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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 24-CF-1090
MATTHEW ISIAH WALKER, APPELLANT,
V.
UNITED STATES, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(2019-CF1-013655)
(Marisa J. Demeo, Judge)
(Submitted April 15, 2026 Decided August 27, 2026)
Sean R. Day was on the brief for appellant.
Jeanine Ferris Pirro, United States Attorney, and Chrisellen R. Kolb, Daniel Seidel, and R. Alan Darby, Assistant United States Attorneys, were on the brief for appellee.
Before BECKWITH and MCLEESE, Associate Judges, and RUIZ, Senior Judge.
Opinion for the court by Associate Judge MCLEESE.
Opinion by Associate Judge BECKWITH, concurring, at page 15.
Opinion by Senior Judge RUIZ, concurring in part and dissenting in part, at
page 17.
2
MCLEESE, Associate Judge: Appellant Matthew Isiah Walker appeals from
his convictions of first-degree murder while armed and related weapons and assault
offenses. We affirm, except that we vacate one of Mr. Walker’s weapons convictions
based on a concession from the United States.
I. Factual and Procedural Background
The evidence at trial included the following. Early in the morning on the date
of the murder, surveillance videos captured a man entering Trojan Labor, a
temporary employment agency. The man was armed with a handgun and was
wearing a black mask, a glove, and a distinctive red, white, and black tracksuit. The
man shot two people inside the agency, killing one and wounding the other. The man
then fled the building, going westbound on Hamlin Street.
Surveillance footage showed the shooter traveling westbound along Hamlin
Street and eventually turning northbound into an alley. At the time of the murder,
Mr. Walker lived northwest of Trojan Labor and was known to “hang out” in the
surrounding area. Mr. Walker’s name did not appear on Trojan Labor’s employment
records, but Mr. Walker had worked at an unidentified temp agency the year before
the murder.
3
Additional surveillance footage recorded beginning at 5:50 a.m. on the date
of the shooting—shortly after the shooting—showed a man discarding items in a
recycling bin in the front yard of 1550 Hamlin Street, west of Trojan Labor. From
this recycling bin, police recovered a face mask, a pair of pants, and a jacket with
distinctive markings that matched the outfit worn by the shooter. In the pocket of the
jacket, there was a piece of paper with Mr. Walker’s phone number and the name
“Max” written on it.
Three days after the murder, in response to an anonymous call, police officers
recovered a black glove and a pistol with an extended magazine at 1416 Hamlin
Street. At trial, a firearms expert testified that there was “extreme and strong
support” for the conclusion that the recovered pistol fired the nine-millimeter
cartridge casings that police officers had recovered at the scene of the murder. The
expert acknowledged, however, that his conclusion was “not based on a statistically
derived or verified measurement”; that there is “no generally accepted statistical way
to measure or convey the weight of the evidence” about “firearms and toolmarks
forensics”; and that he could not “state that two toolmarks originated from the same
source to the exclusion of all other sources.” (We note that no objection was made
at trial to the admission of the firearms expert’s testimony, and the issue has not been
raised on appeal; we therefore express no view on that issue.)
4
DNA analysis of the recovered items revealed biological profiles consistent
with two individuals. The DNA extracted from the jacket, pants, mask, pistol, and
glove was consistent with Mr. Walker’s profile. The DNA on the jacket was 9.8
quadrillion times more likely to be observed if it originated from Mr. Walker and
one unknown individual than if it originated from two unknown, unrelated
individuals. The DNA on the pants was 890 septillion times more likely to be
observed if it originated from Mr. Walker and one unknown individual than if it
originated from two unknown, unrelated individuals. The DNA on the mask was 3.9
sextillion times more likely to be observed if it originated from Mr. Walker and one
unknown individual than if it originated from two unknown, unrelated individuals.
The DNA on the pistol was 1.2 octillion times more likely to be observed if it
originated from Mr. Walker and one unknown individual than if it originated from
two unknown, unrelated individuals. The DNA on the glove was 56 times more
likely to be observed if it originated from Mr. Walker and one unknown individual
than if it originated from two unknown, unrelated individuals.
Following a bench trial, the trial court found Mr. Walker guilty of first-degree
murder while armed and related offenses. In finding Mr. Walker guilty beyond a
reasonable doubt, the trial court relied on the following evidence, considered
collectively: Trojan Labor was located in the neighborhood where Mr. Walker
worked, lived, and hung out; the shooter was a thin African-American male; the
5
shooter wore a distinctive tracksuit and mask on which DNA strongly tied to Mr.
Walker was found; the piece of paper found in the pants had Mr. Walker’s phone
number on it; the pistol recovered from the shooter’s flight path within three days of
the shooting appeared to physically match the gun used in the shooting; the shooter
fled in the direction of Mr. Walker’s residence; and DNA on the pistol was strongly
tied to Mr. Walker. The trial court indicated that its verdict did not depend on the
firearms expert’s testimony linking the recovered pistol to the recovered casings.
II. Analysis
A. Sufficiency of Evidence
Mr. Walker argues that there was insufficient evidence to sustain his
convictions for first-degree murder. We disagree.
In reviewing the trial court’s verdict in a bench trial, “we . . . are deferential
to the prerogatives and advantages of the trial judge in assessing witness credibility,
drawing reasonable inferences, and weighing the evidence. We will not disturb the
trial judge’s factual findings unless we can conclude they were plainly wrong or
without evidence to support them.” Augustin v. United States, 240 A.3d 816, 823-24
(D.C. 2020) (citation modified). “An appellant making a claim of evidentiary
insufficiency bears the heavy burden of showing that the prosecution offered no
6
evidence upon which a reasonable mind could find guilt beyond a reasonable doubt.”
Neal v. United States, 340 A.3d 12, 22 (D.C. 2025) (citation modified).
1. Identity
Mr. Walker argues that the evidence was insufficient to establish his identity
as the shooter because the surveillance footage was of limited identifying value, the
DNA evidence consisted of mixed-source profiles, and the evidence was equally
consistent with his having been set up by another person. We hold that the evidence
was sufficient to permit the trial court to find beyond a reasonable doubt that Mr.
Walker was the shooter.
The “identity of the defendant as the person who committed the charged crime
is an essential element that the government must always prove beyond a reasonable
doubt.” Brooks v. United States, 717 A.2d 323, 327 (D.C. 1998). Identity need not
be established through direct evidence, however. Rather, “identification may be
inferred from all the facts and circumstances that are in evidence,” “so long as the
evidence is sufficient to permit the inference that the person on trial was the person
who committed the crime.” Id. (citation modified). We do not distinguish between
direct and circumstantial evidence in reviewing the sufficiency of the evidence.
Bernard v. United States, 575 A.2d 1191, 1193 (D.C. 1990).
7
In this case, there was ample evidence to support the trial court’s finding that
Mr. Walker was the shooter. The United States presented surveillance evidence,
forensic evidence, and physical evidence connecting Mr. Walker to the offense. As
the trial court observed, Mr. Walker lived and hung out near Trojan Labor; DNA
evidence linked Mr. Walker to the clothing and mask recovered along the shooter’s
flight path and a pistol that matched casings found at the scene of the shooting; and
investigators recovered from the jacket pocket a piece of paper bearing Mr. Walker’s
telephone number. Viewed collectively, this evidence provided an adequate basis for
the trial court to conclude that Mr. Walker committed the murder. All in all, “the
record [was] replete with evidence sufficient to allow the [trial court] to find that the
defendant who appeared at trial was the person who committed the acts charged.”
Brooks, 717 A.2d at 327.
Mr. Walker argues that the evidence was so “suspiciously convenient” that it
was just as likely that Mr. Walker was set up. Mr. Walker points to the mixed-source
DNA profiles, the “convenient[]” recovery of the firearm and glove in a location
where they could readily be found, and the note bearing his telephone number and
the name “Max.” The possibility of an alternative explanation, however, does not
render the evidence insufficient. “[T]he government was not required to negate every
possible inference of innocence for the trial court to find guilt beyond a reasonable
doubt.” Mills v. District of Columbia, 259 A.3d 750, 761 (D.C. 2021) (citation
8
modified). The question is whether the evidence was sufficient to permit the
inference the fact-finder drew, not whether other inferences were conceivable.
We conclude that a reasonable mind could find guilt beyond a reasonable
doubt. The mixed-source nature of the DNA evidence, the circumstances
surrounding the recovery of the firearm, and the note recovered from the clothing
did not require the court to reject the United States’ theory in favor of Mr. Walker’s
alternative explanation. The trial court’s verdict of guilt did not “cross the bounds of
permissible inference and enter the forbidden territory of conjecture and
speculation.” Rivas v. United States, 783 A.2d 125, 134 (D.C. 2001) (en banc)
(citation modified).
2. Motive
Mr. Walker emphasizes the absence of evidence of motive or even a prior
connection between himself and the victims. We hold that the absence of such
evidence did not render the evidence insufficient.
Motive is not an element of any of the charged offenses. See, e.g., Johnson v.
United States, 596 A.2d 980, 985 (D.C. 1991) (motive is not element of murder);
Workman v. United States, 15 A.3d 264, 269 (D.C. 2011) (in murder case, trial court
correctly instructed jury that prosecution was not required to prove motive). It is
9
true, however, that the “absence of a motive on the part of the defendant . . . may
always be considered by the [fact-finder] on the question of whether [the defendant]
did commit [the crime].” Lazo v. United States, 930 A.2d 183, 185 (D.C. 2007)
(citation modified); see also Martin v. United States, 606 A.2d 120, 128 (D.C. 1991)
(“The absence of motive tends to support the presumption of innocence; it is a fact
to be reckoned with on the side of innocence.”) (citation modified). Nevertheless,
the absence of evidence of motive does not compel acquittal if the evidence as a
whole supports a finding of guilt beyond a reasonable doubt. See, e.g., Sterling v.
United States, 691 A.2d 126, 131-32 (D.C. 1997) (holding that evidence was
sufficient despite absence of motive evidence).
In the present case, the trial court acknowledged “that the Government did not
establish motive.” Yet extensive other evidence tied Mr. Walker to the crime,
including surveillance footage, evidence tracing the shooter’s flight path, DNA on
clothing and other items found along that route, and DNA on a gun that likely shot
the casings recovered at the scene of the shooting. The absence of motive evidence
is but one factor that weighed against strong other evidence identifying Mr. Walker
as the shooter. The trial court considered the lack of motive evidence and found the
remaining evidence sufficient to convict Mr. Walker. On this record, we cannot say
that the trial court’s conclusion was unsupported by the evidence.
10
B. Possession of a Large-Capacity Ammunition Feeding Device
The United States has moved to vacate Mr. Walker’s conviction for
possession of a large-capacity ammunition feeding device. Mr. Walker joins in that
motion and the District does not object. We therefore vacate Mr. Walker’s
conviction for possession of a large-capacity ammunition feeding device. Cf.
generally, e.g., Carruth v. United States, No. 23-CF-0387, 2026 WL 2053669, at *5
(D.C. July 16, 2026) (“[c]onsistent with our longstanding practice with respect to
unopposed motions to vacate a conviction on appeal,” court exercised discretion to
grant United States’ motion to dismiss conviction for unlawful carrying of rifle).
Because Mr. Walker’s sentence on that count runs concurrent with his sentences on
other counts, there is no need for resentencing. See, e.g., Holman v. United States,
335 A.3d 880, 884 (D.C. 2025) (“Because the trial court imposed concurrent
sentences, there is no need for resentencing.”).
In choosing in this case to follow our longstanding practice of granting
unopposed motions to vacate, we also consider that (1) because Mr. Walker received
a concurrent sentence on the count at issue, there is little practically at stake for either
of the parties; (2) the underlying legal issue of the constitutionality of the statute
banning the possession of large-capacity ammunition feeding devices is before this
court en banc, see Benson v. United States, 355 A.3d 190, 191 (D.C. 2026) (mem.)
11
(granting petition for rehearing en banc), so granting the motion to vacate will not
delay or prevent the resolution of that issue; and (3) because “courts should not
decide more than the occasion demands,” “principles of judicial restraint support the
view that granting the motion is the more prudent path,” Carruth, 2026 WL
2053669, at *5 (citation modified).
We disagree with the dissenting opinion on a number of points. First, the
dissenting opinion describes our practice of ordinarily accepting unopposed
government concessions as a “purported” consistent practice. Post at 20. Contrary
to the dissenting opinion’s description, the court in Carruth correctly described the
practice as a longstanding “general practice.” Carruth, 2026 WL 2053669, at *4
(citation modified). We have adhered to that practice in many cases as a routine
matter, without any discussion, much less extensive discussion “carefully weighing
various considerations particular to the case.” Post at 22. E.g., Sanchez v. United
States, 287 A.3d 1241, 1247 (D.C. 2023). Our discussion in Carruth was
understandably more extensive in light of the fact that the United States’ concession
was opposed by an amicus. Carruth, 2026 WL 2053669, at *3.
Second, the dissenting opinion suggests that the United States’ concession in
this case is not “usual,” because the concession involves a constitutional issue rather
than “trial court error or [a] government misstep in investigating or prosecuting the
12
case.” Post at 18. The dissenting opinion does not explain, however, why it is
relevant that the concession in this case involves a constitutional issue. Moreover,
this court has repeatedly vacated convictions based on unopposed concessions on
constitutional issues, without discussion. See, e.g., Sanchez, 287 A.3d at 1247
(accepting United States’ concession that conviction should be vacated on Double
Jeopardy grounds). To the extent that the dissenting opinion emphasizes that the
concession in this case rests on the United States’ position that the statute under
which Mr. Walker was prosecuted is unconstitutional, post at 18, 21, that was true
in Carruth, 2026 WL 2053669, at *1. Finally on this point, the United States’
concession in this case is based on the view of the United States that there was both
“trial court error” and “a government misstep in . . . prosecuting the case,” post at
18, because the United States is conceding that Mr. Walker was impermissibly
prosecuted and convicted based on constitutionally protected activity (an issue as to
which we express no view).
Third, the dissenting opinion states that in Benson, 355 A.3d at 191, this court
en banc is “on the cusp” of deciding the issue that the United States has conceded.
Post at 23. In fact, the en banc court has held Benson in abeyance pending the
Supreme Court’s rulings in two cases involving Second Amendment challenges to
bans on the possession of certain “assault weapons.” See Viramontes v. Cook Cty.,
Ill., No. 24-1437, 2025 WL 1553896 (7th Cir. June 2, 2025) (unpublished order)
13
(rejecting constitutional challenge to ban on possession of certain “assault
weapons”), cert. granted, No. 25-238, 2026 WL 1871322 (U.S. June 30, 2026); Nat’l
Ass’n for Gun Rts. v. Lamont, 153 F.4th 213 (2d Cir. 2025) (upholding denial of
preliminary injunction against statute banning possession of certain “assault
weapons” and “large capacity magazines”), cert. granted sub nom. Grant v. Higgins,
No. 25-566, 2026 WL 1871312 (U.S. June 30, 2026) (granting petition for writ of
certiorari solely as to “the question presented by the petition” in Viramontes). Even
assuming that the Supreme Court’s decisions in those consolidated cases fully
resolve the closely related question of the constitutionality of possession of largecapacity ammunition feeding devices, the cases are not likely to be decided until
next year. Thus, the court in this case is much farther from deciding the issue that
the United States has conceded than the court is in the typical case in which the
United States concedes an issue. In the more typical scenario, the court presumably
could decide the conceded issue right away in the case before it.
Fourth, the dissenting opinion suggests that we are accepting the United
States’ concession in this case by applying a flat policy, “without considering the
circumstances” of the case. Post at 20. To the contrary, we have identified a number
of circumstances that support adherence to our longstanding general practice in this
case. Supra at 10-11.
14
Fifth, the dissenting opinion suggests that one of those reasons—that
accepting the United States’ unopposed concession will not frustrate or delay
decision of the underlying constitutional issue—is a “non sequitur.” Post at 23. We
disagree. That observation explains that one possible objection to accepting the
United States’ unopposed concession is not present in the circumstances of this case.
Finally, the dissenting opinion suggests that setting aside a conviction based
on an unopposed concession by the government, rather than based on a
determination on the merits that the conviction is invalid, is contrary to “the Rule of
Law.” Post at 24. The author of the dissenting opinion has expressed similar views
in a previous dissenting opinion. See Briscoe v. United States, 181 A.3d 651, 668
(D.C. 2018) (Ruiz, J., dissenting in part) (“Parties do not, by agreement or
concession, relieve the court of its responsibility to decide questions of law that
determine the proper disposition of a case.”). Whatever the merits of those views as
an original matter, binding decisions of this court are inconsistent with the idea that
it is contrary to the rule of law to vacate a conviction based on an unopposed
concession without deciding the conceded issue on the merits.
For the foregoing reasons, we affirm the judgment of the Superior Court
except that we vacate Mr. Walker’s conviction of possession of a large-capacity
15
ammunition feeding device and remand the case for entry of a new judgment and
commitment order.
So ordered.
BECKWITH, Associate Judge, concurring: I join the court’s opinion but write
separately to emphasize that in assessing the evidence to include “a pistol that
matched casings found at the scene of the shooting,” ante at 7, and in referring to the
recovered firearm as “the gun used in the shooting,” ante at 5, the court is not
suggesting that the ballistics expert’s testimony was properly admitted to establish
that the casings found at the scene came from the same source as those test-fired
from the recovered firearm. Courts evaluate the sufficiency of the evidence based on
the evidence that was admitted at trial, even if it was admitted in error. Lockhart v.
Nelson, 488 U.S. 33, 41-42 (1988).
In fact, any evidence that purported to establish that the casings at the scene
came from the recovered firearm—as opposed to merely being consistent with the
firearm based on caliber or other class or subclass characteristics—ran afoul of our
decision in Geter v. United States, 306 A.3d 126 (D.C. 2023), which reaffirmed that
“the research does not exist to say that a specific bullet can be matched to a specific
gun based on pattern matching.” Id. at 133 (citing Gardner v. United States, 140
16
A.3d 1172, 1184 (D.C. 2016), and Williams v. United States, 210 A.3d 734, 739-42
(D.C. 2019)). An expert’s testimony that the markings on a projectile came from a
particular firearm is impermissible whether or not the expert claimed 100 percent
certainty to the exclusion of all other firearms in the world—the sort of claim that
our cases preceding Geter had already condemned. “The core problem,” according
to Geter, “is not unfounded assertions of certainty, but rather the absence of data to
support the proposition that ‘every gun produces “unique” toolmarks such that a gun
can be matched to a fired bullet or vice versa.’” 1 Id. at 132-33 (holding that the
expert’s statement that the gun had unique markings that were transferred to the shell
casings upon firing was “effectively the same” as a statement that the markings on
the casings “were unique to one and only one gun” as “both assert a basis for linking
specific shell casings to a specific gun”). This “core problem” afflicts experts’ claims
that the markings on a casing had sufficient agreement to permit the expert to opine
that the casing came from the gun in question. That includes the expert’s testimony
here that there were “corresponding microscopic markings” and “corresponding
1
In the same way, this error was not corrected by the government’s
acknowledgment that statements of source attribution are not based on statistical empirical evidence. The error was to allow the expert to make a statement of source attribution at all.
17
random characteristics” on the test-fired casings and the recovered casings that
provided “extreme and strong support that they originated from the same source.”
That testimony is a claim of source attribution. That is how the prosecutor saw
it when he argued that the ballistics expert “connect[ed] this firearm to this shooting
by comparing the casings found at the scene to this firearm that got recovered along
the flight path.” It is how the trial judge saw it when she said that the “identification”
of Mr. Walker as the shooter in this case was strengthened by the expert’s opinion
that there was “sufficient agreement” in the “random individual characteristics” of
the recovered casings and the test-fired casings to conclude that they originated from
the same source. And it is how the government characterizes it in its brief before us,
stating that “[t]he expert firearm analysis provided strong support that the cartridge
casings recovered from the scene originated from the recovered firearm.”
Mr. Walker has not raised this issue on appeal, and I agree with the court that
we need not tackle it here. I flag the matter because the fact that prosecutors are
eliciting ballistics experts’ claims of source attribution after Geter—and that trial
courts are admitting and crediting those claims, albeit here without objection—
underscores the need for us to be clear in our opinions about what our case law does
and does not allow.
18
RUIZ, Senior Judge, dissenting in part: Although I agree that appellant’s
challenge to the sufficiency of the evidence should be denied and join the opinion
for the court in that respect, I disagree with granting the government’s motion to
vacate the conviction for possession of a large-capacity ammunition feeding device
at this time. Instead, I would defer ruling on the motion until the court decides the
issue of the constitutionality of the underlying statute, which is currently pending en
banc review in Benson v. United States, 355 A.3d 190 (D.C. 2026) (granting
rehearing en banc and vacating division opinion).
The majority grants the government’s motion to vacate essentially because it
is unopposed and because it is our “general practice” to accept such concessions.
Ante at 11. Although it gives other reasons, such as the delay naturally inherent in
my proposal to defer decision on the motion until the court decides Benson, ante at
13-14, as discussed below these are makeweight. It is more important to consider
that the reason the government gives for its motion is not the usual type of confession
of trial court error or government misstep in investigating or prosecuting the case, to
which the court might naturally defer, although not automatically. See, e.g., V.C.B.
v. United States, 37 A.3d 286, 290 (D.C. 2012) (noting “general practice” of
accepting government concession of trial court error, but only after this court
reviewed arguments on the merits before agreeing with government’s concession).
19
Rather, the government asks that the conviction be vacated because it believes
the statute under which appellant was convicted of possessing a high-capacity
feeding device, D.C. Code § 7-2506.01(b), is unconstitutional. That is the very
question currently pending before the en banc court in Benson v. United States.
Leading up to the grant of rehearing en banc, a split division of the court concluded
that the statute was facially unconstitutional over the dissent of the Chief Judge, who
disagreed with both the framework of analysis used to examine a facial challenge to
the constitutionality of a statute as well as the evidence supporting the majority’s
conclusion that the statute is unconstitutional. Benson v. United States, 352 A.3d 719,
739, 744-45 (D.C. 2026) (Blackburne-Rigsby, C.J., dissenting). The issue is also
poised to be decided by the United States Supreme Court in the coming term, in twin
challenges to bans on possession of semi-automatic rifles (such as the AR-15) which
the state statutes at issue define in terms of their ability to accept high-capacity
ammunition feeding devices. See Viramontes v. Cook County, No. 25-238, 2026 WL
1871322 (U.S. June 30, 2026), cert. granted; Grant v. Higgins, No. 25-566, 2026
WL 1871312 (U.S. June 30, 2026), cert. granted sub nom. It thus seems fair to think
the constitutional issue is not free from doubt but also reasonable to expect it will be
judicially resolved before long.
Our authority to vacate a conviction without first adjudicating that there is
error requiring vacatur is based on D.C. Code § 17-306, which provides we may
20
“vacate . . . any order or judgment of a court . . . as is just under the circumstances.”
Carruth v. United States, No. 23-CF-0387, 2026 WL 2053669 at *3 (D.C. July 16,
2026). But as Carruth points out, this means we have discretion to grant or deny a
motion to vacate, depending on the circumstances of the case. Id. Simply to go along
with the government’s so-called “concession” is not the exercise of discretion. Nor
is it an exercise of discretion to just follow the purported “consistent practice” of the
court in cases where motions to vacate are unopposed, without considering the
circumstances in such cases and whether they apply to the case under consideration.
See Johnson v. United States, 398 A.2d 354, 361 (D.C. 1979) (“[T]he core of
‘discretion’ as a jurisprudential concept is the absence of a hard and fast rule that
fixes the results produced under varying sets of facts.”). As we have noted, “we
cannot set aside the conviction on confession of error alone, [for] the public interest
prevents shifting the responsibility for reversal from the appellate court to the
prosecuting official.” Stewart v. United States, 37 A.3d 870, 877 (D.C. 2012)
(quoting Rose v. United States, 629 A.2d 526, 533 (D.C. 1993)). Indeed, that has
been the clearly expressed opinion in decisions binding on this court since 1935,
when the D.C. Circuit, on appeal from what was then the District of Columbia
Supreme Court, reviewed English cases at common law and the divergent practice
among the states, and refused to vacate a conviction based solely on the Attorney
General’s concession of error, and instead examined the record itself, stating:
21
[W]e cannot, as we think, alone on the strength of [the
Attorney General’s] official action acquit ourselves of our
responsibility to examine the whole record before setting
aside a conviction for crime. The question, as we think, is
wholly different from that which would arise in a litigation
between private parties, where no public interest is
involved. In this view, we feel impelled to review the error
alleged.
Parlton v. United States, 75 F.2d 772, 773 (D.C. Cir. 1935). The Supreme Court has
expressed a similar view, noting that “public trust . . . requires [the government] be
quick to confess error. . . But such a confession does not relieve this Court of the
performance of the judicial function.” Young v. United States, 315 U.S. 257, 258
(1942). In Sibron v. New York, the Court emphasized that Young’s admonition that
“the proper administration of the criminal law cannot be left merely to the stipulation
of the parties” is “entitled to special weight where, as in this case, we deal with a
judgment of a State’s highest court interpreting a state statute which is challenged
on constitutional grounds.” 392 U.S. 40, 58 (1968). Sibron points precisely to the
situation in this case. The majority cites no case like this one where the ground for
vacatur proffered by the government is a constitutional question that is pending
before this court and the Supreme Court. Instead, it cites cases, such as Sanchez v.
United States, 287 A.3d 1241, 1247 (D.C. 2023), where the court has acceded to the
garden-variety concession that duplicative convictions merge under the Double
Jeopardy Clause. Ante at 12.
22
The majority puts too much stock on the court’s “general practice” of
accepting unopposed concessions. Ante at 11. Carruth did note a consistent practice
but it did so as an additional factor that weighed in favor of vacatur, and only after
carefully weighing various considerations particular to the case before coming to the
conclusion that it was “just in the circumstances” of the case to grant the motion to
vacate. Carruth, 2026 WL 2053669 at *5. See Hooper v. United States, 432 F.2d
604, 606 (D.C. Cir. 1970) (agreeing to vacatur but going beyond government’s
concession to consider additional factors “in the general interest of the
administration of justice”) (cited in Carruth, 2026 WL 2053669 at *3).
That is not so in this case. First, unlike in Carruth where it seemed dubious
that the court would reach a complex constitutional issue on the merits, id. at 4, the
en banc court is currently seized of the question of the constitutionality of the largecapacity ammunition feeding device prohibition that is at issue in this case. Under
the circumstances there is no cause to act precipitously, on the strength only of the
government’s concession –a concession in the government’s motion to vacate that
was filed four days after its brief urging affirmance of the convictions –when an
authoritative resolution of the constitutional question is already in line to be decided
in the normal course. The constitutionality of a D.C. criminal statute is a matter of
public importance that this court decides as the highest court of the District of
Columbia subject to review by the U.S. Supreme Court. Judicial adjudication of that
23
important question settles the matter in a reasoned opinion with notice and
application to all on an equal basis, and therefore is superior to the vagaries of ad
hoc interpretations by different successive representatives of the executive branch
(as happened in this case). Where this court is on the cusp of deciding the question,
particularly en banc, there is little to be said for favoring the ad hoc approach. The
majority points to the fact that granting the motion to vacate will not delay the en
banc court’s consideration of the underlying issue as a reason to grant the motion.
Ante at 10-11. That is a non sequitur as nothing that this division does with respect
to the motion to vacate in this case—be it grant, deny or defer—will have the
slightest impact on the en banc court’s consideration of Benson. It adds nothing to
whether vacatur is just in the circumstances.
The majority worries that deferring the motion until judicial resolution next
year is too long to wait. Ante at 13. But this also does not carry weight as there is
little if any injustice to appellant from allowing this division to consider the motion
to vacate with the benefit of the court’s resolution of the constitutional question.
Appellant can hardly be disappointed as he did not even raise a constitutional
challenge in his appeal. Rather, he is the incidental beneficiary of the government’s
sudden changed posture in the case. Although the District of Columbia does not
object to vacatur, it has intervened in the case and defends the constitutionality of
the District of Columbia statute that underlies the conviction. And vacatur of the
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conviction will have no practical impact on appellant for the foreseeable future as
the sentence for the large-capacity ammunition feeding device conviction was ten
months to be served concurrently with the sentence of thirty-eight years for murder,
a conviction which we are now affirming. The court’s deferral of the motion to
vacate for several months until the constitutionality of the statute is authoritatively
decided to see whether the weapon possession conviction should be vacated or
remain on his record will make no practical difference to appellant’s term of
incarceration and is hardly a burden in his circumstances.
A conviction that results from a criminal proceeding that was properly
charged, fairly prosecuted and where the defendant was found guilty on the basis of
sufficient evidence, is presumptively just. Moreover, it is imbued with a public
interest that goes beyond the interests of the particular parties. Significant public
and judicial resources have been invested in the process. The public has a right to
expect the criminal process will be respected and given effect unless there is legal
sanction – justice under the circumstances – to do otherwise. This is the Rule of Law.
Vacating a conviction because the parties agree is not like accepting a
settlement between parties to a private dispute that essentially belongs to the litigants
to dispose of as they wish. The court has an obligation to recognize the public interest
in a criminal proceeding and a role to play in protecting it. There is nothing
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inherently just in vacating a conviction that has been properly obtained. If it turns
out the statute is ruled unconstitutional, it will then be just to vacate the conviction.
If it is ruled to be constitutional, the court can consider the motion with the benefit
of that additional information. In such an event, the government may reconsider its
motion.
I do not say that the court must always conduct a searching independent
assessment of the merits before it may grant an unopposed motion to vacate a
conviction. The merger cases cited by the majority, such as Sanchez, are a good
example where it will usually be appropriate to do so; there are likely to be similar
examples. However, in exercising discretion to vacate a conviction if it is “just in
the circumstances,” and after considering the circumstances in this case, I would
defer ruling on the government’s motion until the en banc court decides whether the
prohibition on large-capacity feeding devices is constitutional. There is virtually
nothing to be lost by doing so and more to be gained.