Keerikkattil v. United States

• Court: District of Columbia Court of Appeals
• Decided: April 25, 2024
• Docket: 22-CM-0963
• Status: Published

Opinion

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 22-CM-0963

RANJITH V. KEERIKKATTIL, APPELLANT,

v.

UNITED STATES, APPELLEE.

Appeal from the Superior Court of the District of Columbia (2015-CMD-017652)

(Hon. Robert A. Salerno & James A. Crowell, Trial Judges)

(Argued February 14, 2024 Decided April 25, 2024)

David H. Reiter for appellant.

Anne Y. Park, Assistant United States Attorney, with whom Matthew M. Graves, United States Attorney, Chrisellen R. Kolb, Nicholas P. Coleman, and John G. Giovannelli, Assistant United States Attorneys, were on the brief, for appellee.

Before BLACKBURNE-RIGSBY, Chief Judge, and DEAHL and SHANKER, Associate Judges.

SHANKER, Associate Judge: In 2015, appellant Ranjith V. Keerikkattil was

terminated from Deloitte Consulting for acting inappropriately toward a junior

colleague, S.S. Mr. Keerikkattil then embarked on a months-long campaign of

retribution against S.S., in which he, among other things, repeatedly sent S.S. 2

threatening texts and emails; sent letters and communications to Deloitte and

government agencies claiming that S.S. had engaged in misconduct; and showed up

on the doorstep of S.S.’s parents, who lived across the country. Following a jury

trial in the D.C. Superior Court, Mr. Keerikkattil was convicted of criminal stalking

under D.C. Code § 23-3133.

Mr. Keerikkattil appeals, arguing that the trial court’s failure to instruct the

jury that it needed to find that his communications fell within one of the narrowly

defined categories of unprotected speech as required by our recent decision in

Mashaud v. Boone, 295 A.3d 1139 (D.C. 2023) (en banc), violated his First

Amendment rights. But Mr. Keerikkattil never asked the trial court for such an

instruction, and we hold that any error did not affect his substantial rights and thus

does not warrant reversal. Mr. Keerikkattil also challenges the sufficiency of the

evidence against him, the Superior Court’s jurisdiction, and two aspects of his

sentencing. We affirm Mr. Keerikkattil’s conviction but remand for the trial court

to reconsider its imposition of probation at sentencing. 3

I. Background

A. Factual Background

The government’s evidence at trial supported the following. During the

relevant time period, S.S. lived in the District of Columbia. In early 2015, at the age

of twenty-three, she began working as a business technology analyst—an entry-level

position—at Deloitte. A month after she started working at Deloitte, S.S. met

Mr. Keerikkattil, who worked as a senior consultant within the same information-

management group, a position two levels senior to S.S.

After she expressed interest, Mr. Keerikkattil asked S.S. to collaborate on a

large proposal he was working on. Proposals are essentially sales pitches to win the

federal contracts that make up the “lifeblood” of Deloitte’s federal consulting

practice. S.S. understood that working on the proposal would give her exposure,

help her develop “an important skill set,” and be a “good learning experience.” It

was her first time working on a proposal.

S.S. and Mr. Keerikkattil worked closely on the proposal, spending the better

part of forty hours a week over several months either together in person or

communicating with each other. Their collaboration often included working outside

the firm’s office, including at a common area in S.S.’s apartment building. 4

S.S. testified that Mr. Keerikkattil’s questions and conduct veered at times too

far into the personal. For example, he once asked her if the reason she was wearing

a one-piece swimsuit in a Facebook picture was because she had recently gained

weight. S.S. told Mr. Keerikkattil that his comments were “inappropriate” and “rude

and hurtful.” Mr. Keerikkattil later apologized via text. In his apology, however,

Mr. Keerikkattil told S.S. that she was “cute[,] slim[,] and sexy! Big time.”

Eventually, and repeatedly, S.S. told Mr. Keerikkattil that she wanted to keep their

relationship professional and that he should text her only about work-related topics.

Nevertheless, Mr. Keerikkattil continued to reach out socially, by, for example,

inviting S.S. out to drinks and buying her a bottle of alcohol as a gift.

The day after S.S. rejected Mr. Keerikkattil’s invitation to “grab a drink”

socially, Mr. Keerikkattil emailed S.S. a “Cease & Desist Letter.” The email

apprised S.S. that Mr. Keerikkattil would not be working directly with her anymore

and that she should work with others on the team instead. It asked her to “please

refrain from contacting [him] except for legitimate business needs of Deloitte LLP.”

S.S. cried when she received the email, and she did not understand if there were legal

ramifications stemming from it. She felt she “was being attacked and punished for

not reciprocating [Mr. Keerikkattil’s] advances.” Per the request in the email, S.S.

ceased contacting Mr. Keerikkattil. 5

Mr. Keerikkattil, however, continued contacting S.S. He approached her at a

work event, and he messaged her privately. S.S. reported the situation to Deloitte.

Deloitte terminated Mr. Keerikkattil for lying during its investigation into S.S.’s

report. What followed Mr. Keerikkattil’s termination was a campaign of retribution

against S.S. over the summer and fall of 2015.

After his termination, Mr. Keerikkattil emailed Vikram Rajan—another

Deloitte employee who Mr. Keerikkattil had learned was dating S.S.—requesting

that he “preserve” “[a]ny and all communications between [Mr. Rajan] and

[S.S.] . . . , including but not limited to any sexually explicit text messages and

[instant messages] exchanged such as ‘I want to eat you [S.S.].’” The email copied

S.S. It explained that Mr. Keerikkattil had “no interest in [S.S.], but [he was]

interested in the inappropriate and non-professional relationship between [S.S. and

Mr. Rajan] as evidence of [S.S.’s] character and conduct, as well as for violation of

Deloitte policies.” The email concluded: “So go ahead and continue to bring [S.S.]

over to your place, have sex with her or whatever. I’ll make sure that all the

shenanigans are captured. The more evidence against [S.S.], the stronger that

charges against her become[ ].” Mr. Keerikkattil sent a similar “litigation-hold”

email to S.S. 6

On July 6, 2015, Mr. Keerikkattil emailed S.S. again. The email copied other,

more senior, Deloitte employees and alleged that S.S. had violated Deloitte’s “Code

of Ethics & Professional Conduct” because of her “inappropriate close relationship”

with Mr. Rajan, that she had committed “blatant fraud” with respect to her

timekeeping, and that there was “probable cause to believe [she] had violated 20

U.S.C. § 1097(a), a federal felony[,] by not discussing drug related misconduct while

applying for federal student aid.” Mr. Keerikkattil stated that S.S. could face “up to

5 years in prison and [a] fine up to $20,000.” Mr. Keerikkattil closed the email by

“assur[ing] [S.S.] that irrespective of how long it takes or whatever it costs we will

get to the bottom of [her] lies and misrepresentations.”

S.S. denied the allegations in Mr. Keerikkattil’s email. She contested the

allegation about an inappropriate relationship with Mr. Rajan. Although they were

dating, she testified that the relationship did not violate any Deloitte rules and that

they had reported the relationship to human resources. She further denied having

“committed blatant fraud,” as the email alleged, regarding her timekeeping. As for

the drug use, S.S. testified that she had disclosed prior drug use when she applied

for a security clearance, and she had not engaged in any drug-related misconduct.

On July 28, Mr. Keerikkattil emailed S.S. to notify her of an impending

lawsuit against her. The email explained that if she did not offer a convenient 7

location to be served, he would be forced to have a sheriff serve her at Deloitte,

“which might be embarrassing for you.” It asked her to “[p]lease take note of the

intentional personal injury tort claims against you. You could end up paying

damages for the rest of your life . . . .” The email continued, “[i]f you are willing to

be truthful and recognize the damages that you’ve caused, I might be able to help

you out. After all[,] my intention here is not to ruin your future or ruin you

financially.” S.S.’s lawyer, who also represented Deloitte, responded and

“instructed [Mr. Keerikkattil] to direct any communications intended for [S.S.],

regardless of subject matter or context, exclusively to [the lawyer] or [their]

designee(s).”

Shortly after the email exchange, S.S. saw Mr. Keerikkattil outside a café they

used to work in together near the Deloitte office. The two made eye contact, and

S.S. returned to the office and notified security.

In September 2015, Mr. Keerikkattil sent a letter to the Internal Revenue

Service (IRS) about S.S. regarding her work on a Deloitte project involving the

agency. The letter alleged that S.S. had been “fired from the Bureau of Engraving

and Printing . . . allegedly due to illegal drug use history.” The letter requested that

the agency “launch an inquiry into how [S.S.] was able to obtain a position with [the] 8

IRS despite being fired from [the Bureau of Engraving and Printing] and whether

any IRS[ ] policies were violated with regard[ ] to her hiring.”

S.S. denied these allegations as well. She had previously completed a

security-clearance application for a project involving the Bureau of Engraving and

Printing, but she withdrew the application after learning that it might be denied due

to her prior drug use. She had truthfully answered questions relating to that drug use

on the application. She further testified that she had never been denied a clearance

or been fired.

On October 1, Mr. Keerikkattil texted S.S. again. Mr. Keerikkattil wrote:

“You’d have forgotten me but how can I for what you’ve done to me . . . .” He

blamed her for making his “life hell” and not “car[ing] about others.” Finally, he

told S.S.: “I would have forgiven you if you had expressed regret for what all I had

to suffer because of you. But instead you wanna fight. Then let’s do exactly that.”

On October 9, Mr. Keerikkattil followed up with yet more texts. He let S.S.

know that he was “going to return what [she had done] to [him] with interest.”

Among other things, he told her: “[s]it back and enjoy as I fuck up your life.” He

added specifically: “[n]ow guess who all know about the illegal drug use history and

your expulsion from [the Bureau of Engraving and Printing].” 9

This series of texts “paralyz[ed]” S.S. She testified that she cried over them

and that they “haunt[ed]” her. She contacted the police.

On October 24, Mr. Keerikkattil texted S.S. again. He had travelled to S.S.’s

childhood home in Oregon and knocked on the front door. He had handed S.S.’s

father his business card before leaving. S.S.’s father immediately contacted his

daughter about the incident and notified the police. Mr. Keerikkattil texted S.S. that

it “[w]as nice meeting [her] dad today,” along with other related messages. S.S.

reported the incident to Deloitte’s human resources and legal teams.

After Mr. Keerikkattil’s trip to Oregon, S.S. began leaving the office only

during the daytime and taking more circuitous routes home. Her friends started

escorting her places because she did not feel “safe to go out on [her] own.” S.S. also

obtained a civil protection order against Mr. Keerikkattil.

After considering this evidence, the jury found Mr. Keerikkattil guilty of

criminal stalking under D.C. Code § 22-3133. The Superior Court sentenced

Mr. Keerikkattil to twelve months of incarceration and, over Mr. Keerikkattil’s

objection, suspended one of those months in exchange for five years of supervised

probation. 10

B. Legal Background

A guilty verdict under D.C.’s criminal stalking statute requires the jury to find,

in relevant part, that the defendant “purposefully engage[d] in a course of conduct

directed at a specific individual” that the defendant “should have known would cause

a reasonable person in the individual’s circumstances to: (A) Fear for his or her

safety or the safety of another person; (B) Feel seriously alarmed, disturbed, or

frightened; or (C) Suffer emotional distress.” D.C. Code § 22-3133(a). Although a

finding that the defendant should have known the victim would suffer any of these

three categories suffices, we have described emotional distress as “the broadest of

the three categories” and have referred to all of the categories collectively as

emotional distress. Mashaud v. Boone, 295 A.3d 1139, 1148 (D.C. 2023) (en banc).

The statute defines “[e]motional distress” as “significant mental suffering or distress

that may, but does not necessarily, require medical or other professional treatment

or counseling.” D.C. Code § 22-3132(4). To constitute a “course of conduct,” the

defendant must have acted “on 2 or more occasions” either “directly or indirectly,

or through one or more third persons.” Id. § 22-3132(8).

The trial court instructed the jury that it must find that Mr. Keerikkattil

“voluntarily and on purpose” “did directly or indirectly follow, monitor, threaten or

communicate to or about [S.S.]” “on two or more occasions.” The jurors were also 11

instructed that they must find that “when he did so, he should have known that his

conduct would cause a reasonable person in [S.S.’s] circumstances to [ ] fear for her

safety or the safety of another[;] or [ ] feel seriously alarmed, disturbed, or

frightened[;] or [ ] suffer emotional distress.” The trial court cautioned the jurors

that “[f]iling a lawsuit is constitutionally protected activity. You may not consider

the fact that such lawsuits were filed, or any statements made to a court during such

lawsuits, as part of the conduct that the government must prove beyond a reasonable

doubt.” Nevertheless, “communicating directly or indirectly to a person involved in

a lawsuit . . . is not constitutionally protected and may be considered by you in

determining whether the government has proven the offense beyond a reasonable

doubt.”

The adequacy of the trial court’s instructions must be considered in light of

our subsequent decision in Mashaud. There, we significantly narrowed the scope of

Section 22-3133 because, without modification, “[t]he constitutional problems with

the statute [were] glaring.” Id. at 1144. We interpreted the section “to mean that,

when speech is at issue, the statute covers only speech that fits within the

‘well-defined and narrowly limited classes of speech, the prevention and punishment

of which have never been thought to raise any Constitutional problem.’” Id. (quoting

United States v. Stevens, 559 U.S. 460, 468-69 (2010)). “That includes threats,

obscenity, defamation, fraud, incitement, and speech integral to criminal conduct.” 12

Id. “Outside of those narrow categories, speech is constitutionally protected activity

that the statute does not apply to.” Id. We refer to these “narrowly limited classes

of speech,” Stevens, 559 U.S. at 469, as the categorical exceptions. In light of

Mashaud, a jury cannot consider the content of a defendant’s speech as one of the

occasions comprising a course of conduct for stalking unless it finds that the speech

falls within a categorical exception. Mashaud, 295 A.3d at 1144.

II. Discussion

Mr. Keerikkattil raises four challenges to his conviction: he argues that (1) the

trial court erred by failing to instruct the jury in a manner consistent with Mashaud

v. Boone, 295 A.3d 1139 (D.C. 2023) (en banc); (2) the government presented

insufficient evidence to convict him; (3) the trial court lacked jurisdiction to try him;

and (4) the court imposed an illegal sentence upon him. We address each argument

in turn, ultimately affirming Mr. Keerikkattil’s conviction but remanding the case to

the trial court for resentencing. 1

1 Mr. Keerikkattil also argues that the trial court erred, and violated his due- process rights, by not instructing the jury that it needed to find him more than merely negligent before convicting him, because we have established a heightened mens rea requirement for criminal threats. See Carrell v. United States, 165 A.3d 314, 317 (D.C. 2017) (en banc) (“We now hold that the government must prove the defendant’s mens rea to utter the words as a threat, and that it may do so by establishing that the defendant acted with the purpose to threaten or with knowledge 13

A. Instructional Error

The gravamen of Mr. Keerikkattil’s first claim on appeal—at least if

interpreted generously—appears to be that the trial court erred by not instructing the

jury that it must find beyond a reasonable doubt that his conduct was either

nonexpressive conduct or conduct that fell within the narrowly defined bounds of a

categorical exception to the First Amendment’s protection. In our view, any such

error on the part of the trial court—which Mr. Keerikkattil failed to preserve—did

not affect Mr. Keerikkattil’s substantial rights and, as a result, does not warrant

reversal.

1. Standard of Review

Mr. Keerikkattil did not raise this First Amendment challenge with the trial

court, and it is thus unpreserved. 2 Unpreserved arguments are forfeited because the

that his words would be perceived as a threat.”); see also Counterman v. Colorado, 600 U.S. 66, 69 (2023) (requiring a mens rea of at least recklessness before a defendant may be convicted for speech constituting a true threat of violence). Implicit in Mr. Keerikkattil’s argument is the assumption that the government needed to prove that his communications were criminal threats. Because we conclude that the government could convict Mr. Keerikkattil without proving any of the communications at issue were threats, we do not reach this argument. 2 Mr. Keerikkattil did raise a different First Amendment argument at trial. He argued that the jury could not consider communications relating to the lawsuits he filed against S.S. and others because those statements were constitutionally protected. The trial court accepted his objection, at least partially, and instructed the 14

failure to raise such arguments with the trial court deprives that court of the

opportunity to remedy the error before or during trial. See Puckett v. United States,

556 U.S. 129, 134 (2009) (describing the justifications for the plain-error rule). We

redress such unpreserved errors only where the defendant proves it was not just any

error but plain error—a “difficult” standard to meet. Greer v. United States, 593

U.S. 503, 508 (2021) (internal quotation omitted); see Grogan v. United States, 271

A.3d 196, 212-13 (D.C. 2022) (“If [the requirements of plain-error review] are met,

an appellate court may exercise its discretion to notice a forfeited error . . . .”); D.C.

Super. Ct. Crim. R. 52(b) (“A plain error that affects substantial rights may be

considered even though it was not brought to the court’s attention.”). Because

Mr. Keerikkattil did not present his First Amendment challenge to the jury

instructions to the trial court, we review his claim for plain error only.

Under plain-error review, Mr. Keerikkattil must establish that (1) the trial

court erred; (2) “the error was plain,” meaning “clear or obvious”; (3) “the error

affected his substantial rights”; and (4) “the error seriously affect[ed] the fairness,

jury not to consider the fact of the lawsuit or statements made in court, although it could consider communications directed to participants in the lawsuit. This First Amendment argument, however, is distinct from the argument Mr. Keerikkattil presses on appeal, and Mr. Keerikkattil does not argue in this court that he preserved his current First Amendment argument. 15

integrity, or public reputation of judicial proceedings.” Grogan, 271 A.3d at 212-13

(internal quotations omitted).

Although Mr. Keerikkattil does not dispute that he forfeited his First

Amendment argument in the trial court, he contends we must review the issue for

structural error. We disagree.

Structural errors are those that “affect[ ] the framework within which the trial

proceeds, rather than simply [ ] error[s] in the trial process itself.” Arizona v.

Fulminante, 499 U.S. 279, 310 (1991). Structural errors entitle a defendant to

automatic reversal because errors that undermine “the framework within which the

trial proceeds” create “structural defects” that “defy analysis by ‘harmless-error’

standards.” Id. at 309. Structural-error review and plain-error review are not

mutually exclusive. When an error is subject to both plain-error review (because it

was unpreserved) and structural-error review, the third prong of plain-error

analysis—whether the error affected the defendant’s substantial rights—essentially

falls out of the picture. See Arthur v. United States, 986 A.2d 398, 413 (D.C. 2009)

(“[I]f [an error] is structural in nature, the defendant’s substantial rights will be

deemed to have been affected, without need for further analysis in the context of the

particular trial.”); see also Johnson v. United States, 520 U.S. 461, 468-69 (1997)

(acknowledging, without resolving, petitioner’s argument that a structural error 16

necessarily affects substantial rights); Barrows v. United States, 15 A.3d 673, 680

(D.C. 2011) (holding that although a structural error necessarily satisfies the third

prong of plain-error review, a structural error “is not,” by itself, “enough for a court

to conclude that the fourth prong is satisfied”).

In our view, the alleged error in this case is not structural. The Supreme Court

has identified three categories of cases that involve structural errors: (1) cases

involving the violation of a right “not designed to protect the defendant from

erroneous conviction but instead protect[ ] some other interest”; (2) cases

concerning errors with effects that “are simply too hard to measure”; and (3) cases

with errors that “always result[ ] in fundamental unfairness.” Weaver v.

Massachusetts, 582 U.S. 286, 294-96 (2017) (“These categories are not rigid. In a

particular case, more than one of these rationales may be part of the explanation for

why an error is deemed to be structural.”). Mr. Keerikkattil contends that this case

falls within the third category: errors that “result[ ] in fundamental unfairness.” Id.

at 296. We are not convinced.

An instructional error like the one at issue here, even one involving a

constitutional right, does not “always result[ ] in fundamental unfairness.” Id.

Instructional errors are structural only if they “‘vitiate[ ] all the jury’s findings’ and

produce[ ] ‘consequences that are necessarily unquantifiable and indeterminate.’” 17

Neder v. United States, 527 U.S. 1, 11 (1999) (citation omitted) (quoting Sullivan v.

Louisiana, 508 U.S. 275, 281 (1993)) (reviewing the trial court’s omission of an

essential element of the offense for harmless error rather than structural error);

accord Hedgpeth v. Pulido, 555 U.S. 57, 58, 60-61 (2008) (per curiam) (applying

harmless-error review to a trial court’s instruction to a jury that it could convict the

defendant based on an invalid theory of guilt and noting that “constitutional errors

can be harmless”). Here, many of the jury’s findings could remain intact

notwithstanding the error. For example, findings relating to content-neutral speech,

conduct, or speech that falls within a categorical exception would not run afoul of

Mashaud. See Mashaud, 295 A.3d at 1144, 1160-61. What would have happened

in a counterfactual world without the alleged error, therefore, is not “necessarily

unquantifiable and indeterminate.” Neder, 527 U.S. at 11 (internal quotation

omitted). We can evaluate the counterfactual by considering what a jury would have

done if confined only to the permissible evidence. See, e.g., Blades v. United States,

200 A.3d 230, 242-43 (D.C. 2019) (analyzing the effect that inadmissible evidence

had on the jury and concluding that the introduction of the inadmissible evidence

“was harmless beyond a reasonable doubt”). This case is thus a far cry from the kind

of instructional error that might result in automatic reversal, such as instructing a

jury that it need not find guilt beyond a reasonable doubt. See Sullivan v. Louisiana, 18

508 U.S. 275, 281-82 (1993). The alleged error here is not structural, and

Mr. Keerikkattil must establish all four prongs of plain error.

2. The Instructional Error Did Not Affect Mr. Keerikkattil’s Substantial Rights

We hold that the trial court did not plainly err because, although the failure to

provide the jury instruction at issue was erroneous, and that error was plain, it did

not affect Mr. Keerikkattil’s substantial rights.

On the first prong of plain-error review, the trial court erred because its failure

to instruct the jury regarding exceptions to First Amendment protection conflicted

with the standard set forth in Mashaud. In Mashaud, we held that where the alleged

course of conduct establishing criminal stalking involves the content of speech, that

speech must fall within a categorical exception to the First Amendment’s protection.

See 295 A.3d at 1144. The jury instructions in this case included no such limitations.

The court instructed the jury that it need only find that Mr. Keerikkattil used “text[s],

mail, instant messag[es], or . . . a website” to “follow, monitor, threaten or

communicate to or about [S.S.]” in a way “he should have known” “would cause a

reasonable person in [S.S.]’s circumstances to” “fear for her safety or the safety of

another”; “feel seriously alarmed, disturbed or frightened”; or “suffer emotional

distress.” The court did not instruct the jury that it needed to find that

Mr. Keerikkattil’s speech constituted a “threat[ ], obscenity, defamation, fraud, 19

incitement, [or] speech integral to criminal conduct.” Id. The instructions thus

permitted the jury to consider a wide range of constitutionally protected

communications that Mashaud placed outside the realm of consideration in stalking

cases. See id.

That error also was plain, satisfying the second prong of plain-error review.

The error may not have been obvious at the time of trial because we had not yet

decided Mashaud. Nevertheless, we assess whether an error is plain based on the

state of the law at the time of review, not the time of trial. See Henderson v. United

States, 568 U.S. 266, 277 (2013) (“Thus, in the direct appeals of cases that are not

yet final, we consider the ‘time of review’ interpretation the better reading of

Rule 52’s words ‘plain error.’”); accord Muir v. District of Columbia, 129 A.3d 265,

274 (D.C. 2016) (“Henderson’s analysis of the plain error doctrine is persuasive, and

because Superior Court Rule of Criminal Procedure 52(b) is derived from Federal

Rule of Criminal Procedure 52(b) and identical to it in all material respects, we have

every reason to follow Henderson and construe our Rule consistently.”). Now, at

the time of our review, Mashaud is the law, and it clearly establishes that a jury may

find stalking based on a course of conduct involving the content of speech only if

that speech falls within a categorical exception. 295 A.3d at 1144. The trial court’s

failure to instruct the jury as much constitutes clear or obvious error. 20

The United States resists this conclusion. It argues that the court did not err,

or at least not clearly so, even under Mashaud because the conduct upon which the

government relied at trial either (1) did not involve protected speech (or speech at

all) or, if it did, (2) fell within a categorical exception. We are not persuaded.

First, even though some of the evidence the government relied on did not

involve speech, that fact does not absolve the instructional error with respect to other

occasions involving speech. Most of the government’s evidence at trial involved

Mr. Keerikkattil’s text messages, emails, and letters. The government suggests that

even if some of the conduct involved speech, much of that speech is not plainly

protected by the First Amendment because it involved merely private

communications. 3 In our view, this argument misframes the analysis. The ultimate

question is not whether the consideration of the speech violates the First Amendment

but rather whether it runs afoul of the saving construction of Section 22-3133 we

crafted in Mashaud. Mashaud did not bless the statute’s application in every

3 We note that the government “[can]not generally prohibit or punish, in its capacity as sovereign, speech on the ground that it does not touch upon matters of public concern.” Engquist v. Or. Dep’t of Agric., 553 U.S. 591, 600 (2008); see Connick v. Myers, 461 U.S. 138, 147 (1983) (“We in no sense suggest that speech on private matters falls into one of the narrow and well-defined classes of expression which carries so little social value, such as obscenity, that the State can prohibit and punish such expression by all persons in its jurisdiction.”). Speech on matters of private concern retains First Amendment protection, even if that protection is “often less rigorous.” Snyder v. Phelps, 562 U.S. 443, 452 (2011). 21

situation that would pass strict scrutiny or some other constitutional test. Indeed, the

court explicitly rejected such an interpretation because it would “walk[ ] right into a

different and equally devastating constitutional problem,” Mashaud, 295 A.3d at

1162: it would be unconstitutionally vague, see id. Instead, Mashaud established a

specific test for which kinds of speech could fall under the statute. The speech either

must violate the statute without any need to look at its content, or it must fall within

a categorical exception such as defamation or true threats of violence. See id. at

1159-61. In this case, the government relied on the content of the speech in

Mr. Keerikkattil’s text messages, emails, and letters, and, as a result, that speech

must fit within a categorical exception to comply with Mashaud.

That brings us to the government’s second argument. It argues that the speech

at issue in this case does, in fact, fall within various categorical exceptions and thus

comports with Mashaud. The problem with this argument, however, is that whether

the speech fits within a categorical exception involves, in part, factual

determinations that the jury needed to make.

Consider, for example, the government’s argument that the July 6 email to

S.S. and other Deloitte employees and the September 29 letter to the IRS constitute

defamation. Maybe so, but whether speech constitutes defamation, or falls within

any other categorical exception, is not a purely legal question for a court to 22

determine—although the trial court could, in some cases, conclude as a matter of

law that the speech did not fall within a categorical exception. Defamation requires

proof that, among other things, the victim was harmed by the defamatory statements.

Oparaugo v. Watts, 884 A.2d 63, 76 (D.C. 2005) (listing the elements of

defamation). That is a question of fact, which in this case would have turned on, for

example, whether the jury believed S.S.’s testimony about the anguish the letter and

email wrought. The jury instructions, however, did not require the jury to find that

Mr. Keerikkattil’s conduct actually harmed S.S., only that he “should have known

his conduct would cause a reasonable person in [S.S.]’s circumstances” harm. The

absence of a harm instruction ordinarily would pose no issue because D.C. Code

§ 22-3133 does not require injury. But defamation does. If the government believes

that the letter and email constituted defamation, then the failure to instruct the jury

that it needed to find that those communications injured S.S. was error. 4

4 D.C. law may not define defamation conterminously with the constitutional categorical exception. In other words, the contours of D.C. defamation law may differ from those of the First Amendment’s categorical exception for defamatory speech. Presumably, the defamation laws of the fifty states (and the District) vary, but the First Amendment speaks with a single voice. As a result, the categorical exception may be broader than D.C. defamation law, and some speech might fall within that categorical exception even if a defendant would not be liable for defamation under D.C. law. Cf. United States v. Alvarez, 567 U.S. 709, 718-19 (2012) (plurality opinion) (discussing some of the contours of the categorical exception for defamation). We understand Mashaud to be referring to this categorical exception—as opposed to specifically D.C.’s defamation law—because 23

Although the trial court erred, and that error was clear or obvious, the

government’s aforementioned arguments—that the jury could have considered at

least some of the evidence and would have found Mr. Keerikkattil guilty anyway—

are relevant to the substantial-rights prong of plain-error review, to which we now

turn. We hold that the instructional error did not affect Mr. Keerikkattil’s substantial

rights. An error affects substantial rights if the defendant shows “a reasonable

probability of a different outcome but for the established error.” Geter v. United

States, 306 A.3d 126, 139 (D.C. 2023) (internal quotation omitted). The standard

requires “[m]ore than a mere possibility of prejudice”; the error must “undermine[ ]

confidence in the trial’s outcome.” Id. at 140 (internal quotation omitted).

In the context of this case, Mr. Keerikkattil must establish a reasonable

probability that, if a Mashaud-based instruction had been provided, 5 the jury would

it was grounded in First Amendment principles. In this case, however, we need not delve into whether and where the categorical exception and D.C. law differ because the government relies on the definition in D.C. defamation law in its briefs to this court. 5 Mr. Keerikkattil does not propose any particular instruction beyond arguing that the jury should have been instructed in a manner consistent with Mashaud’s narrowing of the stalking statute, presumably as a part of the court’s final jury instructions articulating the elements of stalking. He does not further argue that any particular evidence should have been excluded or should have been accompanied by a limiting instruction restricting its usage and consideration in any particular way. We can imagine a number of difficult questions that might arise had such arguments been preserved and argued before us. But they have not been, and we will not manufacture them on our own—particularly on plain-error review. 24

not have found that on at least two occasions he knew or should have known that his

intentional conduct would cause S.S. emotional distress. At trial, the government

relied on nine occasions: (1) the June 28 litigation-hold email to Mr. Rajan and S.S.

alleging an inappropriate workplace relationship between the two; (2) the July 6

email to S.S. and other Deloitte employees accusing her of, among other things,

blatant fraud; (3) the July 28 email to S.S. warning her that she might end up paying

damages for the rest of her life unless she told the truth; (4) the August sighting at

the café near Deloitte’s office; (5) the September letter to the IRS alleging S.S. had

been fired for illegal drug use; (6) the October 1 text messages blaming S.S. for

ruining Mr. Keerikkattil’s life and pledging to fight back; (7) the October 9 text

messages promising revenge; (8) the October 24 visit to S.S.’s parents; and (9) the

text messages Mr. Keerikkattil sent after visiting S.S.’s parents. We must determine

whether there exists a reasonable probability that if the jury had been presented with

only the subset of this evidence that it could properly consider under Mashaud, it

would have reached a different result. Although the government pressed all nine

occasions at trial, a conviction requires only two occasions, and we focus our

analysis on the final two occasions: the Oregon trip and the subsequent text

messages.

Before conducting this analysis, we note that our blindness to the content of

speech applies only to the speech being regulated. We may consider the content of 25

other communications as evidence that informs our conclusions about whether the

actus reus conduct at issue was likely to cause S.S. emotional distress. See Wisconsin

v. Mitchell, 508 U.S. 476, 489 (1993) (“The First Amendment . . . does not prohibit

the evidentiary use of speech to establish the elements of a crime or to prove motive

or intent. Evidence of a defendant’s previous declarations or statements is

commonly admitted in criminal trials subject to evidentiary rules dealing with

relevancy, reliability, and the like.”); United States v. Kaziu, 559 F. App’x 32, 35

(2d Cir. 2014) (nonprecedential) (affirming a conviction for distributing material in

support of a foreign terrorist organization because the defendant’s “political beliefs

were introduced to prove the mens rea element of the charged crimes” and the

evidence “was admitted not as inherently criminal conduct, but as proof that [the

defendant] knowingly and intentionally committed the charged offense”); see also

United States v. Stewart, 686 F.3d 156, 161-62, 171 & n.17 (2d Cir. 2012) (holding

that the defendant’s confession was not regulated speech in a prosecution about

whether other communications had violated “Special Administrative Procedures”

that she had agreed to and analogizing the argument to one that the use of a

murderer’s confession would violate the First Amendment). Given that we are

analyzing the government’s evidence as if the only “occasions” for purposes of the

criminal course of conduct were the Oregon trip and subsequent text messages,

consideration of the content of other communications as context for these 26

communications does not trigger First Amendment scrutiny because the other

communications are not themselves being regulated. Consequently, we may

consider, as a jury may have considered, the content of Mr. Keerikkattil’s prior

communications to determine the potential for the Oregon trip and the subsequent

text messages to inflict emotional distress on someone in S.S.’s circumstances.

The first occasion we consider in Mr. Keerikkattil’s course of conduct is the

Oregon trip. Although the trip was an indirect communication to S.S. because it

conveyed a message to her, see D.C. Code § 22-3132(3) (defining communicating),

Mr. Keerikkattil does not argue that the jury could not consider this expressive

conduct. Nor does he address whether the expressive aspects of the trip are severable

from the conduct such that the jury could consider the conduct without infringing on

the expression. Instead, he focuses his argument on the emails, letters, and text

messages he sent. Under plain-error review, the burden fell on Mr. Keerikkattil to

show that consideration of the Oregon trip was erroneous. See Geter, 306 A.3d at

131. By failing to argue the point, he has not carried his burden.

Mr. Keerikkattil should have known that the trip would cause someone in

S.S.’s circumstances emotional distress. Mr. Keerikkattil flew across the country

and then drove over three hours from the airport to the house of S.S.’s parents. S.S.

had never told Mr. Keerikkattil where her parents lived, and he had never met them. 27

Mr. Keerikkattil’s trip conveyed both the lengths to which he was willing to go to

hurt S.S. as well as a suggestion that his retributive efforts might reach her loved

ones too. As S.S. testified, she understood perfectly the message Mr. Keerikkattil

was sending her, and she found it “very alarming.”

The second occasion we consider is the series of text messages

Mr. Keerikkattil sent S.S. after his Oregon trip, looking not to their content but only

to the fact of their communication, which Mashaud allows. Our decision in

Mashaud did not reach all aspects of communication. Beyond permitting the statute

to cover speech within the categorical exceptions to First Amendment protection,

Mashaud also left intact Section 22-3133’s regulation of communications that do not

turn on the communications’ content. See id. at 1160-61 (distinguishing cases that

did not “depend[ ] on the sort of content-based speech restriction that would be

excluded from the stalking statute’s scope under the construction we adopt”); see

also Atkinson v. United States, 121 A.3d 780, 782-83 (D.C. 2015) (involving “back-

to-back” calls “throughout the evening” and “into the early morning hours” and

continued outreach after being repeatedly told to cease contact); Whylie v. United

States, 98 A.3d 156, 161 (D.C. 2014) (concerning “thousands of phone calls” to the

victim over the course of a month and, for a separate count, 800 calls that violated a

no-contact order). If the stalking stemmed from the mere fact of communication, as

opposed to the contents of the communication, Mashaud’s saving construction of 28

Section 22-3133 poses no barrier. See Mashaud, 295 A.3d at 1160-61 (“[I]t is only

when a stalking charge depends on the content of one’s speech that our narrow

interpretation of the statute’s application to speech comes into play.”); Counterman

v. Colorado, 600 U.S. 66, 86 (2023) (Sotomayor, J., concurring) (“The content of

the repeated communications can sometimes be irrelevant, such as persistently

calling someone and hanging up, or a stream of utterly prosaic communications.”

(internal quotation omitted)). A jury may consider the act of sending the

communication—but not what lay within the communication—as part of a “course

of conduct” that the defendant “should have known” would inflict “emotional

distress” upon the victim. D.C. Code § 22-3133; see Mashaud, 295 A.3d at 1160-61.

The mere fact of sending a few text messages might not ordinarily amount to

criminal stalking. In this case, however, context proves otherwise. To be sure, “to

trigger criminal liability, the level of fear, alarm, or emotional distress must rise

significantly above that which is commonly experienced in day to day living and

must involve a severe intrusion on the victim’s personal privacy and autonomy.”

Coleman v. United States, 202 A.3d 1127, 1146 (D.C. 2019) (brackets, citation, and

internal quotations omitted); see D.C. Code § 22-3132 (“‘Emotional distress’ means

significant mental suffering or distress that may, but does not necessarily, require

medical or other professional treatment or counseling . . . .”). In our view, the fact 29

of communication from Mr. Keerikkattil’s October 24 text messages satisfies that

threshold.

Mr. Keerikkattil’s relationship with S.S. had already deteriorated before he

sent the texts. Mr. Keerikkattil himself had demanded in a cease and desist letter

that S.S. “refrain from contacting [him] except for legitimate business needs of

Deloitte LLP”; S.S. had filed a formal complaint against Mr. Keerikkattil at Deloitte;

and S.S.’s lawyer had “instructed” Mr. Keerikkattil “to direct any communications

intended for [S.S.], regardless of subject matter or context, exclusively to [the

lawyer] or [their] designee(s).” Mr. Keerikkattil had sent letters and emails to S.S.’s

employer and a government agency trying to get her fired and suggesting that she

might face criminal liability. Mr. Keerikkattil had also texted S.S. and threatened to

“fight” her, accused her of making his “life hell,” and told her he planned to “fuck

up [her] life.” On top of all of this, the October 24 text messages arrived on the heels

of Mr. Keerikkattil’s Oregon trip, which imparted its own menacing message. On

that same day, Mr. Keerikkattil sent S.S. six new text messages. 6 This after S.S. had

declined to respond to any of Mr. Keerikkattil’s text messages over the last few

6 Mr. Keerikkattil has not argued that the Oregon trip and the subsequent text messages should be considered as a single occasion because they occurred on the same day. See D.C. Code § 22-3133(c) (“Where a single act is of a continuing nature, each 24-hour period constitutes a separate occasion.”). We thus express no view on whether the Oregon trip and subsequent texts constituted “a single act of a continuing nature.” Id. 30

months—except on one occasion to ask who was texting her when he reached out

from a new number. The combination of (1) explicit instructions not to contact S.S.,

(2) Mr. Keerikkattil’s declared intent to “fight” S.S. and “fuck up [her] life,”

(3) Mr. Keerikkattil’s prior efforts to sabotage S.S. through reports to her superiors

and the IRS, and (4) the recent Oregon trip convinces us that Mr. Keerikkattil should

have known that the mere fact of additional communication was likely to instill

emotional distress in S.S. At this point, each new communication from

Mr. Keerikkattil —irrespective of its content —reflected another intrusion into S.S.’s

life from which she could not escape. The harm from the fact of communication in

these text messages thus rose above “that which is commonly experienced in day to

day living” and crossed into “a severe intrusion on a victim’s personal privacy and

autonomy.” Coleman, 202 A.3d at 1146.

We discern no reasonable probability that the jury would have reached a

different conclusion if it considered only the harm inflicted by the Oregon trip and

the fact of communication from the following text messages. Although the

government presented more occasions at trial, it was required to prove only two

occasions in which Mr. Keerikkattil “communicate[d] to” S.S. in a manner he should

have known was likely “to cause a reasonable person in [her] circumstances” to

“[s]uffer emotional distress.” D.C. Code §§ 22-3132(8)(A), -3133(a)(3).

Accordingly, we hold that the trial court did not plainly err, because the error did not 31

affect Mr. Keerikkattil’s substantial rights. See D.C. Super. Ct. Crim. R. 52(b)

(defining plain error as errors that “affect[ ] substantial rights”). 7

B. Sufficiency of the Evidence

Next, Mr. Keerikkattil argues that the government presented insufficient

evidence for the jury to convict him of stalking. Our conclusion that the government

presented sufficient evidence to support the conviction follows from our conclusion

above that the instructional error did not affect Mr. Keerikkattil’s substantial rights,

because there was other evidence to support a conviction.

When reviewing for sufficiency of the evidence, this court “view[s] the

evidence in the light most favorable to the government, giving full play to the right

of the fact-finder to determine credibility, weigh the evidence, and draw justifiable

inferences of fact, and [we] mak[e] no distinction between direct and circumstantial

evidence.” White v. United States, 207 A.3d 580, 587 (D.C. 2019) (internal

quotation omitted). This court will affirm “if any rational fact-finder could have

found the elements of the crime beyond a reasonable doubt.” Id. (internal quotation

omitted). Sufficient evidence in this case requires at least two occasions that satisfy

7 Because we conclude that Mr. Keerikkattil has not established that the error affected his substantial rights, we need not address the fourth prong of plain-error review. 32

Mashaud and thus could form a course of conduct directed at S.S. that

Mr. Keerikkattil “should have known would cause a reasonable person in [S.S.’s]

circumstances” emotional distress. See D.C. Code §§ 22-3132(8), -3133(a)(3).

As we explained above, by visiting S.S.’s parents and by texting S.S. directly

after the visit, Mr. Keerikkattil acted in a way he “should have known would cause

a reasonable person in [S.S.’s] circumstances” emotional distress on two occasions.

Id. § 22-3133. Based on the Oregon trip and the fact of communication from the

subsequent text messages, we hold that the government presented sufficient

evidence to support a conviction.

C. Jurisdiction

Mr. Keerikkattil argues that the trial court lacked jurisdiction over his case.

He contends that the government failed to prove that any of the actions that form his

alleged course of conduct occurred within the District of Columbia. We disagree.

1. Standard of Review and Applicable Law

We review jurisdictional questions de novo. Lucas v. United States, 305 A.3d

774, 776 (D.C. 2023). The D.C. Council provided the Superior Court with statutory

jurisdiction over “any criminal case under any law applicable exclusively to the

District of Columbia.” D.C. Code § 11-923(b)(1); see also id. § 22-3135(a) 33

(providing a potentially more permissive grant of jurisdiction in stalking cases).

This court has long interpreted Section 11-923(b)(1) to confer jurisdiction over

“criminal act[s]” “occur[ing] within the geographic boundaries of the District of

Columbia.” Dobyns v. United States, 30 A.3d 155, 157 (D.C. 2011). An act occurs

within the District if “one of several constituent elements to the complete offense”

happened in D.C. Id. at 157-58 (internal quotation omitted).

2. The Superior Court Possessed Jurisdiction

We conclude that the Superior Court had jurisdiction over this case. For the

reasons explained above, our decision to affirm Mr. Keerikkattil’s conviction relies

only on the Oregon trip and subsequent text messages. The government presented

uncontroverted evidence that S.S. learned of the Oregon trip and then received

Mr. Keerikkattil’s text messages while she was in her D.C. apartment. Because the

jury was required to find that Mr. Keerikkattil “directed” his communications at S.S.,

see D.C. Code § 22-3133(a), it is sufficient for purposes of jurisdiction that S.S.

received those communications in the District. See United States v. Baish, 460 A.2d

38, 43 (D.C. 1983) (holding that where “communication” is an “integral

component[ ] of the offense,” “if [the communication] is heard by someone within

the District of Columbia,” “the Superior Court properly will entertain jurisdiction

over an ensuing prosecution” “regardless of where [the defendant] utters the 34

[communication]”). Mr. Keerikkattil does not dispute this evidence. Accordingly,

the Superior Court possessed jurisdiction in this case.

D. Sentencing

Finally, Mr. Keerikkattil challenges his sentencing. He does so in two ways:

first, he argues that the trial court erred in remanding him to the Bureau of Prisons

because he was sentenced for a misdemeanor rather than a felony; second, he argues

that the trial court erred in sentencing him to probation over his objection.

With respect to the first argument, Mr. Keerikkattil contends that courts’

authority to send convicted defendants to the Bureau of Prisons derives from D.C.

Code § 24-101, which applies exclusively to felons. See D.C. Code § 24-101.

Mr. Keerikkattil argues that he was convicted of only a misdemeanor. The

government does not contest this argument but submits that Mr. Keerikkattil was not

harmed by any error. Although the trial court stated that Mr. Keerikkattil would be

“remanded to the custody of the Bureau of Prisons” as it imposed his sentence, the

government represents—and Mr. Keerikkattil does not dispute—that he was not

remanded to the Bureau of Prisons but rather served his eleven months at a D.C.

Correctional Treatment Facility. 35

We agree with the government. Even assuming the trial court erred, we hold

that Mr. Keerikkattil was not harmed by the trial court’s order that he be remanded

to the Bureau of Prisons because he was not, in fact, remanded to the Bureau of

Prisons. Mr. Keerikkattil asks us to consider the error in “context with all the other

errors that occurred,” but we fail to see how this error affected Mr. Keerikkattil in

any respect because it affected neither the jury’s finding of guilt nor the sentence he

actually served.

Mr. Keerikkattil’s second argument is that the trial court erred by sentencing

him to probation over his objection. Mr. Keerikkattil was subject to a maximum

prison sentence of twelve months of incarceration. See D.C. Code § 22-3134(a).

But the government requested a “lengthy period of probation” in order to adequately

“punish[ ]” Mr. Keerikkattil for his conduct. It suggested suspending one month of

a twelve-month sentence and imposing five years of probation. Mr. Keerikkattil’s

counsel expressly objected to probation, stating that his “client is unwilling to do

probation and [he would] be requesting . . . a 12-month sentence.” The trial court

nevertheless accepted the government’s recommendation and imposed an eleven-

month sentence with one month suspended and five years of supervised probation.

D.C. law prohibits the imposition of probation without the defendant’s

consent. See D.C. Code § 16-710(a) (“A person may not be put on probation without 36

his consent.”); Jamison v. United States, 600 A.2d 65, 70-71 (D.C. 1991) (“Where

counsel or the defendant fairly manifests an apparent objection to the probation . . .

the trial court cannot proceed to impose probation without obtaining an explicit

consent on the record, to ensure compliance with the command of the statute.”).

Mr. Keerikkattil argues that because he objected to probation, the trial court could

not sentence him to probation. The government concedes error, and we agree that,

to the extent Mr. Keerikkattil was sentenced to probation over his objection, the trial

court erred.

Despite conceding error on the merits, the government argues that we should

not consider Mr. Keerikkattil’s argument in the first place, because he raised it solely

in a Rule 28(k) letter submitted after he filed his opening brief. Rule 28(k) letters

are designed for the specific, and limited, purpose of apprising the court of

“significant authorities” that have “come to a party’s attention after the party’s brief

has been filed, or after oral argument but before decision.” D.C. App. R. 28(k).

“The letter must state without argument the reasons for the supplemental

citations . . . .” Id. (emphasis added). Because Mr. Keerikkattil’s letter included an

argument, the government urges us to ignore it as improper.

We agree that, in general, parties may not exploit Rule 28(k) by raising new

arguments outside their briefs, particularly when those arguments do not rely on 37

subsequent legal authority. See United States v. Jones, 308 F.3d 425, 427 n.1 (4th

Cir. 2002) (declining to consider an argument raised for the first time in a Rule 28(j)

letter and holding that “[b]ecause this argument was not presented in [appellant’s]

opening brief, it is waived”); United States v. Nason, 9 F.3d 155, 163 (1st Cir. 1993)

(“[Appellant] did not make this argument in his brief, and a letter submitted pursuant

to [R]ule 28(j) cannot raise a new issue.” (alteration in original) (internal quotation

omitted)); Valdez v. Mercy Hosp., 961 F.2d 1401, 1404 (8th Cir. 1992) (agreeing

with appellee that Rule 28(j) cannot be used “to raise an entirely new issue that might

have been raised long before the case was submitted”). 8 The reason for this general

8 We consider federal courts’ interpretations of Fed. R. App. P. 28(j) before December 2002 as persuasive authority with respect to interpreting D.C. App. R. 28(k). “When a local rule and a federal rule are identical, or nearly so, we will construe the local rule in a manner consistent with the federal rule to the extent possible under binding precedent . . . .” Wendemu v. Tesema, 304 A.3d 953, 961 n.4 (D.C. 2023) (quoting Montgomery v. Jimmy’s Tire & Auto Ctr., Inc., 566 A.2d 1025, 1027 (D.C. 1989)) (looking to federal-court decisions to aid in interpreting D.C. Super. Ct. Civ. R. 30(c)(2) and (d)(2)). Before December 2002, Fed. R. App. P. 28(j) essentially mirrored the current D.C. App. R. 28(k). Compare D.C. App. R. 28(k), with Fed. R. App. P. 28(j) (2001). In December 2002, however, the Supreme Court amended Fed. R. App. P. 28(j) to omit the phrase “without argument” and replaced it with a 350-word limit for supplemental-authority letters, see Fed. R. App. P. 28(j) (2002), “in part because of the difficulty distinguishing” between arguments and reasons for the supplemental citation. Fed. R. App. P. 28 advisory committee note to the 2002 amendment. Despite the 2002 amendments, federal courts continue to disapprove of new arguments raised in Rule 28(j) letters, at least without some intervening change in law. See, e.g., United States v. Ashford, 718 F.3d 377, 381 (4th Cir. 2013) (“We do not countenance a litigant’s use of Rule 28(j) as a means to advance new arguments couched as supplemental authorities.”); Niemi v. Lasshofer, 728 F.3d 1252, 1262 (10th Cir. 2013) (Gorsuch, 38

rule is that allowing parties to raise additional arguments after briefing denies the

opposing party an opportunity to respond and thus deprives the court of the full

benefit of the adversarial process. See S.C. Elec. & Gas Co. v. Interstate Com.

Comm’n, 734 F.2d 1541, 1546 (D.C. Cir. 1984) (declining to consider a Rule 28(j)

letter that raised an argument “to which respondent and intervenor have no

opportunity to reply” and characterizing the letter as a “strategy” used “to

supplement [petitioner’s] argument”); see also Ashford, 718 F.3d at 381 (“Indeed,

considering an argument advanced for the first time in a Rule 28(j) filing is not only

unfair to the appell[ant], it also creates the risk of an improvident or ill-advised

opinion being issued on an unbriefed issue.” (internal quotation omitted)); Niemi,

728 F.2d at 1262 (“[A]llowing Rule 28(j) letters to be used to introduce any sort of

new issue after briefing is complete [ ] risks leaving opponents with no opportunity

(at least if they abide the rules of appellate procedure) for a proper response; it risks

an improvident opinion from this court by tasking us with the job of issuing an

opinion without the full benefits of the adversarial process; and it invites an unsavory

degree of tactical sandbagging by litigants in future cases . . . .”).

J.) (“The proper function of Rule 28(j) letters, after all, is to advise the court of ‘new authorities’ a party has learned of after oral argument, not to interject a long available but previously unmentioned issue for decision.”). 39

In our view, the reasons courts typically ignore new arguments raised without

cause in supplemental-authority letters apply with negligible force in this case. Two

considerations combine to convince us that, under the circumstances here, we need

not blind ourselves to Mr. Keerikkattil’s admittedly improperly raised argument.

First, the government suffered no prejudice. Mr. Keerikkattil filed the Rule 28(k)

letter months before the United States submitted its response brief and a week before

the government successfully moved to extend its time to file that brief. The

government had ample opportunity to respond to the argument in its response brief,

and it took advantage of that opportunity. We thus enjoy the benefit of the

government’s full response. Second, the merits are straightforward. The

government conceded error. As a result, fear of incorrectly resolving the merits of

the issue need not hold us back.

To be sure, Mr. Keerikkattil should have moved either to amend his opening

brief or to file a supplemental brief. Cf. Spiegla v. Hull, 481 F.3d 961, 965 (7th Cir.

2007) (approving the use of a request for additional briefing to discuss a new issue).

We decline, however, to apply Rule 28(k) so rigidly as to ignore an uncontested issue

that the opposing party had an opportunity to brief. Because we hold that the trial

court erred in sentencing Mr. Keerikkattil to probation over his opposition, we

remand for it to impose a new sentence consistent with this opinion. 40

III. Conclusion

For the foregoing reasons, we affirm Mr. Keerikkattil’s conviction and

remand for the trial court to resentence him consistent with this opinion.

So ordered.