee, Judge Davis wrote his own concurring opinion, taking issue with Judge Agee’s deference to the Executive Branch:

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.

….

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 and concern for the appearance of fairness, specifically, than judges? And where is it more appropriate to carry on that dialogue than in the opinions we issue resolving actual cases?

Sealing order at 8-9 (internal quotation marks and citations omitted).

Judge Davis then went on in language seemingly meant to invoke the recent riots in Baltimore following the death of Freddie Gray, other recent incidents of deaths of unarmed African-American men at the hands of police in other parts of the country, and the unrest that resulted:

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.”

Sealing order at 10.

Although it is an uncommon occurrence, the Fourth Circuit and other federal appellate courts have been known to criticize the Government’s litigation position and/or briefing in criminal appeals. See, e.g., United States v. Venable, 666 F.3d 893, 904 n.4 (4th Cir. 2011) (criticizing the Government’s use of “disrespectful and uncivil language” in its brief); United States v. Lopez-Avila, 678 F.3d 955, 957 (9th Cir. 2012) (criticizing the Government for failing to give “a single hint of appreciation of the seriousness of the [trial AUSA’s] misconduct within the pages of the government’s brief on appeal” and instead attempting “to shift blame” for the error caused by the prosecutor’s misconduct to the defendant’s trial counsel); United States v. Kojayan, 8 F.3d 1315, 1320-23 (9th Cir. 1993) (lengthy critique of the Government’s failure to concede error due to prosecutorial misconduct). But the conduct that typically gets the Government’s appellate lawyers called out by the Courts of Appeals does not include taking issue with a defendant’s argument that a Sentencing Guidelines error committed by the district court led to a miscarriage of justice and therefore satisfies the fourth prong of plain-error review.

Without knowing specifically what the district court’s error was in calculating Adams’ Sentencing Guidelines range, what sentence the district court imposed on Adams, and what the district court said about why such a sentence was appropriate, it is difficult to assess the Government’s decision to defend the sentence on appeal. However, having been the appellate chief at the U.S. Attorney’s Office in Maryland, and having participated in discussions about whether to confess error, I can say that these decisions are not made lightly within the Department of Justice, a point confirmed by Deputy Solicitor General Michael R. Dreeben:

Even when the lawyers in the Solicitor General’s Office doubt the correctness of a lower court decision, confession of error is not undertaken lightly. Confessions of error draw strong feelings from courts that feel that the government has pulled the rug out from under them and from prosecutors who see convictions abandoned.  Before confessing error, the Solicitor General takes into account the reasonableness of the view that prevailed below, any reliance interests of the government and the public, the impact on victims, the effect on the credibility of the United States, and other factors.

Michael R. Dreeben, The Role of the Solicitor General in the Department of Justice’s Appellate Process, United States Attorney’s Bulletin, at 10 (Jan. 2013). (You can find Mr. Dreeben’s article as well as additional articles of interest by DOJ appellate experts here.)

Especially when the standard of review in a sentencing appeal is plain error – which, as noted above, places the burden on the defendant to show among other things a miscarriage of justice – it is difficult for the Government to concede that the sentence is invalid if there is a colorable argument that the district judge would have imposed the same sentence regardless of the calculation of the advisory guidelines range. Given how complicated some Sentencing Guidelines issues are and the fact that district judges calculate guideline ranges as part of all federal sentencing hearings, the Government would be reluctant to agree to a sentencing do-over in every case where there is an error – even a plain one – in the calculation of a defendant’s advisory-guidelines range that appears not to have affected the district judge’s ultimate sentencing decision.

In general, I certainly agree with Judge Davis that judges should speak out when they see prosecutors and others in the law enforcement community engaging in conduct that undermines the public’s confidence in the criminal-justice system. But, although I don’t know all the facts and circumstances of Adams’ sentencing because of the sealed records, I tend to doubt that, if all of those circumstances became known, the public would be outraged about the Government’s litigation position on appeal. To the contrary, the public might well be troubled if the Government didn’t ask the Court to decide whether Adams had met his burden under the plain-error test.

Adams pled guilty to at least one charge in an indictment that accused him of participating in several gang-related murders. Assuming that the district court imposed a very lengthy sentence, the public probably would be concerned about the Government essentially joining in a request for Adams to be resentenced without first asking the Court to decide the merits of Adams’ claim of plain sentencing error. The district judge also might have scratched his head if the Government had conceded that resentencing was necessary, especially if the district judge knew that he was going impose the exact same sentence after going through the formality of a resentencing hearing.

A couple of other things to note:

First, while Judge Agee has a wonderful judicial temperament and is always courteous at oral argument, I don’t think any Fourth Circuit practitioner considers him to be a shrinking violet when it comes to expressing his opinion about how the parties are handling an appeal. As was noted on this Blog in February, in a recent case Judge Agee criticized government lawyers – in that particular case, EEOC attorneys – for “disappointing litigation conduct.” I tend to believe that, if Judge Agee had viewed the Government’s position in Adams as patently unreasonable, he would have signed on to footnote 10.

Second, Adams’ appellate counsel initially filed an Anders brief, meaning that, in counsel’s opinion, the issues raised in the brief were not meritorious. The issues that counsel raised must have related to the matters that caused the district judge to seal much of the record in the district court, because most of counsel’s Anders brief is redacted. After that brief was filed, the Government filed a notice that it would not file a response. This is a boilerplate letter that the U.S. Attorney’s Office almost always files in response to an Anders brief. The text of the letter says:

In the above-captioned case, counsel for Appellant … has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967). See Brief of Appellant at 2, 5-6, 21. By doing so, appellate counsel acknowledges that there are no non-frivolous grounds for appeal. See Anders, 386 U.S. at 744. Because our review of the record leads us to the same conclusion, the United States elects not to file an answering brief in response to the Brief of Appellant, unless the Court determines that the appeal is not wholly frivolous. Id.

When an Anders brief is filed, the Court is required to review the entire record to satisfy itself that no potential errors are evident. In the vast majority of cases, that review leads to an affirmance of the judgment on appeal, without the need for the Government to file a response brief. This case was one of the rare exceptions. Three months after the Government notified the Court that it was not going to file a brief, the Court directed the parties to file supplemental briefs. So this case is a good illustration of why it’s important that the Court conduct that independent review of the entire record before affirming in an Anders context.

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