Whether recused judges are excluded from the count of a majority of judges in regular active service for purposes of granting en banc rehearing under D.C. Code § 11-705(d)

QUESTIONS PRESENTED The District of Columbia Court of Appeals voted 4-3 in favor of en banc rehearing in Petitioner’s appeal from a murder conviction. Without explanation, the court treated that vote as a denial of rehearing. Petitioner filed a “Motion for Reconsideration” maintaining that the 4-3 vote was a grant of rehearing under the applicable federal statute. See D.C. Code § 11-705(d) (rehearing upon vote of “a majority of the judges ... in regular active service”); see also 28 U.S.C. § 46(c) (same as to federal circuit courts). After two years, an equally divided court voted 3-3 to deny reconsideration (one of the judges who had voted in favor of rehearing had since taken senior status, without replacement). Three judges found that the original 4-3 vote was not a grant of rehearing because there was one recused judge, and four out of eight is not a majority. App’x C at 3. Three judges found to the contrary, concluding that recused judges are excluded for determining what counts as a “majority of judges ... in regular active service.” /d. at 11; see Fed. R. App. 35(a) (judges “in regular active service and who are not disqualified’). They reasoned that Federal Rule 35(a) is not only a persuasive interpretation of a substantively identical federal statute, 28 U.S.C. § 46(c), but is itself binding on the D.C. Court of Appeals. App’x C at 9-11; D.C. Code § 11-743. The questions presented are: I. Whether the federal statute providing that en banc rehearing is granted upon the vote of “a majority of judges of the court in regular active service,” D.C. Code § 11-705(d), excludes recused judges from the count, as the substantively identical 28 U.S.C. § 46(c) has been decisively interpreted. See Fed. App. R. 35(a). II. Whether Rule 35(a), as amended in 2005 to expressly exclude recused judges from the count, is binding on the D.C. Court of Appeals, which has never “prescribe[d] or adopt[ed]” any modification to that rule in the decades since the amendment. D.C. Code § 11-743. Il. Where a defendant is tried and convicted on an invalid theory of criminal liability, whether an appellate court can “affirm a conviction on the basis of a theory not presented to the jury,” Chiarella v. United States, 445 U.S. 222, 236 (1980). i