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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 23-CF-0196
RAKEEM WILLIS, APPELLANT,
V.
UNITED STATES, APPELLEE.
Appeal from the Superior Court of the District of Columbia (2019-CF1-007968)
(Hon. Michael Ryan, Trial Judge) (Hon. Milton C. Lee Jr., Motions Judge)
(Argued September 24, 2025 Decided November 20, 2025)
(Amended March 19, 2026 ∗)
Stefanie Schneider, Public Defender Service, with whom Jaclyn Frankfurt and Alice Wang, Public Defender Service, were on the briefs, for appellant.
David B. Goodhand, Assistant United States Attorney, with whom Edward R. Martin, United States Attorney at the time the brief was filed, and Chrisellen R. Kolb, Ariel Dean, and Michael Spence, Assistant United States Attorneys, were on the brief, for appellee.
∗ After the November 20, 2025, initial publication of this opinion, the division granted in part appellee’s petition for rehearing on March 19, 2026. The division amended the opinion by adding a discussion of remedy at the end of section II.A.3 and adding section II.B, along with attendant changes elsewhere. 2
Before EASTERLY and SHANKER, Associate Judges, and RUIZ, Senior Judge.
SHANKER, Associate Judge: Late one night in January 2019, Sean Shuler,
Javon Abney, and Tyrik Hagood were shot and killed on the 1500 block of Fort
Davis Place in Southeast, Washington, D.C. Appellant Rakeem Willis, along with
his codefendant Jonathan Winston, was charged with three counts of first-degree
(premeditated) murder for the deaths of the three men. During pretrial proceedings
in Superior Court, the motions court admitted the testimony of the government’s
historical cell site location information (CSLI) expert over objections from
Mr. Winston. 1 Following a jury trial, Mr. Willis was convicted of all three counts
of first-degree murder and one count of fleeing a law enforcement officer. 2
Mr. Willis appeals these convictions on three grounds.
First, Mr. Willis asserts that the motions court erred in its analysis under
Motorola Inc. v. Murray, 147 A.3d 751, 756 (D.C. 2016) (en banc), and Federal Rule
of Evidence 702 when admitting the expert testimony of Federal Bureau of
Investigation (FBI) Special Agent Billy Shaw, a member of the Bureau’s Cellular
Analysis Survey Team (CAST). Specifically, he contends that the motions court
1 Because the judge who presided over the motions proceedings and the judge who presided over trial were different, we refer in this opinion to the “motions court” and the “trial court” as appropriate. 2 The trial court granted Mr. Winston’s motion for a judgment of acquittal at the conclusion of the government’s case in chief. 3
failed to properly determine whether Special Agent Shaw’s testimony was the
product of reliable principles and methods and to consider whether Special Agent
Shaw reliably applied the methodology to the facts of this case. Second, Mr. Willis
argues that the motions court erred when it found that the government’s notice
regarding Special Agent Shaw’s expert testimony satisfied Superior Court Rule of
Criminal Procedure 16. Third, Mr. Willis contends that the trial court abused its
discretion in declining to disqualify a juror based on indications that the juror was
sleeping or was otherwise inattentive throughout trial.
We hold that the motions court’s Motorola/Rule 702 analysis fell short of
what is required by both Rule 702 and our case law. We also conclude that this error
was not harmless and warrants reversal of Mr. Willis’s murder convictions. The
expert testimony did not, however, bear on Mr. Willis’s charge of fleeing a law
enforcement officer, and, because we see no abuse of discretion in the trial court’s
handling of the juror issue, we affirm that conviction. Accordingly, we reverse in
part and affirm in part and remand for further proceedings consistent with this
opinion, including, if the government so chooses, a new trial on the murder charges.
I. Background
The evidence at trial included the following. Two witnesses who lived on the
1500 block of Fort Davis Place testified that, on the night Messrs. Shuler, Abney, 4
and Hagood were murdered (January 26, 2019), they heard gunshots around
10:00 p.m. and saw two “silhouette[s]” shooting into a vehicle. As the shooters
drove away, one got out of their vehicle and stood over Mr. Shuler’s body and
“mess[ed]” with it. The car then drove off and neither witness was able to identify
the make of the car or its license plate number. When police responded, they found
Mr. Shuler’s body in the middle of the road and the bodies of Mr. Abney and
Mr. Hagood seated in a parked car with the engine running and the windows and
driver’s door open. A medical examiner concluded that all three men died from
multiple gunshot wounds.
About an hour after the shooting, in Capitol Heights, Maryland, police
responded to a report of a black Lexus on fire. At trial, the government introduced
video footage purporting to show that this Lexus was the car used by the shooters on
the night of the murders. Police later searched the car and found parts of a Glock 27
handgun, bullets, and cartridge casings. The government’s firearms expert testified
that the ammunition recovered from the murder scene did not match the Glock 27.
Phone numbers and related call records connected Mr. Willis to Mr. Shuler.
The government introduced evidence indicating that, at the time of the murders,
Mr. Willis used two different phone numbers: one with a 443 area code and another
with a 240 area code. Call records showed calls between Mr. Shuler’s number and 5
Mr. Willis’s 443 number throughout the afternoon of January 26. The records also
revealed calls between Mr. Shuler’s number and Mr. Willis’s 240 number from
shortly after 6:00 p.m. until just before 10:00 p.m. that night. The calls between
Mr. Shuler’s number and the numbers associated with Mr. Willis stopped around
10:00 p.m. The 443 number linked with Mr. Willis made a call to an IHOP
restaurant in Maryland just before midnight.
The government presented a historical CSLI expert, FBI Special Agent Shaw,
who used this phone activity to chronicle the approximate movement of the relevant
phones on the night of the murders. Using the locations of the cell towers that the
phone numbers connected with, Special Agent Shaw showed the 240 number linked
with Mr. Willis moving towards an area in the vicinity of the shootings shortly
before 10:00 p.m. He then showed the 443 number moving northbound on I-295
and converging with an alleged co-conspirator approximately where the burned-out
Lexus was later found. The cell site evidence further revealed the 443 number being
used just south of the IHOP restaurant where Mr. Willis was later identified on
surveillance footage by a law enforcement officer.
Police subsequently obtained a warrant for Mr. Willis’s arrest and, when they
tried to stop Mr. Willis’s car, he led them on a high-speed chase that ended when he
crashed his car and fled on foot. After a police canine sniffed the abandoned car, the 6
police tracked and ultimately found Mr. Willis hiding under a porch. They also
recovered a bag with $5,920 in cash and two cell phones nearby.
The jury found Mr. Willis guilty of three counts of first-degree murder and
one count of fleeing a law enforcement officer. The trial court sentenced Mr. Willis
to 120 years of imprisonment, consisting of consecutive forty-year terms for each
murder conviction and a concurrent five years for the flight conviction. This appeal
followed.
II. Analysis
Mr. Willis raises three issues on appeal. We hold that the motions court
improperly exercised its discretion when assessing the reliability of Special Agent
Shaw’s expert testimony under Motorola and Federal Rule of Evidence 702, that the
error was not harmless, and that the error warrants reversal of Mr. Willis’s murder
convictions but not his flight conviction (to which the CSLI evidence was not
relevant). In light of our Motorola/Rule 702 holding, we need not reach Mr. Willis’s
Rule 16 claim. Mr. Willis’s remaining claim about the inattentiveness of a juror is
pertinent to his flight conviction, but we conclude that the trial court did not abuse
its discretion in declining to disqualify the juror. Accordingly, we affirm the
conviction for fleeing a law enforcement officer. 7
A. Motorola/Rule 702
1. Additional Background
In deciding the admissibility of expert testimony, a court must consider
whether:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
Faltz v. United States, 318 A.3d 338, 348 (D.C. 2024) (quoting Motorola, 147 A.3d
at 756); see Fed. R. Evid. 702. 3 “The Rule [ ] elevates the trial judge’s role as
gatekeeper; it essentially provides that when a party proffers expert scientific
3 Federal Rule of Evidence 702 was amended in December 2023, after Mr. Willis’s trial. Fed. R. Evid. 702 (Apr. 24, 2023, eff. Dec. 1, 2023). The revised version requires a court to determine whether “the expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.” Fed. R. Evid. 702(d). The intent of the amendment was “to emphasize that each expert opinion must stay within the bounds of what can be concluded from a reliable application of the expert’s basis and methodology.” Fed. R. Evid. 702 advisory committee’s notes to 2023 amendments. “Nothing in the amendment imposes any new, specific procedures. Rather, the amendment is simply intended to clarify that Rule 104(a)’s requirement applies to expert opinions under Rule 702.” Id. 8
testimony, the trial court must make a preliminary assessment of whether the
reasoning or methodology underlying the testimony is scientifically valid . . . .”
Lewis v. United States, 263 A.3d 1049, 1059 (D.C. 2021) (citation modified). “Rule
702 expressly requires the trial court to determine whether an expert reliably applied
principles and methods to the case at hand . . . .” Faltz, 318 A.3d at 348 (citation
modified).
Before trial, Mr. Willis’s codefendant, Mr. Winston, moved to exclude the
historical cell site report and proposed testimony of the government’s expert, Special
Agent Shaw. 4 In Mr. Winston’s view, the notice of the expert and accompanying
report did not satisfy the requirements of Rule 16 and the methodology in the report
was insufficiently reliable to be admitted under Motorola and Rule 702. The thrust
of Mr. Winston’s argument was that the government’s expert would testify to the
exact coverage area of the relevant cell towers, which, he alleged, is not possible
based solely on historical call records. In opposition, the government argued that its
cell site expert would opine neither on the exact location of the phones at issue nor
on the exact coverage areas of the cell towers. Because Mr. Winston had, in the
4 The government’s original expert was FBI Special Agent Lynda Thomas, and she is the subject of Mr. Winston’s motion. The government notified the defendants in June 2022 that Special Agent Shaw would be replacing Special Agent Thomas. That substitution is not pertinent to Mr. Willis’s claims on appeal. 9
government’s view, grounded his motion on an inaccurate presumption about the
expert’s opinions, his arguments were “essentially moot.”
The motions court, ruling from the bench at a status hearing, concluded that
the proposed expert testimony and report were based on reliable principles and
would be admitted, albeit with certain limitations. The court declined to conduct a
hearing under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993),
because it had previously heard testimony by similar experts in approximately a
dozen other cases and had found the principles underlying the testimony reliable.
The court repeatedly stated that cross-examination was the appropriate tool for
meeting the force of the expert testimony. To address Mr. Winston’s concerns, the
court also indicated that it would instruct the jurors about how to process and weigh
expert testimony. The court explained that, in its view, Rule 702’s gatekeeping
function is designed to allow “more expert evidence in” and the rejection of expert
testimony is “the exception rather than the rule.” Specifically with respect to Rule
702(d), the motions court stated that “vigorous cross examination, presentation of
contrary evidence including [a] contrary witness, [and] careful instruction on the
burden of proof are the traditional means” of addressing the issue of reliable
application. Accordingly, the court denied Mr. Winston’s motion. 10
2. Standard of Review
We review a decision to admit or exclude expert testimony for abuse of
discretion. 5 Faltz, 318 A.3d at 347. “In reviewing for abuse of discretion, we must
determine whether the decision maker failed to consider a relevant factor, whether
the decision maker relied upon an improper factor, and whether the reasons given
reasonably support the conclusion.” Bishop v. United States, 310 A.3d 629, 641
(D.C. 2024) (citation modified). In addition, the trial court must make “an informed
choice drawn from a firm factual foundation.” Brooks v. United States, 993 A.2d
1090, 1093 (D.C. 2010) (citation modified). Although “the concept of exercise of
discretion is a review-restraining one,” id. (citation modified), “there is an important
tradeoff for giving the trial court such latitude: that court must take no shortcuts; it
must exercise its discretion with reference to [a]ll the necessary criteria.” Ibn-Tamas
v. United States, 407 A.2d 626, 635 (D.C. 1979). Consequently, “the appellate court
must not affirm a ruling premised on trial court discretion unless the record clearly
manifests either (1) that the trial court has ruled on each essential criterion, or (2) that
the trial court, as a matter of law, had but one option.” Id. (citation modified).
5 As noted above, only Mr. Willis’s codefendant, Mr. Winston, challenged the admissibility of Special Agent Shaw’s expert testimony. The government, however, has not argued that Mr. Willis failed to preserve this claim, and, at oral argument, it conceded that Mr. Winston’s objections served to preserve the issue for both defendants. 11
3. Discussion
Mr. Willis contends that the motions court abused its discretion in admitting
Special Agent Shaw’s testimony under Motorola and Federal Rule of Evidence 702.
He argues that, while the court understood that Rule 702 is the governing standard,
it failed to “actually apply it.” In particular, he asserts that the motions court did not
properly determine whether Special Agent Shaw’s testimony was the product of
reliable principles and methods or “whether Agent Shaw ‘reliably applied’ the
methodology to the facts of this case, as required by Rule 702(d).” Instead, the court,
according to Mr. Willis, “presumed that all CAST agents use the same principles
and methods to reach their conclusions” and that their “testimony is always
admissible.” These “presumption[s],” argues Mr. Willis, are both “factually and
legally flawed.” Mr. Willis further claims that the motions court relied too heavily
on the tools of the adversarial system, like cross-examination, as justification for
inquiring no further into the reliability issue. He contends that this was improper
because Daubert requires the court to make a preliminary assessment of reliability
before the jury weighs the evidence. This error, Mr. Willis asserts, was not harmless
and requires reversal.
In response, the government argues that the motions court properly identified
the data supporting Special Agent Shaw’s proposed testimony and the methodology 12
he employed, finding them both sufficient and reliable, which satisfies Rule 702.
The government additionally contends that Special Agent Shaw’s testimony was
correctly admitted under Rule 702 because the court acted within its discretion when
declining to hold a Daubert hearing after finding the expert testimony clearly
admissible. Historical CSLI analysis qualifies as such evidence, according to the
government, because it has been found to be sufficiently reliable, with some
limitations, by numerous state and federal courts. Because the court imposed
appropriate limitations on Special Agent Shaw’s testimony, the government asserts,
no further assessment was needed.
As an initial matter, we face some challenges in assessing whether the motions
court properly analyzed the admissibility of Special Agent Shaw’s testimony. After
discussing Mr. Winston’s motion to exclude Special Agent Shaw at a status hearing,
the motions court did not issue a written order setting forth its bases for admitting
the expert testimony. This court is thus left to parse the court’s statements at the
hearing to determine whether the court conducted a proper Motorola analysis. 6 See,
6 We do not suggest that written rulings are always required. Cf. Ibn-Tamas, 407 A.2d at 636 n.17 (“This is not to suggest that a trial court must articulate reasons, let alone correct reasons, for every evidentiary ruling. In most instances, the appellate court will be able to ‘infer the reasoning upon which the trial court made its determination.’” (citation omitted)). They are, however, advisable where, as here, a court must analyze the admissibility of evidence under a multi-factor test, in order 13
e.g., District of Columbia v. Facebook, Inc., 340 A.3d 1, 11 (D.C. 2025) (describing
the difficulties appellate courts face when they are forced to review hearing
transcripts as the primary source of a court’s Motorola/Rule 702 analysis); Ealey v.
Ealey, 596 A.2d 43, 46 (D.C. 1991) (“A trial judge must make findings of fact and
conclusions of law with respect to every material issue that is raised; otherwise
meaningful appellate review cannot occur and this court must remand the case or the
record.”); cf. Faltz, 318 A.3d at 348 (explaining that a conclusory statement in an
order denying a motion to exclude an expert witness necessitated a remand for
further analysis as required under Motorola).
To the extent we can glean the court’s thinking from the hearing transcript,
the court’s statements reveal some analysis under Motorola—and Mr. Willis
conceded at oral argument that the motions court’s analysis of Rules 702(a) and (b)
was sufficient—but fail to show a sufficient assessment of all the elements of Rule
702.
Rule 702, which we adopted in Motorola, requires the court to consider all
four of the rule’s factors when assessing proposed expert testimony. Fed. R. Evid.
702; see Motorola, 147 A.3d at 757-58. Notably absent from the discussion at the
to avoid a situation in which “the appellate court cannot tell from the record whether the judge sufficiently addressed each criterion required for the ruling.” Id. 14
motions hearing is an analysis of Special Agent Shaw’s proposed testimony under
Rule 702(d). Rule 702(d), at the time of the hearing, “expressly require[d] the court
to determine whether ‘the expert has reliably applied the principles and methods to
the facts of the case.’” Motorola, 147 A.3d at 757 (quoting Fed. R. Evid. 702(d)).
While the motions court here clearly understood the standard it was supposed to
employ, there is no indication in the record that it determined whether Special Agent
Shaw reliably applied the methodology used by CAST agents to the facts of this
case. Instead, the court immediately turned to the tools of the adversarial process as
the means to make the reliability determination. This was improper. See Daubert,
509 U.S. at 592-93 (holding that the trial judge must make “a preliminary assessment
of whether the reasoning or methodology underlying the testimony is scientifically
valid and of whether that reasoning or methodology properly can be applied to the
facts in issue”); see also Nease v. Ford Motor Co., 848 F.3d 219, 231 (4th Cir. 2017)
(“The district court’s ‘gatekeeping function’ under Daubert ensures that expert
evidence is sufficiently relevant and reliable when it is submitted to the jury. Rather
than ensure the reliability of the evidence on the front end, the district court
effectively let the jury make this determination after listening to [appellant’s] cross
examination of [appellee’s] expert.”). While “[v]igorous cross-examination” and
other features of the adversarial system remain “the traditional and appropriate
means of attacking shaky but admissible evidence,” Daubert, 509 U.S. at 596, it is 15
the court’s duty to make an initial determination about the reliability of the proposed
expert’s application of the methodology to the facts at issue, see Motorola, 147 A.3d
at 757.
When questions were raised regarding Special Agent Shaw’s application of
CAST’s methodology in this case, specifically about the reliability of the graphic
displays in the draft reports, the motions court did not engage with the content of the
draft reports but instead based its views on past experience. 7 When pressed further
by Mr. Winston’s counsel, the motions court sidestepped a Rule 702(d) analysis and
again suggested that cross-examination was the means by which to properly assess
the reliability of Special Agent Shaw’s work. 8
The court’s approach illustrates the problem the advisory committee was
trying to correct with the 2023 amendments to Rule 702(d). When responding to an
argument that Special Agent Shaw’s report would subvert the limitations placed on
his testimony, the court responded:
7 The draft report in existence at that time was authored by Special Agent Shaw’s predecessor, Special Agent Thomas. Special Agent Shaw’s final report was not available until July 28, 2022, well after the hearing. 8 When neither party could produce a copy of the draft report to supplement the discussion, the motions court decided to admit Special Agent Shaw’s testimony anyway and placed the burden on the defendants to re-raise with the court objections about particular slides in the report. 16
So isn’t that something that’s fair for cross examination. For example, the expert—assuming that the expert goes beyond what you think is within his knowledge base, wouldn’t that be appropriate for you to simply use cross examination to demonstrate . . . . It just seems to me to fit right in with what we would use as a tool to test the reliability of the princip[le], but also the reliability of its application to the data.
This view is incorrect. It is the court’s job to determine up front whether an expert
can testify “within the bounds of what can be concluded from a reliable application
of the expert’s basis and methodology” because “jurors may lack the specialized
knowledge to determine whether the conclusions of an expert go beyond what the
expert’s basis and methodology may reliably support.” Fed. R. Evid. 702 advisory
committee’s notes to 2023 amendments (citation modified). This duty continues
throughout the expert’s testimony because the court remains in a better position to
assess whether the expert has strayed beyond a reasonable application of their
methods. See United States v. Garcia, 752 F.3d 382, 396 (4th Cir. 2014) (holding
that the district court fulfilled its gatekeeping role initially but that it failed to do so
“throughout [the expert’s] testimony” where it was apparent that the expert was not
reliably applying their methodology).
At oral argument, the government contended that the motions court satisfied
Rule 702(d) because it prohibited Special Agent Shaw from opining about the phone
user’s exact location or asserting that phones always connect to the closest cell 17
tower. The motions court’s discussion at the hearing of these so-called “tripwires,”
according to the government, indicates an understanding of a decade’s worth of case
law regarding CSLI and shows consideration of the application of Special Agent
Shaw’s cell site methodology to Mr. Willis’s case. We disagree. These limitations
do not reveal whether Special Agent Shaw “reliably applied the principles and
methods” behind his testimony to the matter at hand. Faltz, 318 A.3d at 348; see
Fed. R. Evid. 702(d). At most, the motions court’s understanding of standard
limitations on cell site analysis shows a general grasp of CAST agents’ methodology
and likely testimony. But, as the motions court acknowledged at least implicitly
through its discussions with the government, these limitations are standard practice
for CSLI experts. A general application is not an adequate substitute for determining
whether Special Agent Shaw reliably applied CAST’s methodology “to the facts of
th[is] case.” Motorola, 147 A.3d at 757.
Put another way, the motions court understood the “bounds of what can be
concluded from a reliable application of [Special Agent Shaw’s] basis and
methodology.” Fed. R. Evid. 702 advisory committee’s notes to 2023 amendments.
But the record does not show that the court meaningfully assessed whether Special
Agent Shaw’s proposed testimony and report fell within those “bounds.” See id.
The government is correct that the court made a limited inquiry into the content of
Special Agent Shaw’s testimony at the hearing. The court’s query, however, did not 18
go beyond obtaining representations from the government about the content of
Special Agent Shaw’s testimony, which is insufficient. See Nelson v. United States,
601 A.2d 582, 590 (D.C. 1991) (holding that courts cannot rely on the
“representations of counsel to fill gaps in the record”); Girardot v. United States,
996 A.2d 341, 346 (D.C. 2010) (“In conducting its scrutiny of the [expert] proffer,
the trial court must take no shortcuts.”) (citation modified); see also United States v.
Daniels, 572 F.2d 535, 540 n.2 (5th Cir. 1978) (“It is questionable whether a trial
court should base evidentiary decisions on a prosecutor’s unsubstantiated
representations.”). While “there is no particular procedure that the trial court is
required to follow in executing its gatekeeping function under Daubert,” Lewis, 263
A.3d at 1060 (citation modified), courts must materially engage with the proffered
expert testimony to satisfy Rule 702(d)’s reliability requirement, see Motorola, 147
A.3d at 757.
We find United States v. Morgan, 45 F.4th 192 (D.C. Cir. 2022), instructive.
There, the appellant argued that the trial court erred when admitting the testimony
of the government’s expert—another member of CAST—after holding a multi-day
Daubert hearing. Id. at 198. The expert, rather than using historical CSLI, relied on
“drive testing technology” to opine on the approximate location of the defendant’s
and victim’s cell phones. Id. at 201-02. When evaluating the trial court’s
examination of whether the expert “reliably applied” his methodology to the case, 19
the court of appeals identified parts of the trial court’s order revealing a proper
analysis. Id. at 203-04. For example, the trial court checked to see if the expert had
assessed whether there had been any changes to the towers or cellular network since
the relevant incident before forming his opinions. Id. The trial court also scrutinized
whether a second CAST agent had peer reviewed the expert’s work for potential
errors. Id. at 204. Satisfied that these details, among others, showed that the trial
court had fulfilled its responsibility under Rule 702(d), id. at 203, the appellate court
concluded that “the [trial] court did not abuse its discretion in finding [the expert’s]
testimony to be sufficiently reliable[,]” id. at 204.
We cannot reach the same conclusion here. Courts need not check particular
boxes to satisfy Rule 702(d). See Motorola, 147 A.3d at 755 (“[T]he trial judge must
have considerable leeway in deciding in a particular case how to go about
determining whether particular expert testimony is reliable.” (quoting Kumho Tire
Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999))). They must, however,
demonstrate, as the district court in Morgan did, that they properly considered
whether an expert’s “principles and methods are . . . applied reliably to the facts of
the case.” Fed. R. Evid. 702 advisory committee’s notes to 2000 amendments; see
Faltz, 318 A.3d at 348. The motions court did not demonstrate such consideration
here. Absent that, its Motorola analysis was incomplete. See Faltz, 318 A.3d at
348; Motorola, 147 A.3d at 757. 20
Consequently, the motions court’s efforts “fell short of its gatekeeping role in
admitting expert testimony under Motorola.” See Faltz, 318 A.3d at 348. The court
was “expressly require[d]” to determine whether Special Agent Shaw “reliably
applied” CAST’s methods to the facts at hand. Motorola, 147 A.3d at 757. The
motions court’s statements at the hearing, however, do not allow us to conclude that
this analysis was conducted. When questions were raised in that vein, the motions
court was not prepared to discuss the report and placed the onus back on the
defendants to raise the issue again. A proper analysis under Rule 702(d) requires
more. Cf., e.g., Murray v. Motorola, Inc., 339 A.3d 152, 173-74 (D.C. 2025) (“Judge
Irving meticulously reviewed every expert’s report to determine if their testimony
passed muster. He ultimately found that they did not and articulated reasonable
bases for each of those determinations . . . act[ing] well within his discretion.”);
Morgan, 45 F.4th at 198 (explaining how data from the drive test that the CAST
agent employed was run through a proprietary program to generate maps and then
“independently revie[ed]” by a second agent “to check whether there were any
errors”); United States v. Valencia, 600 F.3d 389, 424 (5th Cir. 2010) (holding that
a Rule 702(d) analysis “requires more than a glance at the expert’s credentials; the
court must also ensure that the expert has reliably applied the methods in question”
(citation omitted)). The failure to properly consider the requirements of Rule 702(d)
is an abuse of discretion. See Bishop, 310 A.3d at 641; see also Benn v. United 21
States, 978 A.2d 1257, 1277 (D.C. 2009) (“Th[e] court must take no shortcuts; it
must exercise its discretion with reference to all the necessary criteria.” (quoting
Ibn-Tamas, 407 A.2d at 635)).
The next question is whether the court’s failure to properly scrutinize the
reliability of Special Agent Shaw’s application of his proffered methodology to the
facts of this case was harmless. See Smallwood v. United States, 312 A.3d 219, 227
(D.C. 2024) (“This court will affirm the trial court despite a non-constitutional error
if the error was harmless . . . .”). “An error is harmless if we can say, with fair
assurance, that the judgment was not substantially swayed by the error.” Faltz, 318
A.3d at 348 (citation modified). “[T]he central ‘issue is whether the record
eliminates the appellate court’s doubt about whether the error influenced the jury’s
decision.’” Smallwood, 312 A.3d at 227 (quoting Moghalu v. United States, 263
A.3d 462, 472 (D.C. 2021)). If an error is found, it is the government’s burden to
demonstrate that the error was harmless. See Randolph v. United States, 882 A.2d
210, 223 (D.C. 2005); Morales v. United States, 248 A.3d 161, 182 (D.C. 2021).
For nonconstitutional errors, this court has the “authority to find [a] trial court error
harmless notwithstanding the government’s failure to claim harmlessness.”
Randolph, 882 A.2d at 223. “Nevertheless, this authority must be exercised with
restraint.” Id. 22
The government’s brief includes no argument that the motions court’s error
in its Motorola analysis was harmless, nor any citation to Kotteakos v. United States,
328 U.S. 750, 764-65 (1946) (articulating the test for nonconstitutional errors), or
any other authority concerning harmless error. “The word harm does not appear in
its brief, nor does harmful, harmless, or any other permutation or synonym.”
Morales, 248 A.3d at 182. We therefore conclude that the government has forfeited
any argument that the motions court’s error in its Motorola/Rule 702 analysis was
harmless. See Rose v. United States, 629 A.2d 526, 535 (D.C. 1993) (“It is a basic
principle of appellate jurisprudence that points not urged on appeal are deemed to
be waived.”).
While we have the discretion to find the trial court error harmless
notwithstanding the government’s forfeiture, we exercise this discretion only when
harmlessness is “obvious.” Randolph, 882 A.2d at 223. Mr. Willis contends that
the government repeatedly highlighted Special Agent Shaw’s testimony during trial,
illustrating the “centrality” of this evidence to the government’s case. He also argues
that the government presented neither motive evidence nor physical evidence tying
him to the shooting, including no fingerprint or DNA evidence connecting him with
any physical evidence at the scene of the murders. This resulted, according to
Mr. Willis, in an “exceedingly weak” case. The government’s case, he claims, relied
almost entirely on inferences to be drawn from Mr. Willis’s purported calls with 23
Mr. Schuler and the alleged locations of Mr. Willis’s phones on the day of the
murders.
Mr. Willis’s arguments have at least some force. Because the harmlessness
of the motions court’s error is therefore “at least debatable,” we conclude that the
government should not be relieved of its forfeiture. See id.
Having concluded that the motions court erred and the error was not harmless,
we turn to the appropriate remedy. We begin by noting that D.C. Code § 17-306
allows this court to “affirm, modify, vacate, set aside or reverse any order or
judgment . . . lawfully brought before it for review, and may remand the cause and
direct the entry of such appropriate order, judgment, or decision, or require such
further proceedings to be had, as is just in the circumstances.” We further note that
in this court Mr. Willis sought “reversal” of his convictions and, while the
government argued that the motions court did not err, it did not contend in the
alternative that even if the court erred and the error was not harmless, a remedy other
than reversal of Mr. Willis’s convictions is appropriate, let alone required.
It suffices for present purposes to state that, in the context of Rule 702 or
Motorola/Daubert error, we at least have the discretion to reverse convictions and
remand for further proceedings, including, if the government so chooses, a new trial;
we are not required to merely vacate convictions and remand for further analysis of 24
the admissibility of the expert testimony. See D.C. Code § 17-306; United States v.
Bacon, 979 F.3d 766, 769-70 (9th Cir. 2020) (en banc) (holding, based on 28 U.S.C.
§ 2106 (the federal analogue to D.C. Code § 17-306), that an appellate court has
discretion to reverse a conviction or to remand for an admissibility hearing as the
remedy for an inadequate Rule 702 analysis). 9
To be sure, in other cases we have remanded for the trial court to reconduct a
Rule 702 admissibility analysis. See Facebook, 340 A.3d at 11-12; Faltz, 318 A.3d
at 348; Williams v. United States, 314 A.3d 1158, 1170 (D.C. 2024). We have not,
however, suggested that such remedy is required. Our cases involving a remand for
a new admissibility hearing, moreover, involved different circumstances. Facebook
9 We say “at least have the discretion” because there is a reasonable argument (albeit not one that we necessarily endorse) that reversal is the only appropriate relief upon a determination of non-harmless Rule 702/Motorola error, involving the admission (rather than the exclusion) of testimony, in a direct appeal from a criminal jury conviction. See Bacon, 979 F.3d at 769 (“There is considerable force behind both the argument that requiring retrial promotes Daubert’s gatekeeping function and the argument that requiring retrial can waste judicial resources and unnecessarily treats Daubert errors differently from other evidentiary errors.”) (citation modified); Mukhtar v. Cal. State Univ., Hayward, 319 F.3d 1073, 1074 (9th Cir. 2003) (“To remand for an evidentiary hearing post-jury verdict undermines Daubert’s requirement that some reliability determination must be made by the trial court before the jury is permitted to hear the evidence. Otherwise, instead of fulfilling its mandatory role as a gatekeeper, the district court clouds its duty to ensure that only reliable evidence is presented with impunity. A post-verdict analysis does not protect the purity of the trial, but instead creates an undue risk of post-hoc rationalization. This is hardly the gatekeeping role the Court envisioned in Daubert and its progeny.”), overruled by Bacon, 979 F.3d at 770. 25
was a civil case that had not gone to a jury trial; we reversed a grant of summary
judgment and remanded for reconsideration of the summary judgment motion under
the correct burden of proof for the claim at issue and also for “further analysis and
explanation” of the court’s exclusion of expert testimony. 340 A.3d at 10-12. Faltz
was a post-conviction Innocence Protection Act (IPA) case, and, after concluding
that the trial court both improperly admitted the government’s expert testimony
without assessing its reliability under Rule 702 and failed to consider all of the
evidence of innocence that the defendant presented, we remanded for
reconsideration of the IPA motion, including further analysis of the experts’
admissibility. 318 A.3d at 347-50. Neither Facebook nor Faltz was a direct appeal
in a criminal case with a jury trial.
While Williams was a direct appeal in a criminal case, we did not conclude
that the trial court committed harmful Rule 702/Motorola error. 314 A.3d at 1169.
Rather, because the trial court had assessed the admissibility of expert testimony
under our jurisdiction’s old Dyas/Frye test, 10 and during the pendency of the appeal
this court replaced the Dyas/Frye test with the Motorola test, we remanded for
analysis under the Motorola test. See id. at 1169-70; see also id. at 1170 (“[T]he
10 See Dyas v. United States, 376 A.2d 827 (D.C. 1977); Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). 26
trial judge’s decision to admit [the expert’s] testimony was based on her analysis
under Dyas/Frye, the test that governed at the time. She did not have a chance to
rule on the admissibility of the testimony under the standard we later adopted in
Motorola. Therefore, we hold that a remand is necessary in order for the trial judge
to apply that test.”). Indeed, we cited D.C. Code § 17-306 for the proposition that,
in light of the retroactive change in law, a remand was “just in the circumstances.”
Id. 11
Here, reversal of Mr. Willis’s murder convictions, rather than vacatur and
remand for a new admissibility hearing, is “just in the circumstances.” We cannot
say with confidence that the jury trial would not have proceeded differently, with
different testimony by Special Agent Shaw and cross-examination by Mr. Willis,
had the trial court put the government through its paces under Rule 702(d). With the
CSLI evidence constituting such a significant portion of the case against Mr. Willis,
reversal of Mr. Willis’s murder convictions is the just remedy. The CSLI evidence
did not, however, pertain to the charge of fleeing a law enforcement officer, so the
Motorola/Rule 702 error provides no basis to reverse that conviction.
Benn v. United States, 978 A.2d 1257 (D.C. 2009), and Ibn-Tamas v. United 11
States, 407 A.2d 626 (D.C. 1979), both involved the exclusion of defense expert testimony rather than the presentation of expert testimony to a jury without a proper Rule 702 analysis. Benn, 978 A.2d at 1273; Ibn-Tamas, 407 A.2d at 631, 640. 27
B. Juror Disqualification
Mr. Willis’s claim that the trial court abused its discretion in declining to
disqualify a juror who the defense asserted was sleeping, nodding off, or otherwise
inattentive during portions of the trial bears on the validity of Mr. Willis’s conviction
for fleeing a law enforcement officer. We see no abuse of discretion, however, in
the trial court’s handling of the matter. See Lester v. United States, 25 A.3d 867,
871 (D.C. 2011) (“When a trial court receives a report of a sleeping juror, it has
‘considerable discretion’ in deciding how to respond.” (quoting Samad v. United
States, 812 A.2d 226, 230 (D.C. 2002))).
If the trial court “notices, or is informed, that a juror is asleep during trial, the
court has a responsibility to inquire and to take further action if necessary to rectify
the situation.” Golsun v. United States, 592 A.2d 1054, 1057 (D.C. 1991). “On the
basis of its findings the court should then determine whether the juror’s conduct had
resulted in ‘substantial prejudice’ to the accused, meaning deprivation ‘of the
continued, objective, and disinterested judgment of the juror, thereby foreclosing the
accused’s right to a fair trial.’” Id. (quoting Lee v. United States, 454 A.2d 770, 773
(D.C. 1982)). If a juror is not “shown nor found to be ‘unable or disqualified to
perform juror duties,’” “the [trial] court is without legal authority to replace a juror
with an alternate during trial.” Hinton v. United States, 979 A.2d 663, 670 (D.C. 28
2009) (en banc) (citing Super. Ct. Crim. R. 24(c)); see Hobbs v. United States, 18
A.3d 796, 800 (D.C. 2011) (“Once jeopardy attaches and jurors begin their duties,
they can no longer be removed for reasons that would meet only the good cause
standard.”).
The trial court here conducted two separate voir dire sessions with the juror,
and, in light of the juror’s representations that they were paying attention, concluded
that it did not “have the evidence” to support a finding that the juror was unqualified
to sit. We decline to substitute our judgment for that of the trial court, given its
“familiarity with the proceedings, its observations of the witnesses and lawyers and
jurors, and its superior opportunity to get a feel for the case.” Samad, 812 A.2d at
230 (citation modified). 12
12 It bears noting, moreover, that with respect to the flight charge, the evidence against Mr. Willis was essentially unrefuted and the question whether Mr. Willis fled or not was straightforward. As to the only remaining conviction, then, we cannot say that any reduced attentiveness by the juror resulted in “substantial prejudice,” Golsun, 592 A.2d at 1058, to Mr. Willis. See Johnson v. United States, 398 A.2d 354, 367 (D.C. 1979) (“[T]he appellate court makes two distinct classes of inquiries when reviewing a trial court’s exercise of discretion. It must determine, first, whether the exercise of discretion was in error and, if so, whether the impact of that error requires reversal. It is when both these inquiries are answered in the affirmative that we hold that the trial court ‘abused’ its discretion.”). 29
III. Conclusion
For the foregoing reasons, we reverse Mr. Willis’s first-degree murder
convictions, affirm Mr. Willis’s conviction for fleeing a law enforcement officer,
and remand this case for further proceedings.
So ordered.