United States v. Jaron Brice, 748 F.3d 1288

Brice was convicted in 2006 for running a sex‑trafficking operation and sentenced to 30 years; conviction was affirmed but remanded for limited sentencing fact‑finding.
On remand the district court resentenced Brice to 25 years (below Guidelines); Brice appealed again, raising new impartiality/recusal arguments based on a February 21, 2006 ex parte sidebar and related pretrial remarks.
The ex parte sidebar shows the judge and prosecutor arranging a staged courtroom entry for a detained prosecution witness so the jury would see her and the defendant together; the judge directed marshals to treat the witness "more like a victim than a criminal."
Brice did not raise the impartiality/recusal claim in his initial appeal, despite access to the February 21 trial transcript (which was included in the joint appendix on the first appeal).
The panel declined to reach the merits, holding Brice waived/forfeited the claim by not raising it earlier and noting the governing precedent that arguments available on an initial appeal are normally forfeited on a later appeal after remand.
The opinion notes Brice may pursue ineffective assistance of appellate counsel under 28 U.S.C. § 2255 for failing to raise the impartiality claim on the first appeal.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the district judge’s conduct (ex parte sidebar and arranged witness entry) required recusal under § 455(a)	Brice: judge’s conduct created a reasonable question about impartiality and warranted recusal	Government: claim was not timely raised on initial appeal; merits need not be reached	Not reached on merits — claim barred because it could and should have been raised on initial appeal
Whether failure to raise recusal/impartiality promptly is waived/forfeited and precludes appellate review	Brice: appellate counsel omitted the argument; should be considered now	Government: procedural default/waiver prevents consideration on second appeal; alternatively review inappropriate	Court: governed by precedent (Barrett/Henry) — failure to raise within a reasonable time or on initial appeal bars review on second appeal; affirmed district court
Availability of other remedies for failure to raise the claim on first appeal	Brice: seeks review now on second appeal	Government: procedural bars apply; but collateral relief may be available	Court: collateral § 2255 is available to raise ineffective‑assistance-of‑counsel for failing to raise the impartiality claim on the first appeal

United States v. Barrett, 111 F.3d 947 (D.C. Cir. 1997) (motion to recuse must be filed within a reasonable time or is waived)
United States v. Henry, 472 F.3d 910 (D.C. Cir. 2007) (arguments that could have been raised on initial appeal generally cannot be raised on a later appeal after remand)
Hartman v. Duffey, 88 F.3d 1232 (D.C. Cir. 1996) (failure to pursue an argument in an earlier appeal forfeits appellate review later)
United States v. Olano, 507 U.S. 725 (1993) (distinguishes waiver from forfeiture and explains plain‑error review)
United States v. Saro, 24 F.3d 283 (D.C. Cir. 1994) (more lenient plain‑error approach where only sentencing is affected)
Yesudian ex rel. United States v. Howard Univ., 270 F.3d 969 (D.C. Cir. 2001) (exercise of appellate discretion to reach issues not raised earlier in exceptional circumstances)
Woods v. Interstate Realty Co., 337 U.S. 535 (1949) (when a decision rests on multiple grounds, none may be treated as dictum)
United States v. York, 888 F.2d 1050 (5th Cir. 1989) (supports timeliness requirement for recusal motions while discussing § 455 implications)