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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 23-CF-0387
BRIAN C. CARRUTH, APPELLANT,
V.
UNITED STATES, et al., APPELLEES.
Appeal from the Superior Court
of the District of Columbia
(2021-CF2-006934)
(Michael K. O’Keefe, Judge)
(Argued January 20, 2026 Decided July 16, 2026)
David H. Reiter for appellant.
Daniel J. Lenerz, Assistant United States Attorney, with whom Matthew M. Graves, United States Attorney at the time the brief was filed, and Chrisellen R. Kolb, Nicholas P. Coleman, and Julian Ginos, Assistant United States Attorneys, were on the briefs, for appellee United States.
Bryan J. Leitch, Assistant Attorney General, with whom Brian L. Schwalb, Attorney General for the District of Columbia, Caroline S. Van Zile, Solicitor General, and Ashwin P. Phatak, Principal Deputy Solicitor General, Thais-Lyn Trayer, Deputy Solicitor General, and Anne A. Deng, Assistant Attorney General, were on the briefs, for appellee District of Columbia.
Alice Wang, with whom Jaclyn S. Frankfurt and Sarah McDonald were on the briefs, for Public Defender Service, as amicus curiae.
Before HOWARD and SHANKER, Associate Judges, and RUIZ, Senior Judge.
2
SHANKER, Associate Judge: In December 2021, appellant Brian C. Carruth
drove from Ohio into the District of Columbia with a rifle that was not registered in
the District and its ammunition in his pickup truck. He was charged with carrying a
rifle within the District of Columbia (D.C. Code § 22-4504(a-1)), possession of an
unregistered firearm (D.C. Code § 7-2502.01(a)), and unlawful possession of
ammunition (D.C. Code § 7-2506.01(a)(3)), and he proceeded to a jury trial, at which
he testified in his defense. When the government’s cross-examination of Mr. Carruth
ran up against an hour-long lunch break, the trial court ordered Mr. Carruth not to
“discuss the substance of” his testimony with his lawyer during the break.
Mr. Carruth was convicted of all three offenses and has appealed, arguing that
the evidence was insufficient to support his conviction for carrying a rifle under D.C.
Code § 22-4504(a-1) and that Section 22-4504(a-1) is unconstitutional under the
Second Amendment. He also asserts that all of his convictions must be vacated
because the trial court’s order barring him from discussing the substance of his
testimony with his lawyer during the lunch break violated his Sixth Amendment
right to the assistance of counsel. Because Mr. Carruth challenged the
constitutionality of a D.C. statute, we invited the District of Columbia to intervene
as an appellee and the Public Defender Service of the District of Columbia (PDS) to
participate as amicus curiae.
3
Prior to oral argument, the United States moved under D.C. Code § 17-306 to
vacate Mr. Carruth’s rifle-carrying conviction due to the government’s changed
position on the constitutionality of the statute. Mr. Carruth did not oppose the
motion, and the District of Columbia, as intervenor, also did not oppose, although it
maintained its position that the rifle-carrying statute is constitutional. PDS as amicus
opposed vacatur on the government’s motion, arguing for resolution of the
constitutionality question on the merits in a published opinion.
Following oral argument, the United States Supreme Court decided Villarreal
v. Texas, 607 U.S. 465 (2026), which addressed whether a trial court order
prohibiting a defense attorney from “‘managing’ the defendant’s testimony” during
an overnight recess violated the defendant’s Sixth Amendment right to the assistance
of counsel. Id. at 761. We invited Mr. Carruth and the United States to provide
supplemental briefing addressing Villarreal, and they did so.
We conclude that the trial court’s order barring Mr. Carruth from discussing
the substance of his testimony did not violate Mr. Carruth’s Sixth Amendment rights,
and we affirm his convictions for possessing an unregistered firearm and possessing
ammunition without a valid firearm registration certificate. We grant the
government’s motion for vacatur of Mr. Carruth’s rifle-carrying conviction under
D.C. Code § 22-4504(a-1) and remand for further proceedings in the trial court.
4
I. Background
A. Factual Background
In December 2021, Mr. Carruth traveled from his home state of Ohio to
Washington, D.C., to see the city and to pursue a possible employment opportunity
at the United States Department of the Interior. Mr. Carruth was pulled over while
driving in the District by a Metropolitan Police Department (MPD) officer who
“observed . . . a rifle case mounted to the truck bed” of Mr. Carruth’s red Chevy
Silverado. Upon being asked if he had any weapons in the truck, Mr. Carruth initially
said no and claimed that the case in the truck bed held only “camping equipment.”
But he then told a different officer that he had a rifle in the truck.
MPD officers found an unloaded Remington 783 bolt-action rifle stored in a
padlocked rifle case in the back of the cab of the truck. The weapon was not stolen,
but Mr. Carruth did not have a District of Columbia registration for it. Officers also
found live bullets in an “ammo case” located in the back of the truck cab on the
passenger side. Mr. Carruth was charged with carrying a rifle in the District,
possessing an unregistered firearm, and possessing ammunition without a valid
firearm registration certificate.
5
Mr. Carruth testified in his defense at trial. He stated that although he was
driving in the District that day, his intent was “potentially to go camping
somewhere . . . not in D.C.” and not to stay in the District for any extended period
of time. He testified that he did not initially mention a “weapon” in his truck because
the rifle was “locked and secured [while] being transported,” and, therefore, he
“would not describe this hunting rifle as a weapon.” According to Mr. Carruth, the
key for the rifle case padlock was located “on the same keychain as the key to [his]
truck,” and “the case was latched in the four locations” during his drive. He also
testified that “the firing pin and the bolt were removed from the rifle and put
separately,” rendering the rifle “not active.”
During the government’s cross-examination of Mr. Carruth, the trial court
announced a break for lunch lasting approximately one hour. Because Mr. Carruth
was still under oath, the government asked the court to instruct Mr. Carruth “not to
discuss his testimony . . . with his counsel.” The trial court agreed and directed Mr.
Carruth as follows: “So now that you’re on the stand, Mr. Carruth, you should not
be speaking to your lawyer about the substance of your testimony.” Mr. Carruth,
through counsel, objected on the ground that this restriction violated his Sixth
Amendment right to the assistance of counsel. Mr. Carruth contended that he had an
“absolute right” to discuss his testimony with his attorney “at any time, whether he’s
on the stand or not,” with the only limitation being that counsel could not “coach”
6
or “rehearse” him. The trial court overruled this objection and again instructed Mr.
Carruth: “Don’t discuss your testimony with anyone, please.”
The jury found Mr. Carruth guilty of all charges. This appeal followed.
B. Procedural Background on Appeal
Mr. Carruth initially raised three challenges on appeal: (1) that there was
insufficient evidence for a jury to convict him of carrying a rifle under D.C. Code
§ 22-4504(a-1) because he had established the affirmative defense set out in D.C.
Code § 22-4504.02(b) relating to the manner of transporting a firearm in a vehicle;
(2) that Section 22-4504(a-1) is unconstitutional as applied to him under the Second
Amendment; and (3) that the trial court’s order forbidding him from discussing his
ongoing testimony with his lawyer during the lunch break violated the Sixth
Amendment. He did not raise a Second Amendment challenge to his failure-toregister or ammunition convictions.
Initially, the United States opposed each of Mr. Carruth’s arguments,
contending that the evidence was sufficient for his rifle-carrying conviction, that the
Second Amendment did not invalidate that conviction, and that the trial court’s order
did not violate the Sixth Amendment. Because Mr. Carruth had challenged the
constitutionality of a D.C. statute, we informed the D.C. Office of the Attorney
7
General (OAG). See D.C. App. R. 44(b) (providing that if a “party questions the
constitutionality of an act of the Council of the District of Columbia” in a proceeding
where “the District of Columbia . . . is not a party in an official capacity,” the Clerk
of the Court must “certify this fact” to the D.C. OAG). In the same order, we invited
PDS to participate as amicus curiae. See D.C. App. R. 29 (governing the
participation of amicus curiae in an appeal). We granted the District’s subsequent
motion to intervene as an appellee, and PDS provided notice of its intent to file an
amicus brief.
After the District filed its brief, the United States moved to vacate Mr.
Carruth’s rifle-carrying conviction “in the interests of justice” because “[i]t is the
United States’s position that Section 22-4504(a-1) is unconstitutional” and “the
United States is not prosecuting violations of Section 22-4504(a-1).” The United
States also represented that if we granted its motion, it would “move to dismiss that
count of the indictment under Superior Court Rule of Criminal Procedure 48(a)” on
remand. Neither Mr. Carruth nor the District opposed the motion, although the
District maintained that Section 22-4504(a-1) is constitutional. PDS opposed the
United States’ motion, urging us to reach the merits of Mr. Carruth’s Second
Amendment challenge and hold that the statute is unconstitutional.
8
After oral argument, the United States Supreme Court decided Villarreal v.
Texas, 607 U.S. 465 (2026), in which it interpreted and applied two precedents
governing the interaction between the Sixth Amendment right to the assistance of
counsel and a trial court’s power to limit a testifying defendant’s contact with their
counsel during the testimony. We invited Mr. Carruth and the United States to
provide supplemental briefing “addressing (1) the effect of Villarreal on appellant’s
Sixth Amendment claim and (2) the effect of Villarreal on this court’s cases relating
to a defendant’s Sixth Amendment right to consult with counsel during trial recesses
or breaks.” They both did so.
II. The Motion to Vacate
We first address the United States’ motion to vacate Mr. Carruth’s conviction
under D.C. Code § 22-4504(a-1). No party to this appeal opposes the government’s
motion: Mr. Carruth “does not oppose” it, and the District, in its capacity as an
intervenor, “does not object” to us granting it either. Only PDS as amicus opposes
the motion, arguing that we must address the merits of the Second Amendment issue
rather than granting the motion outright in order to avoid “subvert[ing] the orderly
development of precedent on this important constitutional issue of first impression.”
It also suggests that we should not take at face value the United States’ representation
regarding its policy of not prosecuting Section 22-4504(a-1) violations, and that we
9
should decide the Second Amendment issue because “the validity of a criminal
conviction and its underlying statute are matters of public interest and importance.”
We recognize that we are not required to grant the United States’ motion to
vacate, but we likewise reject PDS’s assertions that we have an “obligation to decide
the issue” in a published, precedential opinion and that “‘the interests of justice’
require this Court to say” that the rifle-carrying statute is unconstitutional in such an
opinion. Under D.C. Code § 17-306, we may “vacate . . . any order or judgment of
a court . . . as is just in the circumstances.” And on a number of prior occasions we
have exercised our discretionary authority to grant an unopposed motion to vacate a
conviction on appeal. See, e.g., Miller v. United States, 346 A.3d 166, 169 (D.C.
2025) (granting the United States’ motion to vacate a conviction “due to a changed
position regarding the constitutionality of the statute,” where the District, as an
intervenor-appellee, “did not object” despite “maintaining its position that the statute
is constitutional”); Williams v. United States, 354 A.3d 306, 317 (D.C. 2026)
(granting the government’s unopposed motion to vacate a conviction for possession
of a large-capacity ammunition feeding device under D.C. Code § 7-2506.01(b)
where the government moved to vacate because of its “view that Section
7-2506.01(b) is unconstitutional”); Fields v. United States, 952 A.2d 859, 859 n.1
(D.C. 2008) (noting that a consolidated case had earlier been “dismissed pursuant to
the government’s unopposed motion to vacate [the appellant’s] conviction”);
10
Edwards v. United States, 328 A.2d 90, 91 (D.C. 1974) (vacating the appellant’s
assault with a dangerous weapon charge because the government “concede[d] the
validity of appellant’s second claim of error”). Cf. United States v. Hooper, 432 F.2d
604, 606 (D.C. Cir. 1970) (vacating a conviction in “the interest of justice,” and
declining to address the merits, where the government agreed that the conviction
should be vacated and the court concluded that several factors related to the “general
interest of the administration of justice” supported vacatur). 1
1
In Hooper, the D.C. Circuit relied on 28 U.S.C. § 2106, which contained language identical in relevant respects to that in D.C. Code § 17-306, in concluding that it could vacate a conviction rather than address a difficult merits question where there was “no need to resolve the issue on the merits.” 432 F.2d at 606. There, the defendant was convicted on two robbery counts and given concurrent sentences. Id. at 604. There was a “substantial question” about the validity of one of the convictions. Id. at 605. Because the court was affirming the other conviction and sentence, it saw “no reason to devote [its] time and energies to the research, and opinion-writing, incident to appropriate determination of an issue not governed by controlling precedent when no present public interest or need [was] furthered thereby.” Id. at 606. The court noted that “[i]t better serves the general interest of the administration of justice if the court limits its resources to the determination of those questions and cases that must be decided, especially in view of the ever[-]mounting docket that besets this and other appellate courts.” Id. The court emphasized its “broad discretion” under 28 U.S.C. § 2106 “to direct the entry of such judgment or order as will further the interest of justice” and noted that vacating a conviction without reaching the merits is “in the overall interest of justice” where it does not “impair any need of the government,” avoids adverse consequences for the defendant, and furthers the general interest of the administration of justice. Id. Hooper is binding precedent on this court under M.A.P. v. Ryan, 285 A.2d 310 (D.C. 1971) (recognizing that decisions of the D.C. Circuit prior to February 1, 1971, constitute the case law of the District of Columbia).
11
The question, then, is whether we should grant the government’s motion in
this case. We conclude that we should, for the following reasons.
First, even while “it is our ‘general practice’ to accept a concession by the
government that the trial court committed error,” V.C.B. v. United States, 37 A.3d
286, 290 (D.C. 2012) (quoting Ellis v. United States, 941 A.2d 1042, 1048 (D.C.
2008)), we note that that is not precisely what we are doing here. In relying on the
United States’ statements about why it is no longer enforcing Section 22-4504(a-1)
and therefore does not seek to enforce it on direct appeal either, we defer to the
United States’ position as an extension of its prosecutorial discretion. See, e.g.,
District of Columbia v. Economides, 968 A.2d 1032, 1036 (D.C. 2009) (rejecting a
challenge to an exercise of prosecutorial discretion and noting that “the power to
decide when to . . . prosecute[ ] lies at the core of the Executive’s duty to see to the
faithful execution of the laws” (citation modified)). We are not accepting or even
proceeding on the assumption that the statute is unconstitutional, and we express no
view on that question. Thus, contrary to PDS’s argument, in vacating Mr. Carruth’s
conviction we are not setting any “precedent” that would require a published opinion
explaining the basis of our decision.
Second, and relatedly, we understand the United States’ position in this case
as more than a mere change in its argument in this appeal. It has represented in its
12
motion that it is “not prosecuting violations of Section 22-4504(a-1)” as a matter of
policy because of its view that Section 22-4504(a-1) runs afoul of the Second
Amendment. See Petite v. United States, 361 U.S. 529, 530-31 (1960) (vacating and
remanding in light of the United States’ representation that a certain prosecution was
inconsistent with the “general policy” of the Department of Justice). We rely on this
representation with the understanding that it stems from the special ethical obligation
undertaken by a prosecutor: the United States’ “interest . . . in a criminal prosecution
is not that it shall win a case, but that justice shall be done.” In re Howes, 52 A.3d 1,
18 n.21 (D.C. 2012) (citation modified); see generally D.C. R. Pro. Conduct 3.8. We
emphasize, too, that counsel representing the United States (like all attorneys
practicing before this court) owe this tribunal a duty of candor that prohibits them
from knowingly making or failing to correct a “false statement of fact,” D.C. R. Pro.
Conduct 3.3(a), and that failing to uphold this obligation can result in discipline, see
D.C. R. Pro. Conduct 8.4(c). We assign weight to the United States’ representations
regarding its policy of nonenforcement of Section 22-4504(a-1), and its intent to
move to dismiss Mr. Carruth’s rifle-carrying count on remand, with these ethical
considerations in mind.
Third, the Second Amendment issue in this case is “complex” and not one we
could “easily resolve,” especially in light of the rapidly evolving jurisprudence in
this area of the law. Rose v. United States, 629 A.2d 526, 537 (D.C. 1993); see
13
Benson v. United States, 355 A.3d 190, 191 (D.C. 2026) (granting rehearing en banc
to consider, among other things, “[w]hether the District’s ban on firearm magazines
capable of holding ‘more than 10 rounds of ammunition’ violates the Second
Amendment . . . [and] [w]hether the District’s licensing and registration
requirements violate the Second Amendment”). 2 As a result, our restraint in this
instance flows in part from the principles undergirding the doctrine of constitutional
avoidance: we try not to “address constitutional issues . . . when the case may be
resolved on different grounds.” Gaynor v. United States, 16 A.3d 944, 948 (D.C.
2011).
2
The now-vacated panel opinion in Benson also addressed a motion to vacate filed by the United States based on its belief that the District’s large-capacity ammunition feeding device statute is unconstitutional under the Second Amendment. Benson v. United States, 352 A.3d 719, 743 n.20 (D.C. 2026), vacated, 355 A.3d 190 (D.C. 2026); see Mot. to Vacate Conviction, Benson v. United States, 23-CF-0514 (Sept. 9, 2025). That motion was unopposed by the parties to that appeal but was opposed by PDS, acting as amicus. See Mot. to Vacate Conviction at 1, Benson, 23-CF-0514; Resp. to Appellee’s Mot. to Vacate (Intervenor) at 1, Benson, 23-CF-0514 (Sept. 9, 2025); Resp. to Appellee’s Mot. to Vacate (Amicus Curiae), Benson, 23-CF-0514 (Sept. 16, 2025). The Benson panel addressed the merits of the appellant’s Second Amendment challenge to that statute primarily because of its view that “the constitutional infirmity with the capacity ban infect[ed] all of Benson’s convictions, so the constitutional validity of the District’s ban on 11+ magazines has downstream effects for convictions the United States still defends.” 352 A.3d at 743 n.20. It also concluded that the issue was not “moot” because it was “capable of repetition yet evading review” and expressed concern that the United States might “resume prosecuting these offenses if, for instance, there is a change in administration.” Id.
14
Moreover, there is substantial uncertainty about whether we would even reach
the Second Amendment question. As discussed above, Mr. Carruth has raised a
sufficiency challenge to his rifle-carrying conviction, presenting open questions of
statutory interpretation and the application of an affirmative defense. The District of
Columbia argues in its merits brief that Mr. Carruth waived or forfeited any Second
Amendment challenge. And PDS has not urged us to decide the sufficiency issue
notwithstanding the United States’ motion to vacate. While we likewise express no
view on the merits of these arguments, they undermine PDS’s suggestion that this
case is a particularly good vehicle to decide the Second Amendment issue.
Finally, as we have noted, it is significant that no party to this appeal (PDS is
an amicus) opposes the United States’ motion. In this context, guided by the precept
that “courts should not decide more than the occasion demands,” Hensley v. D.C.
Department of Employment Services, 283 A.3d 123, 129 n.8 (D.C. 2022) (citation
modified), the unanimous lack of opposition to the motion to vacate by the parties
to this appeal also contributes to our conclusion that it is “just in the circumstances”
to grant it. D.C. Code § 17-306. 3
3
By the same token, we note that vacating Mr. Carruth’s rifle-carrying conviction would have little practical effect on his sentence. See Hooper, 432 F.2d at 606 (explaining that “sound doctrine supports the vacating of a judgment on a count that has become superfluous,” where the vacatur of the conviction did not
15
To summarize, we grant the United States’ motion to vacate because (1) the
United States has represented that it is no longer prosecuting violations of the statute
due to its belief that the statute is unconstitutional, and we defer to that expression
of prosecutorial discretion; (2) all parties agree that, in light of that representation,
the conviction should be vacated, and to nonetheless reach the merits and expose
Mr. Carruth to the risk of affirmance would be unjust under the circumstances;
(3) the complexity of the constitutional issue as well as the possibility that we would
not reach it even if we denied the United States’ motion counsel in favor of granting
the motion; and (4) where no party opposes the United States’ motion, principles of
judicial restraint support the view that granting the motion is the more prudent path.
affect the defendant’s overall criminal punishment for his convictions in the case). Mr. Carruth was given an eighteen-month prison sentence with three years of supervised release and eighteen months of supervised probation, with all but the probation suspended, for his rifle-carrying conviction; a nine-month prison sentence and eighteen months of supervised probation, with the prison sentence suspended, for his possession of an unregistered firearm conviction; and an identical nine-month prison sentence and eighteen months of supervised probation, with the prison sentence suspended, for his unlawful possession of ammunition conviction. All sentences were concurrent. Mr. Carruth was also fined a total of $200 under the Victims of Violent Crime Compensation Act ($100 for the rifle-carrying offense and $50 each for the other two offenses), and he was further required to register as a gun offender. That is, at the time he was sentenced, Mr. Carruth was obligated to serve a total of eighteen months of supervised probation for all three of his offenses combined, a time period which has long since elapsed. While Mr. Carruth’s riflecarrying conviction is not “superfluous,” it is nevertheless our view that the “public interest” does not support “retain[ing] the conviction,” in part because vacating it would not meaningfully affect Mr. Carruth’s overall sentencing scheme. Hooper, 432 F.2d at 606.
16
Consistent with our longstanding practice with respect to unopposed motions to
vacate a conviction on appeal, we conclude that these factors, taken together, make
it “just in the circumstances,” D.C. Code § 17-306, to grant the United States’ motion
to vacate Mr. Carruth’s rifle-carrying conviction.
III. The Sixth Amendment Challenge
Because we vacate Mr. Carruth’s conviction for violating D.C. Code
§ 22-4504(a-1), we address the merits only of Mr. Carruth’s Sixth Amendment
argument, which implicates both of his other convictions. First, applying the binding
Supreme Court jurisprudence in this area of the law, including the recently decided
Villarreal v. Texas, 607 U.S. 465 (2026), we conclude that the trial court did not
violate Mr. Carruth’s Sixth Amendment rights when it ordered him not to discuss
“the substance of his testimony” with his lawyer during a one-hour lunch break.
Second, we briefly address the effect of Villarreal on our precedents in this area of
the law.
A. Standard of Review
“We review [a] constitutional law question de novo,” Solomon v. United
States, 120 A.3d 618, 620 (D.C. 2015) (citation modified), and the parties agree that
17
de novo review applies to Mr. Carruth’s Sixth Amendment claim, so we apply that
standard of review.
B. Discussion
1. Whether the trial court’s order violated Mr. Carruth’s Sixth
Amendment right to the assistance of counsel
“The Sixth Amendment guarantees as ‘fundamental’ a criminal defendant’s
right to consult with his counsel.” Villarreal, 607 U.S. at 470. But when a defendant
“becomes a witness, . . . a competing duty arises: the duty to advance ‘the truthseeking function of the trial.’” Id. at 472 (quoting Perry v. Leeke, 488 U.S. 272, 282
(1989)). Trial judges are empowered with an array of procedural tools to safeguard
this truth-seeking function, including “[s]equestering a witness over a recess called
before testimony is completed.” Geders v. United States, 425 U.S. 80, 87 (1976).
Thus, when a criminal defendant testifies, a trial court’s authority to protect the truthseeking function can run headlong into the defendant’s Sixth Amendment rights. See
Villarreal, 607 U.S. at 470-71.
Prior to Villarreal, the Supreme Court had twice addressed the extent to which
a defendant may be prohibited from consulting with their attorney while testifying:
first in Geders, and then in Perry, thirteen years later. In Geders, the Court held that
a trial court’s order prohibiting a testifying defendant from speaking to his lawyer
18
“about anything” during an overnight recess in the middle of the testimony violated
the Sixth Amendment. 425 U.S. at 91. In Perry, by contrast, the Court held that an
order prohibiting a testifying defendant from speaking to his lawyer during a fifteenminute recess in the middle of the testimony did not violate the Sixth Amendment.
488 U.S. at 283-84.
Villarreal addressed the constitutionality of a trial court order that “prohibited
Villarreal’s lawyers from ‘managing’ his ‘ongoing testimony’” during an overnight
recess while Mr. Villarreal was still on the stand. 607 U.S. at 477 (emphasis omitted).
Harmonizing the reasoning and the outcomes in its prior cases, the Court explained
that “[t]he difference between Perry and Geders is not the quantity of
communication restrained but its constitutional quality.” Id. at 476 (quoting United
States v. Padilla, 203 F.3d 156, 160 (2d Cir. 2000)). Two “content-based premises”
underlie both Perry and Geders: (1) “[a] midtestimony defendant does not have a
protected Sixth Amendment right to discuss his ongoing testimony with his lawyer”
and (2) “a short break in a defendant’s appearance on the witness stand is unlikely
to feature” constitutionally protected topics such as “the availability of other
witnesses, trial tactics, or even the possibility of negotiating a plea bargain.” Id. at
474 (quoting Perry, 488 U.S. at 284, and explaining that “the same content-based
premises undergird Geders,” albeit “in less prominent form”).
19
Building on these principles, the Court held in Villarreal that “for the duration
of the defendant’s time on the stand, consultation about the testimony itself—rather
than incidental discussion of testimony in service of protected topics—sheds its
constitutional protection.” Id. at 475. And because the trial judge’s order forbade
Mr. Villarreal’s attorney only from “managing” Mr. Villarreal’s ongoing
testimony—that is, seeking to “shape” its future course—that order “did enough to
tailor the ‘quality’ of forbidden consultation . . . to the rule [drawn] from Geders and
Perry” such that it “f[e]ll[ ] on the constitutional side of [the] line.” Id. at 477-78.
The Court emphasized, however, that “many topics a testifying defendant and his
lawyer might discuss during a midtestimony overnight recess remain protected,”
including “advice about trial strategy”; “advice on whether and why he should
consider a guilty plea[,] even if the ‘why’ includes the impact of his ongoing
testimony on the trial’s prospects”; and any other attorney-client collaboration
involving only “incidental discussion of testimony.” Id.
With Villarreal’s synthesis of Geders and Perry in hand, we now turn to the
no-conferral order issued in this case. Before the trial court declared a lunch recess,
counsel for the United States asked the court “to instruct the witness not to discuss
his testimony, as he’s still testifying, with his counsel.” The trial court then addressed
Mr. Carruth: “So now that you’re on the stand, Mr. Carruth, you should not be
speaking to your lawyer about the substance of your testimony.” Mr. Carruth’s
20
counsel objected, emphasizing that, in his view, Mr. Carruth had “an absolute right
to discuss what he has said on the stand, what it means,” including “what has
happened, why it’s happened, [and] what the theory of the case is.” In response, the
trial court explained that Mr. Carruth is “in the middle of testifying, so he can’t stop
and say I need to talk to my lawyer about the substance of my testimony in the middle
of his testimony[.]” Mr. Carruth’s counsel insisted that his client had “every right to
discuss the case and what went on,” but the trial court repeated its admonition to Mr.
Carruth: “don’t discuss your testimony with anyone, please.”
The trial court’s order in this case did not violate Mr. Carruth’s Sixth
Amendment right to the assistance of counsel because it prohibited only the “subset
of consultation” that the Sixth Amendment does not protect: the “discussion of
testimony for its own sake.” Villarreal, 607 U.S. at 475. Mr. Carruth asserts that the
court’s order did not “clearly define the limitations of the conversations” and lacked
“tailoring qualifications” such that it “encompassed ‘protected topics,’” but that is
not our reading of the court’s oral order in light of the entire context of the
discussion. First, the court’s repeated references to the “substance” of Mr. Carruth’s
testimony convince us that its overriding concern was preventing “real-time
feedback aimed at chameleonic adjustments in the defendant’s testimony,” which is
what Villarreal means by “the discussion of testimony for its own sake.” Villarreal,
607 U.S. at 476; see also id. at 478 n.5 (explaining that an attorney’s advice that
21
“seeks to shape future testimony in light of past testimony” is unprotected by the
Sixth Amendment, even if that advice is prefaced with an explanation “that a
defendant’s ‘chances of acquittal will improve’ if he adjusts his testimony”). Second,
we are mindful that the lunch break in Mr. Carruth’s case occurred in the middle of
his cross-examination, and that “it is essential . . . to the proper functioning of the
adversary system that when a defendant takes the stand, the government be permitted
proper and effective cross-examination in an attempt to elicit the truth.” United
States v. Havens, 446 U.S. 620, 626-27 (1980). It appears clear to us from the record
that the trial court’s prohibition on consultation regarding the “substance of [Mr.
Carruth’s] testimony” sought to ensure that Mr. Carruth, as a testifying witness,
would not have “an opportunity to regroup and regain a poise and sense of strategy
that the unaided witness would not possess,” which could undermine this truthseeking goal. Perry, 488 U.S. at 282.
Mr. Carruth argues that his counsel’s statements show that he wanted to
discuss “matters that may or may not involve [his] exact testimony[,] but other issues
surrounding it,” and that the trial court’s order prohibited him from doing so. With
the benefit of Villarreal, he makes a similar argument in his supplemental briefing,
urging that “the trial court’s order encompassed trial strategy and those other
permitted topics that the Supreme Court has now held are to be allowed.”
22
To be sure, Mr. Carruth’s trial counsel might have wanted to discuss caserelated matters beyond the substance of Mr. Carruth’s ongoing testimony,
considering particularly that he argued that Mr. Carruth had “every right to discuss
the case” with him. But Mr. Carruth’s counsel also asserted that Mr. Carruth
possessed an “absolute right” to discuss his testimony at any time, which mirrors the
“hardline” position that the Supreme Court firmly rejected in Villarreal. 607 U.S. at
474-75 (explaining that Mr. Villarreal sought recognition that “the conferral right is
absolute and unqualified” during an overnight recess). In context, then, we read the
trial court’s closing instruction—“Don’t discuss your testimony with anyone”—as a
rejection of this maximalist view rather than a sweeping ban on any mention of the
ongoing testimony at all.
Moreover, the trial court did not prohibit Mr. Carruth from discussing “the
case” entirely; it prohibited only consultation about “the substance of [his]
testimony” in the middle of his cross-examination. This proscription dovetails with
one of the “content-based” premises that Villarreal extracted from Perry: that “a
short break in a defendant’s appearance on the witness stand is unlikely to feature”
discussion of constitutionally protected topics like “the availability of other
witnesses, trial tactics, or even the possibility of negotiating a plea bargain.”
Villarreal, 607 U.S. at 474 (citing Perry, 488 U.S. at 284). As our review of the
record in this case makes clear, the “key observation” Perry made about the fifteen23
minute recess in that case is true of the hourlong lunch break in Mr. Carruth’s case
as well, and the trial court’s order reflects that common-sense understanding. Id. at
472.
We do not suggest that a no-conferral order issued during a brief daytime
recess is necessarily immune from constitutional scrutiny because of the “practical”
reality that such a recess is unlikely to involve discussion of constitutionally
protected topics. Id. To do so would risk drawing the same kind of “temporal” line
that the Court expressly rejected in Villarreal. Id. at 473. Instead, consistent with
Villarreal’s explication of the law, we hold only that under these circumstances, the
trial court’s order did no more than prohibit “discussion of testimony as such, lest
that discussion shape future testimony ‘in light of the testimony already given.’” Id.
at 478 (citation modified). Accordingly, the trial court’s order did not violate Mr.
Carruth’s Sixth Amendment right to the assistance of counsel.
2. The effect of Villarreal on our precedents
Thus far, our discussion has focused on Villarreal and other Supreme Court
cases because those cases are “clearly controlling doctrine” that we are obligated to
follow. Picon v. United States, 343 A.3d 57, 68 (D.C. 2025) (quoting TeoumeLessane v. United States, 931 A.2d 478, 494 (D.C. 2007)). This is not, however, our
first case applying the Sixth Amendment in this area. We have done so on three prior
24
occasions: (1) as an en banc court in Jackson v. United States, 420 A.2d 1202 (D.C.
1979) (en banc), which followed Geders but predated Perry; (2) some thirty years
later in Martin v. United States, 991 A.2d 791 (D.C. 2010); and (3) most recently in
Petty v. United States, 317 A.3d 351 (D.C. 2024), a panel disposition that produced
no majority opinion.
Jackson held that an order prohibiting a testifying defendant from
“discussi[ng] [his] testimony” with counsel during a lunch break violated the Sixth
Amendment because the defendant “had the right to discuss the entire case,
including his own testimony, with his attorney.” 420 A.2d at 1205. Martin
recognized that the portion of Jackson holding “that an order barring the defendant
from conferring with his lawyer violates the Sixth Amendment regardless of the
brevity of the order’s duration” was no longer valid because it “ha[d] been
superseded by Perry.” 991 A.2d at 794 n.9. Nevertheless, Martin reaffirmed
Jackson’s holding that “the defendant ‘had the right to discuss the entire case,
including his own testimony, with his attorney’” as applied to “overnight recesses.”
Id. at 794 (emphasis added). Martin then held that a prohibition on the “discussion
of appellant’s testimony” during a weekend recess while the defendant was on the
stand violated the Sixth Amendment. Id. Finally, Petty addressed an order
prohibiting the defendant from discussing his testimony during a nineteen-and-ahalf hour overnight recess. See 317 A.3d at 352 (Easterly, J. concurring in the
25
judgment). Each of the three opinions issued by the panel members in that case
agreed that this order violated the Sixth Amendment, see id. at 352, 363-64, 368, but
the panel fractured over whether, and why, this violation required vacatur of Mr.
Petty’s convictions, see id. at 352, 365-66, 368.
Because we decided Jackson, Martin, and Petty prior to Villarreal’s
instruction that the constitutionality of a conferral ban depends on its “content”
rather than its duration or timing (during the day as opposed to overnight or over a
weekend), 607 U.S. at 474, the opinions in those cases understandably did not focus
on articulating the substantive scope of the challenged conferral orders. This does
not mean, as the United States suggests, that the cases (especially Jackson and
Martin) have necessarily been “overrule[d]” by Villarreal in their entirety. We
decline to take the “significant” step of saying as much today, Picon, 343 A.3d at
68, because doing so is not required to answer the question presented in this case,
where the no-conferral order was limited in substantive scope and imposed during a
brief daytime recess (as opposed to a lengthier overnight one). Cf. Harris v. United
States, 594 A.2d 546, 548 & n.3 (D.C. 1991) (noting the potential conflict between
Perry and Jackson but declining to “decide whether the Supreme Court’s decision
in Perry . . . overrules or limits our decision in Jackson”).
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In addition, we note that Villarreal itself distinguished “conferral orders
banning any and all discussion of the defendant’s testimony, even if incidental to
protected topics,” 607 U.S. at 479, from a “midtestimony conferral order prohibiting
discussion of testimony as such, lest that discussion shape future testimony in light
of the testimony already given,” id. at 478 (citation modified). It is not clear to us
whether the court in Martin, or the various opinions in Petty, viewed the no-conferral
orders at issue in those cases as prohibiting the discussion of a defendant’s testimony
even when such discussion was “incidental to protected topics,” in contrast to the
more focused (and constitutional) restrictions at issue in Villarreal and in this case.
Id.
Nevertheless, we reiterate our point in Martin that Jackson’s Sixth
Amendment holding—that an order prohibiting a defendant from discussing his
testimony with his lawyer during a lunch break violates the Sixth Amendment—was
“superseded by Perry.” 991 A.2d at 794 n.9. Jackson proceeded on the assumption
that the defendant “had the right to discuss the entire case, including his own
testimony, with his attorney,” full stop. 420 A.2d at 1205. But Perry held, and
Villarreal reaffirms, that “a midtestimony defendant does not have a protected Sixth
Amendment right to discuss his ongoing testimony with his lawyer,” Villarreal, 607
U.S. at 474 (citing Perry, 488 U.S. at 284)—in other words, that a defendant does
not have an unrestricted right to “discuss . . . his own testimony [ ] with his
27
attorney.” Jackson, 420 A.2d at 1205. Consistent with Martin, we do not consider
ourselves bound by this portion of Jackson, because it has been “overruled by”
subsequent Supreme Court precedent. Teoume-Lessane, 931 A.2d at 495. We leave
for another day any further implications of Villarreal.
IV. Conclusion
For the foregoing reasons, we affirm Mr. Carruth’s convictions for possessing
an unregistered firearm under D.C. Code § 7-2502.01(a) and possessing ammunition
without a valid firearm registration certificate under D.C. Code § 7-2506.01(a)(3).
We vacate Mr. Carruth’s conviction for carrying a rifle in the District under D.C.
Code § 22-4504(a-1). We remand for further proceedings consistent with this
opinion.
So ordered.