Background
In December 2021, Brian C. Carruth drove from Ohio to Washington, D.C., with an unloaded Remington 783 bolt-action rifle locked in a padlocked case in the bed of his pickup truck and loose ammunition stored separately in the cab. Metropolitan Police stopped Carruth after observing the rifle case and, after an initially false denial, he admitted to possessing the weapon. Because Carruth held no D.C. firearm registration, he was charged with carrying a rifle in the District (D.C. Code § 22-4504(a-1)), possession of an unregistered firearm (§ 7-2502.01(a)), and unlawful possession of ammunition (§ 7-2506.01(a)(3)).
At trial, Carruth testified in his own defense, claiming he was merely passing through the District and that the rifle was rendered inoperable by removal of the firing pin and bolt. During the government’s cross-examination, the trial court called a one-hour lunch recess and, over defense objection, ordered Carruth not to “discuss the substance of” his testimony with his attorney during the break. The jury convicted him on all three counts. On appeal, Carruth argued that (1) the evidence was insufficient to support his rifle-carrying conviction, (2) D.C. Code § 22-4504(a-1) is unconstitutional under the Second Amendment, and (3) the mid-testimony no-conferral order violated his Sixth Amendment right to counsel. After briefing, the United States Supreme Court decided Villarreal v. Texas, 607 U.S. 465 (2026), addressing analogous Sixth Amendment questions, prompting supplemental briefing in this case.
Before oral argument, the United States moved to vacate the rifle-carrying conviction under D.C. Code § 17-306, representing that it had adopted a policy of not prosecuting violations of § 22-4504(a-1) due to its view that the statute is unconstitutional under the Second Amendment. Neither Carruth nor the District of Columbia (as intervenor) opposed the motion, though the District maintained that the statute is constitutional. Only the Public Defender Service, participating as amicus curiae, opposed vacatur and urged the court to decide the Second Amendment question on the merits.
The Court’s Holding
The court granted the government’s unopposed motion to vacate Carruth’s rifle-carrying conviction under D.C. Code § 17-306 and remanded for dismissal of that count, expressly declining to reach the merits of the Second Amendment challenge. The court grounded its discretionary vacatur on four factors: the United States’ representation of a settled non-prosecution policy, which the court treated as an expression of prosecutorial discretion entitled to deference; the consensus among all parties that the conviction should be vacated; the complexity of the unsettled Second Amendment question and the possibility that procedural issues would have precluded reaching it; and the principle of judicial restraint counseling against deciding constitutional questions unnecessarily.
On the Sixth Amendment question, the court affirmed Carruth’s remaining convictions for possessing an unregistered firearm and unlawfully possessing ammunition. Applying Villarreal‘s synthesis of Geders v. United States, 425 U.S. 80 (1976), and Perry v. Leeke, 488 U.S. 272 (1989), the court held that the trial court’s order did not violate the Sixth Amendment because it prohibited only consultation about the “substance” of Carruth’s ongoing testimony—i.e., real-time feedback that could shape future testimony in light of what had already been said—which is not constitutionally protected. The court read the trial court’s order narrowly: the prohibition on discussing “the substance of” testimony did not bar Carruth from discussing trial strategy, the availability of other witnesses, or other constitutionally protected topics, and the closing admonition to not discuss “your testimony with anyone” was best understood as a rejection of defense counsel’s sweeping “absolute right” claim rather than a blanket ban on all attorney-client communication.
The court declined to extend constitutional immunity to all no-conferral orders issued during brief daytime recesses, rejecting any purely temporal rule. Instead, consistent with Villarreal, it evaluated the substance of what the order forbade and concluded that on this record the order targeted only unprotected testimony-shaping consultation during a one-hour mid-cross-examination lunch break.
Key Takeaways
- A D.C. appellate court may exercise discretionary authority under D.C. Code § 17-306 to vacate a criminal conviction on the government’s unopposed motion when the prosecution has adopted a policy of non-enforcement based on constitutional concerns, without itself ruling on the underlying constitutional question.
- Under Villarreal v. Texas, a trial court order restricting a testifying defendant’s mid-testimony consultation with counsel survives Sixth Amendment scrutiny when it is limited to prohibiting discussion of the ongoing testimony itself—testimony-shaping feedback—rather than constitutionally protected topics such as trial strategy, plea negotiations, or other matters not aimed at adjusting future testimony in light of past testimony.
- The distinction between permissible and impermissible no-conferral orders turns on the content of what is restricted, not the duration of the recess; a bright-line temporal rule (overnight vs. short break) has been rejected in favor of a content-based analysis.
- Amicus curiae cannot compel a court to reach the merits of a constitutional question that all parties have agreed to resolve on other grounds; the court expressly expressed no view on whether D.C. Code § 22-4504(a-1) is constitutional under the Second Amendment.
Why It Matters
This decision illustrates the growing practice of the U.S. Attorney’s Office in D.C. seeking vacatur of firearms convictions under local registration and carrying statutes it now views as constitutionally suspect in the post-Bruen environment—without forcing appellate courts to resolve the Second Amendment merits. Practitioners representing clients charged under D.C.’s firearms registration framework should monitor the pending en banc proceeding in Benson v. United States (23-CF-0514), which squarely presents the constitutionality of D.C.’s magazine-capacity and registration requirements.
On the Sixth Amendment front, the court’s application of Villarreal offers trial courts and defense counsel clearer guidance: a no-conferral order limited to testimony-shaping communication during a mid-testimony recess will generally pass constitutional muster, but courts must frame such orders in content-specific terms. Blanket orders cutting off all attorney-client communication during any recess—especially an overnight break—remain vulnerable under Geders, and defense counsel who promptly object and make a clear record of what protected topics they sought to discuss preserve stronger appellate arguments.