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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.
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.
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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.)
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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
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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
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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).
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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
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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
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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.
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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.)
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(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
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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)
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(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 large- capacity 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.
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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
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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
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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.
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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.
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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).
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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
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“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:
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[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.
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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 large- capacity 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
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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.