Appeal Nos. 24-CF-0025, 24-CO-0709 & 25-CO-0315
RANJITH KEERIKKATTIL,
Appellant,
v.
UNITED STATES OF AMERICA,
Appellee.
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Appeal from the Superior Court of the District of Columbia
Criminal Division
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Case No. 2018-CF2-010309
Appellant Ranjith Keerikkattil was represented in the Superior Court by Christopher Mutimer, Esq. (retained counsel, subsequently dismissed by the court) and Albert Amissah, Esq. (appointed counsel). On appeal, Mr. Keerikkattil was initially represented by Joel R. Davidson, Esq., and is now represented by the undersigned counsel, James Kraus, Esq.
Appellee the United States was represented in the Superior Court by Assistant United States Attorneys John Giovannelli, Esq., Rashmika Nedungadi, Esq., and Peter Smith, Esq. The United States is represented on appeal by the Office of the United States Attorney for the District of Columbia.
Adams v. Franklin, 924 A.2d 993 (D.C. 2007) ..................................................................... 44
Allen v. United States, 495 A.2d 1145 (D.C. 1984) (en banc) .................................................... 54
Atchison v. United States, 257 A.3d 524 (D.C. 2021) ............................................................ 52
Bank of Nova Scotia v. United States, 487 U.S. 250 (1988) ...................................................... 44
Barker v. Wingo, 407 U.S. 514 (1972) ................................................................................... 36
Bell v. United States, 676 A.2d 37 (D.C. 1996) ...................................................................... 54
Berger v. United States, 295 U.S. 78 (1935) ........................................................................ 28
Best v. United States, 651 A.2d 790 (D.C. 1994) .................................................................... 26
Bittaker v. Woodford, 331 F.3d 715 (9th Cir. 2003) ............................................................... 32
Blackledge v. Perry, 417 U.S. 21 (1974) ............................................................................... 41
Blockburger v. United States, 284 U.S. 299 (1932) ................................................................ 50
Borum v. United States, 409 F.2d 433 (D.C. Cir. 1967) ........................................................... 54
Boykins v. United States, 856 A.2d 606 (D.C. 2004) ............................................................. 52
Bradley v. District of Columbia, 107 A.3d 586 (D.C. 2015) ................................................. 52
Brown v. United States, 795 A.2d 56 (D.C. 2001) ................................................................. 50
Chapman v. California, 386 U.S. 18 (1967) ............................................................................ 32
Cherdak v. O'Grady, 2022 U.S. Dist. LEXIS 35122 (E.D. Va Feb. 28, 2022) ................... 46
Davis v. United States, 306 A.3d 89 (D.C. 2023) ................................................................. 52
Doggett v. United States, 505 U.S. 647 (1992) ................................................................ 37, 40
Duran v. United States, No. 95-3096, slip op. (D.C. Cir. Oct. 8, 1996) .................................... 35
Evans v. United States, 133 A.3d 988 (D.C. 2016) ................................................................. 34
Farrell v. United States, 391 A.2d 755 (D.C. 1978) ................................................................ 25
Fortson v. United States, 979 A.2d 643 (D.C. 2009) .............................................................. 23
Gamble v. United States, 30 A.3d 161 (D.C. 2011) ................................................................ 25
Hartridge v. United States, 896 A.2d 198 (D.C. 2006) ............................................................ 36
Holmes v. United States, 363 F.2d 281 (D.C. Cir. 1966) ........................................................ 35
In re Grimm, 252 A.3d 486 (D.C. 2021) .................................................................................. 46
In re Public Defender Service, 831 A.2d 890 (D.C. 2003) ................................................ 32, 44
Jackson v. United States, 404 A.2d 911 (D.C. 1999) .............................................................. 34
(James) Jones v. United States, 716 A.2d 160 (D.C. 1998) ..................................................... 48
Johnson v. United States, 290 A.3d 500 (D.C. 2023) .......................................................... 31
(Samuel) Jones v. United States, 828 A.2d 169 (D.C. 2003) ............................................ 28, 31
Jordan v. United States, 235 A.3d 808 (D.C. 2020) ........................................................ 54
Kaley v. United States, 571 U.S. 320 (2014) ........................................................................ 23
Kleinbart v. United States, 426 A.2d 343 (D.C. 1981) ...................................................... 26, 34
Kotteakos v. United States, 328 U.S. 750 (1946) .................................................................... 31
Kyles v. Whitley, 514 U.S. 419 (1995) ................................................................................ 32
Littlejohn v. United States, 749 A.2d 1253 (D.C. 2000) .................................................... 54
Lucas v. United States, 497 A.2d 1070 (D.C. 1985) .............................................................. 34
Monroe v. United States, 389 A.2d 811 (D.C. 1978) .............................................................. 25
Moore v. United States, 285 A.3d 228 (D.C. 2022) ........................................................ 29, 44
Nelson v. United States, 601 A.2d 582 (D.C. 1991) .............................................................. 26
Plummer v. United States, 43 A.3d 260 (D.C. 2012) ........................................................... 32
Portillo v. United States, 62 A.3d 1243 (D.C. 2013) ........................................................ 25, 26
Ransom v. United States, 322 A.3d 521 (D.C. 2024) ........................................................... 31
Ready v. United States, 620 A.2d 233 (D.C. 1993) ................................................................ 55
Richardson v. United States, 927 A.2d 1137 (D.C. 2007) ...................................................... 52
Robinson v. United States, 454 A.2d 810 (D.C. 1982) .......................................................... 54
Roman Catholic Archdiocese of San Juan v. Feliciano, 589 U.S. 57 (2020) .......................... 55
Sanchez-Rengifo v. United States, 815 A.2d 351 (D.C. 2002) .............................................. 50
Shillinger v. Haworth, 70 F.3d 1132 (10th Cir. 1995) .......................................................... 46
Sims v. United States, 213 A.3d 1260 (D.C. 2019) ............................................................ 56
Simms v. United States, 41 A.3d 482 (D.C. 2012) ............................................................ 29, 41
Simpson v. United States, 632 A.2d 374 (D.C. 1993) ............................................................ 46
Smith v. United States, 687 A.2d 581 (D.C. 1996) ................................................................ 54
Stansell v. Revolutionary Armed Forces of Columbia, 771 F.3d 713 (11th Cir. 2014) ........... 55
Strickland v. Washington, 466 U.S. 668 (1984) ................................................................... 25
Tyler v. United States, 705 A.2d 270 (D.C. 1997) (en banc) .................................................. 26
United States v. Edwards, 154 F.3d 915 (9th Cir. 1998) ...................................................... 29
United States v. Gonzalez-Lopez, 548 U.S. 140 (2006) .................................................... 22, 23
United States v. Goodwin, 457 U.S. 368 (1982) .................................................................. 41
United States v. Handa, 892 F.3d 95 (1st Cir. 2018) ...................................................... 39
United States v. Heshelman, 521 F. App’x 501 (6th Cir. 2013) ............................................ 37
United States v. Letterlough, 63 F.3d 332 (4th Cir. 1995) .................................................... 54
United States v. MacDonald, 456 U.S. 1 (1981) ................................................................... 36
United States v. Marion, 404 U.S. 307 (1971) .................................................................... 40
United States v. Marshall, 935 F.2d 1298 (D.C. Cir. 1991) .................................................. 39
United States v. Morrison, 449 U.S. 361 (1981) .................................................................. 46
United States v. Rojas-Contreras, 474 U.S. 231 (1985) ......................................................... 39
United States v. Slatten, 865 F.3d 767 (D.C. Cir. 2017) ....................................................... 42
Upjohn v. United States, 449 U.S. 383 (1981) ...................................................................... 31
Walker v. State, 818 A.2d 1078 (Md. 2003) ......................................................................... 29
Waters v. United States, 302 A.3d 522 (D.C. 2023) .............................................................. 32
Whalen v. United States, 445 U.S. 684 (1980) ...................................................................... 50
Whylie v. United States, 98 A.3d 156 (D.C. 2014) ................................................................ 54
Wilkins v. United States, 137 A.3d 975 (D.C. 2016) ............................................................ 34
Wilson v. United States, 995 A.2d 174 (D.C. 2010) .............................................................. 23
D.C. Code § 11-721(a)(1) ........................................................................................................ 1
D.C. Code § 22-106 ............................................................................................................ 48
D.C. Code § 22-3571.01 ...................................................................................................... 48
D.C. Code § 23-110 .............................................................................................................. 5
D.C. Code § 23-1322 .......................................................................................................... 26
D.C. Code § 23-1322(h) ...................................................................................................... 26
D.C. Code § 23-1327 .................................................................................................... 5, 48
D.C. Code § 23-1327(a) ................................................................................................ 48, 54
D.C. Code § 23-1327(d) ................................................................................................ 17, 54
D.C. Code § 24-403.01(b)(3)(B) .......................................................................................... 52
D.C. Rule of Professional Conduct 1.6 ........................................................................... 11, 46
D.C. Rule of Professional Conduct 3.7 ................................................................................. 28
Superior Court Rule of Criminal Procedure 35 ................................................................. 54
USAM 9-11.255 ............................................................................................................ 14, 44
This Court has jurisdiction over these consolidated appeals pursuant to D.C. Code § 11-721(a)(1), which authorizes appellate review of final orders and judgments of the Superior Court of the District of Columbia in criminal cases. Appellant seeks review of final judgments of conviction and sentencing, as well as post-sentencing orders, entered by the Superior Court, Criminal Division, Felony Branch, in Case No. 2018-CF2-010309. Appellant filed timely notices of appeal from the judgment of conviction entered following a jury trial and from the subsequent amended judgment and resentencing order. By order of this Court, the appeals have been consolidated. Accordingly, this Court has jurisdiction to consider all issues raised in these appeals.
On July 9, 2018, Appellant Ranjith Keerikkattil was found guilty by a jury of one count of misdemeanor stalking in Superior Court case number 2015-CMD-17652 and was released pending sentencing. He signed notices to appear on July 10, 2018, and September 14, 2018. He did not appear on either date, and a bench warrant was issued. On July 11, 2018, a grand jury returned an indictment (hereinafter "original indictment") charging Mr. Keerikkattil with one count of felony Bail Reform Act (BRA) violation under D.C. Code § 23–1327, for the failure to appear on July 10, 2018. Mr. Keerikkattil remained outside the United States until October 2022, when he returned and was arrested. He was held without bond until his sentencing in early 2024.
Mr. Keerikkattil was arraigned on October 4, 2022, represented by retained counsel Christopher Mutimer. On March 3, 2023, the government obtained a superseding indictment charging Mr. Keerikkattil with two separate counts of felony BRA violation, one for the July 10, 2018, non-appearance and one for the September 14, 2018, non-appearance. Around this time, on March 8, 2023, Mr. Mutimer was dismissed from the case, and Albert Amissah was appointed as counsel. Throughout the pretrial proceedings, Appellant, at times proceeding pro se or through counsel, filed numerous motions, including motions to dismiss for speedy trial violations, vindictive prosecution, grand jury misconduct, failure to state an offense, and motions related to attorney representation and the admissibility of evidence. These motions were largely denied by the trial court, the Honorable Judge Heidi M. Pasichow presiding after the case was transferred to her in January 2023. Trial commenced on November 7, 2023. On November 13, 2023, the jury found Appellant guilty of both BRA charges. On January 17, 2024, Appellant was sentenced to one year of incarceration on each count, to run concurrently, followed by three years of supervised release. On July 19, 2024, the trial court resentenced Appellant, determining that the sentence for the two BRA counts must run consecutively. The court resentenced him to one year incarceration on each count to run consecutively, suspended the incarceration sentence on the second count, and placed him on five years of probation for that count (later amended to four years of supervised probation in the final judgment). Appellant filed timely appeals from the conviction and the resentencing, which have been consolidated by this Court.
In July 2018, Appellant Ranjith Keerikkattil was at the concluding stages of a misdemeanor stalking case, 2015-CMD-17652, in the Superior Court of the District of Columbia. On July 9, 2018, following a jury trial before the Honorable Robert Salerno, he was found guilty. Post-verdict, Judge Salerno set release conditions pending sentencing, placing Mr. Keerikkattil in the High-Intensity Supervision Program (HISP), which included GPS monitoring and a curfew. The court clerk provided Mr. Keerikkattil with two separate notices requiring his return to court: the first for July 10, 2018, at 9:30 a.m., for the explicit purpose of being "placed in the High-Intensity Supervision Program," and the second for September 14, 2018, at 10:00 a.m., for his sentencing hearing. The clerk orally administered the standard warning for failure to appear, stating, "you subject yourself to a fine of $12,500, five years in jail, or both, simply for failing to appear." When asked if he understood, Mr. Keerikkattil replied, "Yes." He signed both notices.
Appellant did not appear on July 10, 2018. After confirming he was not at Pretrial Services, Judge Salerno issued an extraditable, no-bond bench warrant. He also failed to appear on September 14, 2018. The day after the first missed appearance, on July 11, 2018, the government secured an indictment from the grand jury, charging Mr. Keerikkattil with a single count of felony Bail Reform Act (BRA) violation for the alleged failure to appear on July 10. At the time of the indictment, Mr. Keerikkattil was already abroad, having boarded an international flight to Iceland on the night of July 9, 2018.
Mr. Keerikkattil remained outside the United States from July 2018 until October 2022. During this period, the government was aware of its duty to seek extradition. Indeed, on September 14, 2018, a mere two months after the original indictment, Assistant United States Attorney (AUSA) John Giovannelli stated on the record that "our office is working on extradition." AUSA Giovannelli also indicated at that time that Appellant was believed to be in India, a country with an extradition treaty with the United States. Despite this early representation to the court, the government made no apparent efforts to locate Appellant or pursue extradition for over two years.
By November 2020, the government possessed concrete information that Mr. Keerikkattil was residing in Australia. Specifically, on November 25, 2020, the Department of Justice Office of International Affairs (OIA) explicitly communicated to the U.S. Mission in Australia that the OIA had "no intent to seek the defendant's extradition." This decision was made despite the existence of a valid extradition treaty with Australia, under which the U.S. had successfully extradited other individuals in 2021 and 2022. Furthermore, the government failed to promptly issue an INTERPOL Red Notice, which Appellant contends would have likely led to his arrest much earlier, given his extensive international travel to multiple countries with extradition treaties, using his U.S. Passport. Appellant lived openly under his own name while in Australia. The government's inaction persisted until Mr. Keerikkattil voluntarily returned to the United States in October 2022, at which point he was arrested. The U.S. Passport belonging to Appellant, which he argued contained evidence of his travel to extraditable countries and thus would have supported his claim regarding the government's failure to issue an INTERPOL notice, was subsequently destroyed by the Department of State, despite requests to preserve it for trial.
The Honorable Heidi M. Pasichow assumed responsibility for this case in January 2023. (1/4/23 Tr. at 1). Early in the Court’s involvement, on March 8, 2023, the Court entered an order that had the effect of dismissing the Defendant’s privately retained counsel of choice, Mr. Christopher Mutimer. This dismissal occurred sua sponte, as the Defendant had not requested Mr. Mutimer’s removal and, in fact, filed a subsequent motion seeking to amend the order and reinstate his chosen counsel. This action, taken over the Defendant’s express objection, established a contentious tone early in the proceedings.
Following Mr. Mutimer's dismissal, Albert Amissah was appointed as counsel for Mr. Keerikkattil on March 17, 2023. Over the ensuing months, Mr. Keerikkattil expressed significant dissatisfaction with Mr. Amissah's representation, culminating in the filing of a "DEFENDANT'S MOTION FOR A MONROE-FARRELL HEARING" and a "DEFENDANT'S MOTION TO SUBSTITUTE COUNSEL." Appellant alleged numerous deficiencies in Mr. Amissah's performance, including: a persistent failure to identify and retain expert witnesses for approximately six months, despite multiple trial continuances granted for this purpose; mismanagement of his calendar, leading to a further trial continuance of over 70 days; failure to file a motion to suppress FERPA-protected university records; failure to visit Appellant at the Correctional Treatment Facility (CTF) for months to review discovery materials; failure to adopt or supplement Appellant's pro se motions to dismiss the indictments; and failure to competently argue for pretrial release by omitting critical arguments, such as the lack of a statutorily compliant detention hearing under D.C. Code § 23-1322. Furthermore, after the trial, Mr. Amissah filed a "Preliminary Motion for New Trial Pursuant to Superior Court Criminal Rule 33," in which he stated he would amend the request upon receipt of trial transcripts. To date, this preliminary motion has not been supplemented.
The trial court was aware of these complaints. On July 21, 2023, the court noted Appellant's pro se motions but stated she would not consider them as he was represented by counsel, encouraging counsel to incorporate any relevant items. At this hearing, Mr. Amissah reiterated his difficulty in finding an expert, and the trial judge questioned the relevance of such testimony given the passage of time since the alleged offense. Later, on October 20, 2023, Mr. Amissah's motion to withdraw was a principal topic, with Mr. Keerikkattil reiterating the failure to obtain an expert and file requested motions. The judge maintained her stance on pro se filings and gave Appellant the choice of proceeding with Mr. Amissah or representing himself. On October 26, 2023, the court denied Mr. Amissah's motion to withdraw, and Mr. Keerikkattil agreed to proceed to trial with him.
A central piece of evidence in this case was an email dated July 10, 2018, purportedly sent by Mr. Keerikkattil to his then-counsel in the misdemeanor stalking case, Bernard Grimm (hereinafter "the July 10 email" or "Government Exhibit 8"). Almost immediately after receiving this email, Mr. Grimm, without Mr. Keerikkattil's knowledge or permission, transmitted this privileged communication directly to AUSA John Giovannelli. This act by Mr. Grimm constituted a violation of D.C. Rule of Professional Conduct 1.6. The government, through AUSA Giovannelli, then utilized this still-privileged email extensively. It was presented to the grand jury to secure the original indictment in July 2018 and again, in redacted form, to secure the superseding indictment in March 2023. The government also attached the email to various pretrial filings.
The admissibility of this email was heavily contested. As early as November 2022, the prosecution indicated its intent to use the email at trial, arguing it fell under the crime-fraud exception to the attorney-client privilege. The defense opposed this. The matter remained unresolved for nearly a year while the government continued its pretrial use of the email. Days before trial, on November 1, 2023, the government filed a notice of intent to use the email, now arguing that Mr. Keerikkattil had waived any attorney-client privilege by attaching the email to a pro se filing he made in July 2023 in reply to the government's opposition to his motion for pretrial release. The defense filed a motion in limine to exclude the email, asserting ongoing privilege and the impropriety of the government's prior uses.
On November 7 and 8, 2023, just before and at the start of trial, the trial judge addressed the admissibility of Government Exhibit 8. The judge ruled that the crime-fraud exception did not apply to the communication. However, the judge found that Mr. Keerikkattil had waived the attorney-client privilege by his July 2023 pro se filing, stating he had sent "all of this information all over the place" and that whatever he sent to the Court became part of the record. Defense counsel argued that there was no valid waiver because the government had already improperly used the email in grand jury proceedings and court filings long before Mr. Keerikkattil's July 2023 filing. The trial judge rejected this argument. The defense later filed an emergency motion to strike testimony regarding the email, which was also denied.
The source of Government Exhibit 8, Bernard Grimm, was not a neutral third party but a disbarred attorney with a documented history of financial malfeasance, client intimidation, and abuse of the judicial process. This pattern provides a powerful lens through which to evaluate the origins and authenticity of the government's key evidence.
The circumstances surrounding Mr. Grimm's law practice at the time of the events in question reveal a firm in a state of profound financial distress, creating a clear motive for actions that would otherwise be inexplicable. Between 2016 and 2020, Mr. Grimm's office manager, Katherine Ross, engaged in a systematic embezzlement scheme, stealing at least $320,000, and potentially over $725,000, from the firm's accounts. Critically, these funds were taken not only from the operating account but also from the Interest on Lawyer Trust Account (IOLTA), which holds client funds. This massive theft created an environment of extreme financial instability and potential liability for Mr. Grimm.
During this same period of internal financial chaos, Mr. Grimm faced mounting pressure from clients questioning his billing practices. In one notable instance, client Ashley Furst, who had wired $350,000 into the firm's trust account for restitution in her criminal case, was left with an unaccounted-for balance of $24,800. When she sought an accounting, Mr. Grimm was "rude and dismissive," claiming the funds had been "used up" on post-sentencing work not covered by their retainer agreement, a claim Ms. Furst disputed. Similarly, Appellant Ranjith Keerikkattil alleges that he was questioning Mr. Grimm about "tens of thousands of dollars" paid to the firm. On the eve of Mr. Keerikkattil's trial in June 2018, Mr. Grimm sent an email demanding, "Need a check today," copying the same office manager who was embezzling from the firm.
This convergence of internal embezzlement and external client pressure provides a compelling motive for Mr. Grimm's decision to disclose a privileged client communication to AUSA Giovannelli. A client like Mr. Keerikkattil, actively questioning the firm's finances, represented a direct threat of exposing the firm's precarious and potentially fraudulent financial state. By instigating a new felony prosecution against his own client, Mr. Grimm could achieve two self-serving goals: first, to silence, discredit, and intimidate a client who was asking inconvenient financial questions; and second, to create a new, billable felony case to generate much-needed revenue for his financially distressed firm. This context transforms the narrative from one of simple professional misconduct into a plausible theory of witness tampering and obstruction motivated by financial desperation.
Mr. Grimm's actions against Appellant Keerikkattil were not an isolated incident but were consistent with a documented playbook for retaliating against clients who challenged his authority or fees. The cases of Erik Cherdak and Ashley Furst reveal a clear and repeatable modus operandi. In the case of Erik Cherdak, who was in a fee dispute with Mr. Grimm, Mr. Grimm allegedly weaponized the judicial process in an attempt to intimidate his former client. He is alleged to have fabricated a draft affidavit for a federal judge, the Honorable Liam O'Grady, to sign for the purpose of "endorsing a criminal investigation" against Mr. Cherdak. He coupled this with threatening emails that invoked the "crime-fraud exemption" and text messages claiming the judge was "willing to write a letter and cooperate with the criminal investigation".
In the case of Ashley Furst, after his representation had concluded and a fee dispute had commenced, Mr. Grimm issued fraudulent subpoenas under the letterhead of Ms. Furst's closed criminal case. These subpoenas, which contained misspellings including the judge's name, were sent to Ms. Furst's university and bank, seeking personal and financial information that Mr. Grimm intended to use for his own defense in their fee arbitration hearing. Both Ms. Furst and Mr. Keerikkattil describe Mr. Grimm's demeanor as threatening and intimidating when they questioned his conduct and billing. This pattern of behavior—weaponizing the judicial system, fabricating or misusing official-looking documents, and using the threat of criminal investigation as leverage—constitutes a clear operational playbook. Mr. Grimm's alleged actions against Mr. Keerikkattil, disclosing a privileged client communication to a prosecutor to initiate felony charges, fit this pattern perfectly. This evidence directly rebuts any potential claim that the disclosure was an inadvertent mistake and strongly supports the argument that it was an intentional, malicious act of collusion.
AUSA John Giovannelli's conduct is implicated in several key aspects of this case. As the recipient of the July 10 email from Bernard Grimm, AUSA Giovannelli was personally involved in the discovery and handling of this critical piece of evidence. Appellant moved to disqualify AUSA Giovannelli, arguing that his role in receiving and proffering the email, whose authenticity and chain of custody were effectively vouched for by his prosecutorial position, violated the advocate-witness rule and the rule against improper vouching. Given that Mr. Grimm was disbarred and unlikely to testify, Appellant argued AUSA Giovannelli became the "silent witness" for the email's reliability.
Furthermore, Appellant alleged that the superseding indictment, which added a second BRA count nearly five years after the original offense and shortly after Appellant filed a motion to dismiss for speedy trial violations criticizing AUSA Giovannelli's failure to pursue extradition, was an act of vindictive prosecution. Appellant pointed to AUSA Giovannelli's alleged personal animus, citing statements where Giovannelli purportedly referred to Appellant's misdemeanor case as justifying a "homicide prosecutor" and, in an email to a U.S. Marshal, allegedly stated Appellant was worse than "murderers [he] deals with on a regular basis." The timing of the superseding indictment, following directly on the heels of Appellant's motion that was critical of AUSA Giovannelli, suggests a retaliatory motive rather than a benign prosecutorial decision, especially since the facts underlying the second BRA count were known to the government since 2018.
The government presented the July 10 email to the grand jury that returned the original indictment in July 2018, and a redacted version of the same email to the grand jury that returned the superseding indictment in February/March 2023. Crucially, these presentations occurred before the trial court had made any ruling on whether the crime-fraud exception applied to the email or whether Appellant had waived the attorney-client privilege. The trial court later explicitly ruled that the crime-fraud exception did not apply. Appellant alleged that this premature presentation of privileged material constituted grand jury misconduct. He argued that the government failed to follow its own internal guidelines, specifically USAM 9-11.255, which requires prior approval from the Assistant Attorney General of the Criminal Division before issuing a grand jury subpoena to an attorney for information relating to client representation. Moreover, by presenting the email before a judicial determination of its privileged status, the government allegedly circumvented the court's supervisory role and deprived Appellant of the opportunity to challenge the disclosure before the grand jury. The introduction of this highly inculpatory (and ultimately privileged) email directly to the grand jurors likely had a substantial influence on their decision to indict, particularly concerning the element of willfulness.
Appellant made a written request for a bifurcated trial, which was denied by the trial court. The defense intended to argue that Appellant's mental health issues, including ADHD, PTSD, bipolar disorder, and sleep apnea, impacted his memory and his ability to form the "willful" intent required for a BRA conviction. The denial of bifurcation forced Appellant to present evidence of his mental state alongside the factual evidence of his non-appearance, creating a risk of prejudice. During the trial, the July 10 email (Government Exhibit 8) was admitted into evidence over defense objection, following the court's ruling that Appellant had waived the attorney-client privilege. The prosecution heavily relied on this email in its opening statement and closing argument, portraying it as direct evidence of Appellant's deliberate intent to miss his court dates. Mr. Keerikkattil testified in his own defense, stating he had difficulties with recollection, relied on devices for scheduling, had a poor relationship with Mr. Grimm, and did not recall sending the July 10 email. He also testified about his fear of Mr. Grimm due to alleged physical threats.
On January 17, 2024, the Court conducted a sentencing hearing during which it made a series of remarks that revealed a deep-seated personal frustration and animus toward the Defendant. The Court characterized the Defendant as “absolutely prolific” in his legal filings and stated, "the only person who thinks he knows more than anybody else in this entire process is your client”. (1/17/24 Tr. at 14, 16). Most critically, the Court unequivocally rejected the imposition of probation, stating, “there's no reason for him to be on active probation. None.” (1/17/24 Tr. at 38). No probation was imposed. (1/17/24 Tr. at 53).
On February 27, 2024, the Defendant, acting pro se, filed a Petition for a Writ of Mandamus with the D.C. Court of Appeals, naming Judge Pasichow as the respondent. Nearly four months later, on June 21, 2024, the Court, on its own initiative, declared its January sentence illegal and scheduled a resentencing. (6/21/24 Tr. at 2). On July 19, 2024, the Court imposed a new, substantively harsher sentence that included a four-year term of supervised probation (7/19/24 Tr. at 13), a sanction it had explicitly rejected just months earlier.
This appeal presents a case marred by a cascade of fundamental errors, from the pretrial deprivation of counsel of choice to a vindictive and illegal post-trial increase in sentence. Each error, standing alone, warrants reversal; cumulatively, they paint a picture of a prosecution that was fundamentally unfair and a trial that failed to adhere to the basic tenets of due process.
First, the trial court committed structural error by sua sponte dismissing Appellant’s chosen, retained counsel without cause and over his express objection. This violation of the Sixth Amendment right to counsel of choice requires automatic reversal without any showing of prejudice.
Second, when Appellant raised specific and substantial claims of ineffective assistance against his subsequent appointed counsel, the trial court failed to conduct the probing inquiry required by Monroe v. United States and its progeny. This failure left Appellant to proceed to trial with counsel whose preparedness and effectiveness were in serious doubt, violating his right to a constitutionally adequate defense.
Third, the trial itself was tainted by the improper admission of Government Exhibit 8, a privileged email that formed the cornerstone of the government’s case on willfulness. The email was obtained through a breach of privilege by Appellant’s disbarred former counsel, Bernard Grimm, a man with a documented history of fabricating evidence and extorting clients. The government failed to authenticate this unreliable evidence through any forensic means, yet the prosecutor, who was the direct recipient of the email, was allowed to act as an "advocate-witness," implicitly vouching for its integrity. The court’s finding that Appellant waived the privilege was erroneous, as it ignored the government’s own prior, repeated, and improper use of the communication.
Fourth, the government’s conduct throughout the case was improper. It violated Appellant’s speedy trial rights by failing to pursue extradition for over four years despite knowing his whereabouts. It then brought a vindictive superseding indictment, doubling the charges against Appellant only after he asserted his rights. The government also committed misconduct by presenting the privileged email to the grand jury before any judicial ruling on its admissibility, thereby tainting the indictment from its inception.
Fifth, the indictment itself was legally flawed. It improperly charged Appellant with felonies for failing to appear in a misdemeanor case, contrary to a plain reading of the controlling statute. It was also multiplicitous, violating the Double Jeopardy Clause by charging two separate offenses for what was a single, continuous act of non-appearance.
Finally, the sentencing process was riddled with error. The court initially imposed a term of supervised release based on a mistaken belief that it was mandatory and without any penological justification. Then, more than six months later and well outside its jurisdictional time limit, the court sua sponte resentenced Appellant to a significantly harsher term, adding a lengthy period of probation that it had explicitly rejected at the first sentencing. This belated increase violated the jurisdictional limits of Rule 35 and Appellant’s due process right to finality in his sentence.
For these reasons, the convictions must be reversed and the indictment dismissed. In the alternative, the convictions must be vacated and the case remanded for a new trial, and that the illegal sentence must be vacated.
Whether a defendant has been erroneously deprived of his Sixth Amendment right to counsel of choice is a question of law reviewed de novo. See Freeman v. United States, 971 A.2d 188, 193 (D.C. 2009). The erroneous deprivation of counsel of choice is a structural error. United States v. Gonzalez-Lopez, 548 U.S. 140, 150 (2006). Structural errors are not subject to harmless error analysis and require automatic reversal.
The Sixth Amendment to the United States Constitution guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right... to have the Assistance of Counsel for his defence." This guarantee encompasses not only the right to effective representation but also, for a defendant who does not require appointed counsel, "the right... to choose who will represent him." Gonzalez-Lopez, 548 U.S. at 144; accord Wilson v. United States, 995 A.2d 174, 180 (D.C. 2010). The erroneous deprivation of a defendant's Sixth Amendment right to counsel of choice is a "structural defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself." Gonzalez-Lopez, 548 U.S. at 148. Consequently, such an error is "not subject to harmless-error analysis" and mandates reversal of the conviction. Id. at 148, 150; Freeman, 971 A.2d at 194.
In the instant case, Appellant Ranjith Keerikkattil was erroneously deprived of his retained counsel of choice, Christopher Mutimer. Mr. Keerikkattil had entered into a fixed-fee retainer agreement with Mr. Mutimer and Scrofano Law P.C. for representation in this matter. Despite this established attorney-client relationship, the trial court, on March 8, 2023, dismissed Mr. Mutimer from the case. This dismissal occurred when the court was addressing Appellant's request for the appointment of a CJA co-counsel to replace Mr. Mutimer's former associate, Neveen Hammad, who had resigned from the firm. Instead of appointing co-counsel to assist Mr. Mutimer or clarifying Ms. Hammad's status, the court dismissed Mr. Mutimer, the lead retained counsel. This dismissal was effectively sua sponte, as neither Appellant nor Mr. Mutimer requested it. To the contrary, Appellant explicitly stated in a subsequent motion to amend the court's order that he did not seek Mr. Mutimer's dismissal. Mr. Mutimer himself confirmed that he did not withdraw and, in fact, blamed the trial court and Appellant for his dismissal, an assertion Appellant refutes regarding his own involvement.
The right to counsel of choice, while fundamental, is not absolute. A court may deny a defendant his chosen counsel in certain circumstances, such as when the defendant cannot afford the counsel, the chosen counsel is not a member of the bar, the counsel has an impermissible conflict of interest, or when the "demands of the calendar" necessitate it. See Kaley v. United States, 571 U.S. 320, 345 (2014); Gonzalez-Lopez, 548 U.S. at 152. However, none of these recognized exceptions justified Mr. Mutimer's dismissal. Mr. Mutimer was a member of the D.C. Bar, and his flat fee had been prepaid by Appellant, negating any issue of affordability. There was no indication of any conflict of interest that would require his dismissal in this Bail Reform Act case, where Appellant was the sole defendant. Nor could the dismissal be justified by the "demands of the calendar"; the trial date of June 5, 2023, had been scheduled based on Mr. Mutimer's availability, as stated on January 4, 2023.
A court "may not unreasonably interfere with the accused's choice of counsel because the selection of an attorney is often the most important decision a defendant makes in shaping his defense." Fortson v. United States, 979 A.2d 643, 650 (D.C. 2009) (internal citations and quotations omitted). The trial court's sua sponte dismissal of Mr. Mutimer, without valid grounds and contrary to Appellant's desire to continue with his retained counsel, constituted such an unreasonable interference. The consequences of this structural error were not merely abstract. At the time of his dismissal, Mr. Mutimer was actively working on critical aspects of Appellant's defense, including efforts to retain a neuropsychiatry expert, Dr. Richard Restak, to address Appellant's mental state, which was central to the "willfulness" element of the BRA charges. The abrupt removal of chosen counsel disrupted this vital defense preparation. This disruption is particularly significant because the subsequent appointed counsel, Mr. Amissah, is alleged to have failed to secure such expert testimony, forming the basis for a separate claim of ineffective assistance and Appellant's request for a Monroe-Farrell hearing. Thus, the initial structural error of dismissing Mr. Mutimer may have directly contributed to subsequent prejudicial deficiencies in Appellant's representation.
While prejudice is not required for reversal due to a structural error involving counsel of choice, the tangible negative impact on defense preparation underscores the gravity of the court's error. Because the trial court erroneously deprived Mr. Keerikkattil of his Sixth Amendment right to be represented by his chosen retained counsel, Christopher Mutimer, a structural error occurred. This error mandates reversal of Appellant's convictions without any inquiry into prejudice.
This Court reviews a trial court's handling of a pretrial claim of ineffective assistance of counsel, including the adequacy of a Monroe-Farrell inquiry, for abuse of discretion. See Portillo v. United States, 62 A.3d 1243, 1252 (D.C. 2013); Gamble v. United States, 30 A.3d 161, 165 (D.C. 2011). However, the failure to conduct any inquiry, or an inquiry that is patently inadequate in the face of specific and substantial allegations, can constitute such an abuse.
When a criminal defendant makes a pretrial allegation that defense counsel is unable to render reasonably effective assistance due to lack of preparation or other substantial reasons, the Sixth Amendment imposes an affirmative duty upon the trial court to conduct an inquiry into the complaint. Monroe v. United States, 389 A.2d 811, 819-20 (D.C. 1978); Farrell v. United States, 391 A.2d 755, 760-61 (D.C. 1978). This constitutionally mandated inquiry, known as a Monroe-Farrell inquiry, must be "sufficient to determine the truth and scope of the defendant's allegations." Monroe, 389 A.2d at 820; see also Portillo, 62 A.3d at 1251-52. A trial court's perfunctory dismissal of such claims or reliance on its general assessment of counsel's competence, without a specific inquiry into the defendant's particular allegations for that specific case, is insufficient to satisfy this constitutional duty. See Portillo, 62 A.3d at 1253 (quoting Nelson v. United States, 601 A.2d 582, 592 (D.C. 1991)).
In this case, Appellant Ranjith Keerikkattil, through his "DEFENDANT'S MOTION FOR A MONROE-FARRELL HEARING," presented the trial court with numerous specific and substantial allegations concerning the deficient performance of his appointed counsel, Albert Amissah. These allegations were not vague or conclusory; they detailed a pattern of inaction directly impacting critical aspects of his defense preparation. The allegations included:
These detailed allegations squarely triggered the trial court's duty to conduct a Monroe-Farrell inquiry. As this Court has emphasized, "'adequate preparation by and consultation with counsel' may be a 'more important element in effective assistance of counsel to which a defendant is entitled than the skill exhibited in the courtroom.'" Portillo, 62 A.3d at 1252 (internal quotations omitted). Appellant's motion painted a clear picture of a breakdown in both preparation and consultation.
Despite these serious allegations, the trial court's response was inadequate. There is no indication that the court conducted the kind of "probing and specific questioning of defense counsel" and, if necessary, of Appellant, that Monroe contemplates to ascertain the validity and scope of the ineffectiveness claims. See Monroe, 389 A.2d at 821. For instance, the court questioned the relevance of expert mental health testimony due to the passage of time, rather than inquiring into why counsel had failed for so long to secure an expert whose testimony counsel himself deemed critical. This approach falls short of the "affirmative duty to inquire".
Because Appellant made substantial pretrial allegations of ineffective assistance of counsel, and the trial court failed to conduct an adequate Monroe-Farrell inquiry into these claims, his convictions must be vacated and the case remanded. See Portillo, 62 A.3d at 1248.
Whether a prosecutor should have been disqualified under the advocate-witness rule or for improper vouching involves the application of legal principles and ethical rules, which this Court reviews de novo, while underlying factual findings by the trial court are reviewed for clear error. See, e.g., (Samuel) Jones v. United States, 828 A.2d 169, 174 (D.C. 2003). Violations of these rules that affect the fairness of the trial require reversal.
The integrity of a criminal trial is paramount, and rules exist to prevent situations where the roles of advocate and witness become blurred, or where the prosecutor improperly uses the prestige of their office to influence the jury. In this case, the trial court erred by permitting AUSA John Giovannelli to prosecute the case despite his direct involvement in the acquisition and authentication of a critical piece of evidence—the July 10 email (Government Exhibit 8)—thereby violating both the advocate-witness rule and the prohibition against improper prosecutorial vouching.
D.C. Rule of Professional Conduct 3.7(a) provides that "[a] lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness," subject to limited exceptions not applicable here. The rule is designed to prevent prejudice that can arise when an attorney assumes dual roles. As Comment to Rule 3.7 explains, "[a] witness is required to testify on the basis of personal knowledge, while an advocate is expected to explain and comment on evidence given by others. It may not be clear whether a statement by an advocate-witness should be taken as proof or as an analysis of the proof".
AUSA Giovannelli was the direct recipient of the July 10 email from Appellant's former counsel, Bernard Grimm. The government designated this email as "a critical piece of evidence for its case". Given Mr. Grimm's disbarment and the likelihood that his testimony would be inadmissible or highly impeachable (see Moore v. United States, 285 A.3d 228, 252 (D.C. 2022)), AUSA Giovannelli effectively became a necessary witness to the email's provenance and integrity. His personal involvement in obtaining the email and his subsequent role in arguing for its admission meant that he was, in essence, testifying to its authenticity and the circumstances of its acquisition without being subject to cross-examination.
Improper vouching occurs when a prosecutor enhances a witness's credibility or implies knowledge of facts not in evidence. "When a prosecutor is personally involved in the discovery of a critical piece of evidence, when that fact is made evident to the jury, and when the reliability of the circumstances surrounding the discovery of the evidence is at issue, the prosecutor's participation in the trial of the defendant constitutes a form of improper vouching." United States v. Edwards, 154 F.3d 915, 923 (9th Cir. 1998). By remaining as trial counsel, AUSA Giovannelli's presence and argument implicitly vouched for the email's legitimacy, abusing "the prestige and prominence of the prosecutor's office to unduly influence the factfinder". This created a situation where the defense could not effectively challenge the email's provenance without AUSA Giovannelli himself becoming the subject of inquiry, a role incompatible with that of an objective prosecutor.
The trial court's failure to disqualify AUSA Giovannelli under these circumstances requires reversal.
This Court reviews a trial court's factual findings regarding claims of attorney-client privilege for clear error, but its legal conclusions regarding the privilege and its waiver are reviewed de novo. (Samuel) Jones, 828 A.2d at 174. The trial court’s decision to admit evidence over an authenticity objection is reviewed for abuse of discretion. See Ransom v. United States, 322 A.3d 521, 527 (D.C. 2024). The erroneous admission of evidence requires reversal if it is not harmless. See Kotteakos v. United States, 328 U.S. 750, 764-65 (1946).
“Evidence must be relevant to be admissible” (Johnson v. United States, 290 A.3d 500, 509 (D.C. 2023)). A key component of relevance is authenticity—the requirement that the proponent of an item of evidence must produce evidence “sufficient to support a finding that the item is what the proponent claims it is” (Id.). While the proponent need not establish authenticity with certainty, they must show a “reasonable possibility that the evidence is what it purports to be” (Ransom v. United States, 322 A.3d 521, 527 (D.C. 2024)). This standard, while not a high bar, requires the trial court to act as a gatekeeper to ensure a “satisfactory foundation” has been laid from which a fact-finder “could reasonably find that the evidence is authentic” (Ransom, 322 A.3d at 527-28). The trial court’s decision to admit evidence is reviewed for abuse of discretion (Id.). As the D.C. Court of Appeals has recently affirmed in the context of digital evidence, where the foundation for authenticity is critically flawed—either because the source is unreliable or because there is a lack of corroborating evidence—it is an abuse of discretion to admit the evidence (Id.).
The government cannot meet its burden to authenticate the Grimm email. The email’s source is a disbarred attorney with a documented pattern of professional misconduct, including financial malfeasance, client intimidation, and the fabrication of legal documents. The government failed to take any steps to corroborate the email’s integrity, such as performing a forensic analysis or even securing the original electronic file from its corrupt source. Recent, binding precedent from the D.C. Court of Appeals in Ransom v. United States and Johnson v. United States directly addresses the inadmissibility of uncorroborated electronic evidence from unreliable sources and compels the exclusion of the Grimm email.
The government’s entire foundation for the Grimm email rests on the credibility of its source. That source, Bernard Grimm, is not merely a witness with a prior conviction; he is a disbarred attorney with a documented history of profound professional misconduct that establishes both a clear motive to fabricate the evidence in question and a modus operandi of doing so. The circumstances surrounding Mr. Grimm's law practice reveal a firm in profound financial distress, creating a powerful motive for him to collude with the government against his own client. Between 2016 and 2020, Mr. Grimm's office manager engaged in a massive embezzlement scheme, stealing at least $320,000 from the firm’s accounts, including from the Interest on Lawyer Trust Account (IOLTA). During this same period, Mr. Grimm faced mounting pressure from clients, including the Defendant, who were questioning his billing practices. This convergence of internal embezzlement and external client pressure provided a compelling motive for Mr. Grimm to disclose a privileged communication to AUSA Giovannelli. By instigating a new felony prosecution against his own client, Mr. Grimm could silence an inconvenient voice and create a new, billable felony case. This context transforms the disclosure from an ethical lapse into a malicious act of witness tampering motivated by financial desperation.
The D.C. Court of Appeals has recently provided clear guidance on the authentication of electronic evidence, establishing that the reliability of the source and the presence of corroborating evidence are critical to admissibility. In Ransom v. United States, the Court of Appeals held that the trial court abused its discretion by admitting a video clip into evidence because the authenticating witness was unreliable and the government “introduced no evidence about how or when Exhibit 7 was created” (Ransom, 322 A.3d at 528). The source of the email in this case—Bernard Grimm—is exponentially more unreliable than the witness in Ransom. Just as the Ransom court found it was an abuse of discretion to admit a video based on a flawed witness without any evidence of its creation, it would be a grave error to admit an easily alterable email based solely on its receipt from a demonstrably corrupt and unreliable source.
Similarly, in Johnson v. United States, the Court of Appeals affirmed the admission of Instagram records only because the government provided substantial, independent corroboration of their authenticity, including testimony from a custodian of records who verified the account was linked to the defendant’s specific email and cell phone number (Johnson, 290 A.3d at 506-07). Johnson establishes the clear requirement for extrinsic, corroborating evidence to authenticate digital communications. The government has failed entirely to meet this standard. It has not conducted a forensic analysis of the email’s metadata, traced its path through internet servers, or verified its integrity through authentication protocols like DKIM and SPF. The government’s foundation here is the polar opposite of the robust, verified foundation laid in Johnson. It rests on nothing more than the uncorroborated assertion of a prosecutor who received the evidence from a compromised source. Under the controlling precedent of Ransom and Johnson, this is legally insufficient.
The government’s failure to authenticate the Grimm email is a complete dereliction of its duty to establish a proper evidentiary foundation. A forwarded email is not a static document; its text, subject, and date can be seamlessly edited. Faced with this high potential for alteration and a source known for fabrication, the government had a heightened duty to verify the email’s authenticity through well-established forensic steps, all of which it ignored:
Even if the email were authentic, it was privileged. The attorney-client privilege is a cornerstone of our legal system. Upjohn v. United States, 449 U.S. 383, 389 (1981). The trial court correctly ruled that the narrow crime-fraud exception did not apply. See In re Public Defender Service, 831 A.2d 890, 901-02 (D.C. 2003). Despite this, the trial court erred in finding that Appellant waived the privilege by attaching the email to a pro se filing in July 2023.
This finding was erroneous because, long before Appellant's pro se filing, the government had repeatedly and improperly placed this privileged communication into the public sphere. Mr. Grimm breached the privilege by transmitting the email to AUSA Giovannelli in July 2018. The government then used this privileged email to secure two indictments and attached it as an exhibit to various pretrial motions. By the time Appellant attached the email to his own filing, its confidentiality had already been eviscerated by the government's own repeated, improper disclosures.
This Court's decision in Waters v. United States, 302 A.3d 522 (D.C. 2023), is dispositive. In Waters, this Court, relying on Bittaker v. Woodford, 331 F.3d 715 (9th Cir. 2003) (en banc), emphasized that a waiver of privilege is not a "blanket waiver" for all purposes; its scope is defined by fairness. Waters, 302 A.3d at 534. The fairness principle dictates that Appellant's July 2023 disclosure, made in a pro se attempt to respond to government arguments that were themselves reliant on the improperly obtained email, should not operate as a universal waiver. To hold otherwise would allow the government to benefit from its own prior misconduct. Appellant was placed in a "Catch-22": allow the government's unchallenged use of the privileged email, or attempt to contextualize it and thereby risk "waiving" the privilege for trial. This is the type of unfair choice that Waters and Bittaker guard against.
The admission of Government Exhibit 8 was not harmless. The email was the linchpin of the government's case on willfulness. Without this email, Appellant's testimony regarding his confusion, poor memory, and mental health issues might have created a reasonable doubt. See Kyles v. Whitley, 514 U.S. 419, 434-35 (1995). Given its centrality, its erroneous admission cannot be deemed harmless under Chapman v. California, 386 U.S. 18 (1967). The trial court's decision violated Appellant's rights and fundamentally tainted the trial, requiring reversal.
A trial court's decision on a motion to bifurcate a trial is reviewed for abuse of discretion. Jackson v. United States, 404 A.2d 911, 925 (D.C. 1979); Lucas v. United States, 497 A.2d 1070, 1072-73 (D.C. 1985). An abuse of discretion occurs if the defendant demonstrates a "substantial claim" for bifurcation due to potential prejudice. Kleinbart, 426 A.2d at 354.
A bifurcated trial is a procedural safeguard to mitigate prejudice when evidence relevant to one defense might improperly influence the jury's consideration of another. Jackson, 404 A.2d at 925. Appellant made a written request for a bifurcated trial, which the trial court erroneously denied. This denial was an abuse of discretion because Appellant presented a substantial claim for bifurcation based on his defense to the Bail Reform Act (BRA) charges.
The central contested issue was "willfulness." Appellant's defense was that his mental health conditions, including ADHD, PTSD, bipolar disorder, and sleep apnea, affected his memory and rendered him unable to form the requisite willful intent. This defense is recognized in D.C. case law as a "persuasive defense to the willfulness element" of a BRA charge. See Wilkins v. United States, 137 A.3d 975, 982 (D.C. 2016) (sleep disorder); Evans v. United States, 133 A.3d 988, 992-93 (D.C. 2016) (memory problems).
Presenting this complex mental health evidence in a unitary trial created a significant risk of prejudice. The jury might have been disinclined to give due weight to the nuanced mental health evidence after hearing the basic facts of non-appearance. A bifurcated trial would have allowed for a clearer presentation. The first phase could have addressed the factual question of non-appearance. If found, a second phase could have exclusively addressed whether this failure was "willful" in light of the mental state evidence. This separation is particularly important for BRA charges, where mens rea is often the only contested element. See Duran v. United States, No. 95-3096, slip op. at 4-5 (D.C. Cir. Oct. 8, 1996).
The denial of bifurcation forced Appellant into a strategic dilemma: either fully develop his mental health defense at the risk of prejudicing the jury, or curtail this crucial defense. This is the prejudice bifurcation is designed to prevent. See Holmes v. United States, 363 F.2d 281, 282-83 (D.C. Cir. 1966). Given the substantial nature of Appellant's defense and the potential for prejudice, the trial court's denial of the requested bifurcation was an abuse of discretion requiring reversal.
This Court reviews a trial court's legal conclusions regarding a Sixth Amendment speedy trial claim de novo and its factual findings for clear error. See, e.g., Hartridge v. United States, 896 A.2d 198, 203 (D.C. 2006).
The Sixth Amendment guarantees every criminal defendant the right to a speedy trial. To determine if this right has been violated, courts apply the four-factor balancing test from Barker v. Wingo, 407 U.S. 514, 530 (1972): (1) length of delay, (2) reason for delay, (3) defendant's assertion of the right, and (4) prejudice. A delay of a year or more is "presumptively prejudicial," triggering a full Barker analysis. Hartridge, 896 A.2d at 203-04. The right attaches upon indictment. United States v. MacDonald, 456 U.S. 1 (1981).
In Mr. Keerikkattil's case, the delay between the original indictment on July 11, 2018, and his arrest in October 2022, spanned over four years—far exceeding the one-year threshold. This extensive delay, coupled with the government's lack of diligence, mandates dismissal.
The reason for the delay weighs heavily against the government. The government has an obligation to exercise "due diligence" in locating and apprehending an accused, even if abroad. Here, the government's efforts were virtually non-existent. On September 14, 2018, AUSA Giovannelli assured the court that "our office is working on extradition." This proved hollow. Despite knowing Appellant was in India and later, by November 2020, definitively in Australia, the government took no meaningful steps. In fact, on November 25, 2020, the Department of Justice formally communicated its "no intent to seek the defendant's extradition." A "wait-and-see" strategy is insufficient. See United States v. Heshelman, 521 F. App’x 501, 505-10 (6th Cir. 2013). The government's inaction demonstrates a lack of diligence and good faith.
Mr. Keerikkattil asserted his right to a speedy trial after his return. The lengthy delay caused significant prejudice. First, there is presumptive prejudice from such an inordinate delay. Doggett v. United States, 505 U.S. 647, 655 (1992). Second, he suffered actual prejudice. The passage of over five years impaired his ability to present a defense. Both Appellant and a key government witness had faded memories. This memory impairment is particularly prejudicial in a BRA case where the defendant's state of mind is central. Furthermore, the Department of State's destruction of his passport deprived him of evidence to bolster his claim. Finally, he endured oppressive pretrial incarceration for over a year.
Balancing the Barker factors, the extraordinary delay, the government's lack of diligence, Appellant's assertion of his right, and the demonstrable prejudice all weigh decisively in favor of finding a violation of his Sixth Amendment right to a speedy trial. The trial court erred in denying Appellant's motion to dismiss.
Claims of speedy trial violations and pre-indictment delay involve mixed questions of law and fact; legal conclusions are reviewed de novo, and factual findings for clear error. See Hartridge, 896 A.2d at 203.
The filing of a superseding indictment does not reset the speedy trial clock for offenses charged in the original indictment or for offenses that were known to the government and could have been joined with the original charges through due diligence. See United States v. Marshall, 935 F.2d 1298, 1302 (D.C. Cir. 1991); United States v. Rojas-Contreras, 474 U.S. 231, 239-40 (1985) (Marshall, J., concurring). This principle prevents the government from circumventing the speedy trial guarantee by strategically delaying charges. The second BRA count in the superseding indictment, relating to the September 14, 2018 non-appearance, was based on facts known to the government in 2018. The government could have, and with diligence should have, included this charge in the original July 2018 indictment or sought a superseding indictment much earlier. Its failure to do so means that the nearly five-year delay analyzed under Argument VI applies with equal force to this second count. As held in United States v. Handa, 892 F.3d 95, 106-07 (1st Cir. 2018), where the government brings a superseding indictment with charges that could have been brought years earlier, the speedy trial clock is not reset, and dismissal of all charges may be warranted. The government's attempt here to add a stale charge years later cannot cure the initial speedy trial violation.
Even apart from the speedy trial right that attaches post-indictment, an inordinate delay in bringing charges can violate the Due Process Clause if it causes actual, substantial prejudice to the defense and was an intentional device by the government to gain a tactical advantage or was otherwise brought in bad faith. United States v. Marion, 404 U.S. 307, 324 (1971). The nearly five-year delay in indicting Appellant on the second BRA count (for the September 14, 2018 non-appearance) is an inordinate delay, as the government possessed all necessary facts in 2018. This delay was not due to ongoing investigation but appears to be a deliberate choice, culminating in a charge brought only in retaliation for Appellant's speedy trial motion. This bad faith, coupled with the prejudice of facing doubled charges and potential incarceration, and the inherent prejudice to memory and defense preparation recognized in Doggett v. United States, 505 U.S. 647, 655 (1992), constitutes a due process violation. The trial court's failure to dismiss the superseding indictment in light of these violations was error.
Claims of vindictive prosecution involve mixed questions of law and fact; legal conclusions are reviewed de novo, and factual findings for clear error. See Simms v. United States, 41 A.3d 482, 486-87 (D.C. 2012).
The Due Process Clause of the Fifth Amendment prohibits the government from punishing a person for exercising a legally protected statutory or constitutional right. United States v. Goodwin, 457 U.S. 368, 372 (1982). A presumption of vindictiveness arises when a defendant demonstrates a "realistic likelihood of vindictiveness" based on the prosecutor's actions following the defendant's exercise of such a right. Simms, 41 A.3d at 487-88 (citing Blackledge v. Perry, 417 U.S. 21, 27 (1974)). Once this presumption arises, the burden shifts to the government to offer a legitimate, non-vindictive explanation for its actions. Simms, 41 A.3d at 488.
Appellant established a strong presumption of vindictiveness under the Simms framework. The superseding indictment, which doubled Appellant's BRA charges and potential incarceration, was obtained on February 16, 2023, just one week after Appellant filed his motion to dismiss for a speedy trial violation on February 9, 2023. This motion was not only an exercise of a constitutional right but also contained pointed criticism of AUSA John Giovannelli's personal failure to pursue extradition despite his on-record statements. The Simms factors supporting a presumption of vindictiveness are met here:
The government's proffered explanations for the superseding indictment—such as embracing a "new strategy" after the January 4, 2023 trial continuance, or needing to introduce the "second notice" to appear for evidentiary purposes to show absence of mistake or intent—are pretextual and insufficient to rebut the presumption of vindictiveness. A "new strategy" does not explain a five-year delay on known facts. Evidentiary needs are addressed through motions in limine, not by adding retaliatory charges that significantly increase a defendant's penal exposure. The government's actions strongly suggest that the superseding indictment was brought "solely to penalize him and could not be justified as a proper exercise of prosecutorial discretion." See United States v. Slatten, 865 F.3d 767, 799 (D.C. Cir. 2017).
A trial court's decision on a motion to dismiss an indictment for grand jury misconduct is reviewed for abuse of discretion. Dismissal is appropriate if the misconduct "substantially influenced the grand jury's decision to indict," or if there is "grave doubt that the decision to indict was free from the substantial influence of such violations." Bank of Nova Scotia v. United States, 487 U.S. 250, 256 (1988) (internal quotation marks omitted).
The integrity of the grand jury process is compromised when the government presents inadmissible and prejudicial evidence, particularly evidence obtained in violation of the attorney-client privilege. The attorney-client privilege is fully applicable to grand jury proceedings. In re Public Defender Service (PDS), 831 A.2d 890, 902 (D.C. 2003). In this case, the government committed serious misconduct by presenting Government Exhibit 8 to the grand juries that returned both indictments before any judicial determination as to whether the crime-fraud exception applied or privilege had been waived. The trial court later explicitly found that the crime-fraud exception did not apply. Therefore, at the time of its presentation, the email was presumptively privileged and inadmissible.
This Court in PDS established that before privileged information can be presented to a grand jury under the crime-fraud exception, the government must make a prima facie showing to the court, which must "vigorously test" the government's submissions. PDS, 831 A.2d at 902, 905. The government made no such showing. It unilaterally decided to use the privileged communication, usurping the trial court's critical gatekeeping function. This conduct also deprived Appellant of his right to challenge the disclosure and seek an immediate appeal under the Perlman doctrine. See Adams v. Franklin, 924 A.2d 993, 996-97 (D.C. 2007).
The presentation of this privileged email, described by the government as "a critical piece of evidence," undoubtedly had a "substantial influence" on the grand juries' decisions to indict, particularly on the element of "willfulness." See Bank of Nova Scotia, 487 U.S. at 256. As this Court held in Moore v. United States, 285 A.3d 228, 241 (D.C. 2022), even "unguarded and ill-advised suggestions" from a client to an attorney are privileged, and their erroneous admission at trial was not harmless. The impact on a grand jury is likely even more profound. Furthermore, Appellant alleged that the government failed to comply with USAM 9-11.255. The government's intentional presentation of inadmissible privileged material, bypassing judicial review, created "grave doubt" that the decisions to indict were free from such improper influence. This misconduct warrants dismissal of both indictments.
Whether prosecutorial or defense counsel misconduct warrants dismissal of an indictment is a question of law based on factual findings. Dismissal is an extraordinary remedy, reserved for egregious misconduct that fundamentally undermines the integrity of the proceedings. See, e.g., United States v. Morrison, 449 U.S. 361, 365 (1981).
The Sixth Amendment right to counsel includes the unwavering duty of loyalty and the preservation of client confidences. When a defense attorney breaches these duties by disclosing privileged communications to the prosecution, and the prosecution knowingly exploits that breach to secure an indictment, the resulting taint may be so profound that dismissal is the only appropriate remedy.
Appellant's former counsel, Bernard Grimm, transmitted Appellant's privileged July 10, 2018 email directly to AUSA John Giovannelli without consent, a flagrant violation of D.C. Rule of Professional Conduct 1.6. The government actively used this privileged email—the direct "fruit" of Mr. Grimm's misconduct—to secure both indictments. The email was central to establishing "willfulness." This situation involves an alleged "collusion" between former defense counsel and the prosecution, where counsel effectively "switched sides." Mr. Grimm's subsequent disbarment (In re Grimm, 252 A.3d 486 (D.C. 2021)) and the allegations in Cherdak v. O'Grady lend credence to the severity of the breach.
When the government obtains evidence through an intentional and egregious intrusion into the attorney-client relationship, the Sixth Amendment is violated. See Shillinger v. Haworth, 70 F.3d 1132, 1138-39 (10th Cir. 1995) (intentional intrusions are per se Sixth Amendment violations, prejudice presumed). The remedy must "identify and then neutralize the taint." Id. at 1142. Where the tainted evidence forms the very basis of the indictment, suppression at trial may be insufficient. The indictment itself is the direct product of the misconduct. This Court has recognized that statements taken intentionally from a defendant without a waiver of counsel must be excluded for all purposes. Simpson v. United States, 632 A.2d 374, 382 (D.C. 1993). This principle extends to situations where the government improperly acquires core attorney-client communications through attorney misconduct.
If the government's decision to prosecute was fundamentally dependent on the improperly obtained email, the entire prosecution is tainted. Dismissal is a drastic remedy, but it is warranted where misconduct is so outrageous that it subverts justice. Here, the alleged collusion represents such a subversion. Allowing the prosecution to proceed would reward misconduct and irreparably damage the integrity of the judicial process. Therefore, dismissal of the indictment is the only sufficient remedy.
The question of whether an indictment fails to state an offense because the underlying statute does not proscribe the alleged conduct as a felony is a question of statutory interpretation, which this Court reviews de novo. See, e.g., (James) Jones v. United States, 716 A.2d 160, 163 (D.C. 1998).
An indictment must charge an offense recognized by law. Appellant was charged with two counts of felony Bail Reform Act (BRA) violation under D.C. Code § 23–1327 for failing to appear in his underlying misdemeanor case. However, a careful examination of § 23–1327 reveals that it does not classify a failure to appear for a misdemeanor matter as a felony. The trial court's denial of Appellant's motion to dismiss was erroneous.
The plain language of D.C. Code § 23–1327(a) delineates different penalties based on the nature of the charge for which the individual was released: Subsection (a)(1) addresses individuals released "pending trial for a felony, or pending appeal after conviction of any offense." A willful failure to appear here is punishable by imprisonment for "not less than one year and not more than five years," clearly a felony. Subsection (a)(2) addresses individuals released "pending trial for a misdemeanor." A willful failure to appear here is punishable by imprisonment for "not more than one year," the hallmark of a misdemeanor in the District of Columbia. See D.C. Code § 22-106. Appellant was released pending sentencing after a misdemeanor conviction. Therefore, his alleged failure to appear falls squarely under the penalty provisions of § 23–1327(a)(2), which prescribes misdemeanor-level punishment. The government's decision to charge these offenses as felonies is not supported by the statutory text. The applicable fine is set by D.C. Code § 22-3571.01.
Canons of statutory construction further support this interpretation. The principle of expressio unius est exclusio alterius suggests that because Congress explicitly defined when a BRA violation is a felony (under (a)(1)), its prescription of lesser penalties for misdemeanor-related failures under (a)(2) implies the latter is not a felony. Even if ambiguity were perceived, the rule of lenity requires that it be resolved in favor of the defendant. See, e.g., (James) Jones, 716 A.2d at 166. Because the superseding indictment charged Appellant with felony offenses not authorized by D.C. Code § 23–1327 for his specific alleged conduct, it failed to state a cognizable felony offense, and the trial court erred in not dismissing these counts.
Whether an indictment is multiplicitous and thereby violates the Double Jeopardy Clause of the Fifth Amendment is a question of law reviewed de novo. See, e.g., Brown v. United States, 795 A.2d 56, 59 (D.C. 2001).
The Double Jeopardy Clause protects against multiple punishments for the same offense. Whalen v. United States, 445 U.S. 684, 688 (1980). An indictment is multiplicitous if it charges a single offense in multiple counts. Where such multiplicity exists, one or more of the convictions must be vacated. Sanchez-Rengifo v. United States, 815 A.2d 351, 354 (D.C. 2002).
In this case, the government charged Appellant with two separate counts of felony BRA violation under D.C. Code § 23–1327(a). Both counts stemmed from his failure to appear for proceedings related to a single underlying misdemeanor conviction. The first count was for his failure to appear on July 10, 2018, and the second for his failure to appear on September 14, 2018. Appellant contends that these two charges, arising from the same release order in the same case, constitute a single, continuing offense of failure to appear, and therefore charging him with two separate BRA violations is multiplicitous. The test for multiplicity is often guided by Blockburger v. United States, 284 U.S. 299 (1932).
The "unit of prosecution" for a BRA violation should be viewed as the continuous act of willfully remaining absent from court proceedings related to a specific underlying case after an initial failure to appear and the issuance of a bench warrant. Once Appellant failed to appear on July 10, 2018, and a bench warrant was issued, his subsequent failure to appear on September 14, 2018, for the same case, while the initial warrant remained outstanding, was part of the same ongoing offense of absconding from that judicial process.
The Ninth Circuit’s reasoning in United States v. Castaldo, 636 F.2d 1169 (9th Cir. 1980), is highly persuasive. In Castaldo, the court held that once a defendant fails to appear, has his bail forfeited, and a bench warrant is issued, he is no longer "released pursuant to" the Bail Reform Act; he is a fugitive. Any subsequent failure to appear for the same case is not a new offense because the defendant is no longer in a status of release. The congressional purpose of deterring nonappearance is not served by punishing a defendant who is already a fugitive. Here, Appellant failed to appear on July 10, 2018, and a bench warrant was issued. At that point, his status changed from one of release to that of a fugitive. His subsequent failure to appear on September 14 for the same case was part of the same ongoing offense. The government's strategy of treating each missed court date as a distinct BRA offense artificially multiplies the charges. Charging two separate felonies for this conduct violates the Double Jeopardy Clause, requiring vacatur of one of the convictions.
A trial court’s sentencing decisions are reviewed for abuse of discretion, but whether a sentence is authorized by statute or based on a material misunderstanding of law is a question of law reviewed de novo.
At the sentencing hearing on January 17, 2024, the trial court imposed a three-year term of supervised release under the mistaken belief that it was statutorily required. The court declared, “There's nothing in the guidelines that allows me to not include supervised release. Nothing... It's a requirement.” (1/17/24 Tr. at 38). This was a clear error of law. This Court has repeatedly affirmed that Superior Court judges have discretionary authority to suspend a required term of supervised release. Richardson v. United States, 927 A.2d 1137, 1143 n.11 (D.C. 2007); Boykins v. United States, 856 A.2d 606, 607 (D.C. 2004). Furthermore, under D.C. Code § 24-403.01(b)(3)(B), for a sentence of "one year or less," a term of supervised release is discretionary, not mandatory. The court’s entire basis for imposing the three-year term was its incorrect belief that it was statutorily compelled to do so. This constitutes a clear error of law requiring reversal.
A sentence based on “material false assumptions as to any facts relevant to sentencing, renders the entire sentencing procedure invalid as a violation of due process.” Bradley v. District of Columbia, 107 A.3d 586, 589 (D.C. 2015). The trial court’s repeated assertions that supervised release was a "requirement" constituted a "material false assumption" about the controlling sentencing law. This was not a minor misstatement; it was the sole and entire basis for imposing a three-year term of supervision that otherwise had no articulated justification. As in Bradley, this reliance on a material misunderstanding of the law “infected the decision” and rendered this portion of the sentencing procedure invalid as a violation of due process.
The purpose of supervised release is not punitive, but to deter recidivism and encourage rehabilitation for those who need it. Atchison v. United States, 257 A.3d 524, 531 (D.C. 2021). The trial court’s reasoning for imposing the three-year term of supervised release was not based on any finding of a need for rehabilitation or a risk of recidivism. The court’s sole stated reason was that it was “required” to do so. This is underscored by its explicit refusal to impose probation for the very same purposes, stating, “there's no reason for him to be on active probation. None.” (1/17/24 Tr. at 38). Given that this Court has found “no meaningful distinction between probation and supervised release,” it is contradictory for the trial court to have found no basis for probation while simultaneously imposing a lengthy term of supervised release based on a mistaken belief that it was mandatory. Davis v. United States, 306 A.3d 89, 122 (D.C. 2023).
Whether a trial court has the authority to modify a sentence is a question of law that this Court reviews de novo. See, e.g., Bell v. United States, 676 A.2d 37, 40-41 (D.C. 1996). A trial court's determination of whether a sentence is illegal or was imposed in an illegal manner is also a question of law reviewed de novo. See Littlejohn v. United States, 749 A.2d 1253, 1256 (D.C. 2000). Claims that a sentence violates the Due Process Clause are reviewed de novo. See Jordan v. United States, 235 A.3d 808, 814 (D.C. 2020).
On July 19, 2024, more than six months after imposing the original sentence, the trial court recalled Mr. Keerikkattil to resentence him based on its sua sponte determination that the original concurrent sentence was "illegal." This action, however, was taken without jurisdiction and is therefore a legal nullity.
Superior Court Rule of Criminal Procedure 35, the sole avenue for such a correction, creates a critical distinction between a sentence that is "illegal" and one "imposed in an illegal manner." An "illegal" sentence—one at variance with the controlling statute, such as a term of imprisonment exceeding the statutory maximum—may be corrected "at any time." Super. Ct. Crim. R. 35(a); see also Whylie v. United States, 98 A.3d 156, 161 n.6 (D.C. 2014). In contrast, a sentence "imposed in an illegal manner"—one where the court commits a procedural error while imposing a sentence that is substantively within statutory limits—may only be corrected sua sponte within 120 days. Super. Ct. Crim. R. 35(b)(2); Brown v. United States, 795 A.2d 56, 61 n.2 (D.C. 2002). This 120-day limit is a grant of jurisdiction that cannot be extended. Allen v. United States, 495 A.2d 1145, 1149 (D.C. 1984) (en banc). Once an appeal is noted, as it was here in January 2024, the trial court is divested of jurisdiction to take any substantive action, such as amending a sentence, outside the narrow exceptions provided by Rule 35. Bell, 676 A.2d at 40-41.
Appellant's original sentence was not "illegal" as that term is defined by this Court's precedent. He was sentenced to one year of incarceration on each of two BRA counts, to run concurrently. Each one-year term was within the statutory range of "not less than one year and not more than five years" prescribed by D.C. Code § 23-1327(a). The trial court's subsequent belief that D.C. Code § 23-1327(d) required the sentences to be consecutive represented, at most, a procedural error in the application of the sentencing scheme. As this Court has held, when a court "imposes a sentence within the limits authorized by the relevant statute, but commits a procedural error in doing so, the sentence is imposed in an 'illegal manner.'" Littlejohn, 749 A.2d at 1256 (quoting Robinson v. United States, 454 A.2d 810, 813 (D.C. 1982)). A failure to properly impose consecutive sentences when required is a classic example of a sentence imposed in an illegal manner, not an illegal sentence per se. See, e.g., United States v. Letterlough, 63 F.3d 332, 337 (4th Cir. 1995) (holding that a failure to impose a statutorily required consecutive sentence results in a sentence imposed in an illegal manner, subject to the time limits of the federal analogue to Rule 35).
Because the original sentence was, at worst, imposed in an illegal manner, the trial court lost jurisdiction to correct it sua sponte after the 120-day period expired in May 2024. The resentencing in July 2024 was therefore an unauthorized act, and the amended sentence must be vacated.
Even if the original sentence could somehow be deemed "illegal," its correction under these circumstances violated Appellant's due process rights. A defendant has a legitimate expectation in the finality of their sentence, and it is well-established that "once a defendant begins serving a sentence, the sentence may not lawfully be increased." Smith v. United States, 687 A.2d 581, 583 (D.C. 1996); see also Borum v. United States, 409 F.2d 433, 440 (D.C. Cir. 1967) (invalidating sentence increase from concurrent to consecutive five days after sentencing).
This Court's decision in Jordan v. United States, 235 A.3d 808 (D.C. 2020), is controlling. In Jordan, this Court recognized that increasing a defendant's illegal sentence after they have served a substantial portion of it can violate due process. The Court outlined four factors to consider: (a) the time elapsed; (b) the reasonableness of the defendant's expectation of finality; (c) the government's diligence; and (d) the prejudice from the change. Id. at 815. Every factor weighs decisively in Appellant's favor.
The trial court's use of a nunc pro tunc order to effectuate this change was an abuse of that power. Nunc pro tunc orders are meant to correct the record to reflect what actually happened, not to create "revisionist history" by imposing a new sentence that was explicitly considered and rejected at the time. See Roman Catholic Archdiocese of San Juan v. Feliciano, 589 U.S. 57, 65 (2020). A court's "incorrect action, can never authorize a nunc pro tunc entry." Stansell v. Revolutionary Armed Forces of Columbia, 771 F.3d 713, 747 (11th Cir. 2014). D.C. law is in accord; a nunc pro tunc order "cannot be used to supply a judicial ruling or action that was never made." Ready v. United States, 620 A.2d 233, 235 (D.C. 1993). Here, the trial court did not simply fail to state its intent to impose probation; it explicitly stated its intent not to do so. The nunc pro tunc order therefore did not correct a clerical error—it improperly rewrote a substantive judicial decision.
The trial court lacked jurisdiction to modify the sentence after 120 days. Even if it had jurisdiction, the belated and substantial increase in Appellant's sentence, particularly the addition of a lengthy and previously rejected term of probation, violated his due process right to finality. Hence, the amended sentence must be vacated.
This Court reviews claims of cumulative error to determine whether the combined effect of multiple errors, none of which may be sufficient on its own to warrant reversal, deprived the appellant of a fair trial. The ultimate question is whether the aggregate of the errors had a "substantial and injurious effect or influence in determining the jury's verdict." Kotteakos v. United States, 328 U.S. 750, 776 (1946). The District of Columbia Court of Appeals has consistently embraced this standard, holding that the inquiry is "whether the cumulative impact of the errors substantially influenced the jury's verdict." Smith v. United States, 26 A.3d 248, 264 (D.C. 2011) (quoting Foreman v. United States, 792 A.2d 1043, 1058 (D.C. 2002)). In making this determination, the court must "evaluate the significance of the alleged errors and their combined effect against the strength of the prosecution's case." Foreman, 792 A.2d at 1058. If a reviewing court cannot say "with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error," the conviction cannot stand. Kotteakos, 328 U.S. at 765.
The cumulative-error doctrine recognizes that a series of errors, though individually harmless, may in the aggregate so infect the trial with unfairness as to deny the defendant a fair trial. Under this doctrine, a conviction must be reversed if the cumulative effect of multiple errors denied the appellant a fair trial, even if no single error merits reversal on its own. This case presents a textbook example of when the doctrine should be applied.
The proceedings below were marred by a cascade of severe constitutional and procedural violations. These errors were not isolated or minor; they struck at the heart of Appellant's fundamental rights and the integrity of the trial process. They include:
The necessity for reversal is magnified when these pervasive errors are weighed against the profound weakness of the government’s case on the only contested element: willfulness. The prosecution’s case hinged almost exclusively on the improperly admitted, unauthenticated, and privileged Grimm email (Argument IV). Without it, the government had little to rebut Appellant’s testimony regarding his mental state. This is precisely the scenario where the cumulative error doctrine is most potent. As this Court held in Foreman, the weaker the prosecution's case, the more likely it is that an accumulation of errors will be found to have substantially influenced the jury's verdict. 792 A.2d at 1058.
The errors here did not merely affect the evidence; they systematically dismantled Appellant’s ability to mount a defense. The structural error of depriving Appellant of his chosen counsel (Argument I), compounded by the failure to conduct a constitutionally required Monroe-Farrell inquiry into the effectiveness of appointed counsel (Argument II), left Appellant with a defense crippled from the start. This Court reversed a conviction in Smith v. United States because the sum of several errors "unfairly handicapped Smith's ability to defend himself." 26 A.3d at 265. The handicap imposed on Appellant here was far more severe, striking at the core of his Sixth Amendment rights.
Furthermore, the key evidence was used to improperly bolster a prosecution that was not just weak, but tainted from its inception. In Sims v. United States, 213 A.3d 1260 (D.C. 2019), this Court reversed where erroneously admitted hearsay was used to corroborate a single, heavily impeached eyewitness. Here, the privileged Grimm email (Argument IV) served the same prejudicial function. It was the sole "corroboration" for the government’s theory of willfulness, and it came from a demonstrably corrupt source, was presented by a prosecutor who was also an unsworn witness (Argument III), and was the fruit of an egregious breach of the duty of loyalty (Argument IX). The admission of this email created the false impression of a "smoking gun" where, in reality, there was only the smoke of prosecutorial and ethical misconduct.
The combined effect of these errors created a perfect storm of prejudice. The government built its case on evidence tainted from its inception, presented by a prosecutor who was also a witness to its acquisition. Appellant was denied his chosen counsel, and his complaints about his appointed counsel were ignored. His ability to present his defense was hampered, and his fundamental rights to a speedy and fair trial were violated at every turn. The sheer number and severity of these errors, when viewed in their totality, demonstrate that the trial was fundamentally unfair. When "all is said and done," a reviewing court cannot have "fair assurance" that the jury’s verdict was not substantially swayed by this cascade of errors. Kotteakos, 328 U.S. at 764-65. The cumulative effect of these errors requires reversal of Appellant's convictions.
For the foregoing reasons, Appellant Ranjith Keerikkattil respectfully requests that this Court reverse his convictions and remand with instructions to dismiss the indictment. In the alternative, Appellant requests that his convictions be vacated and the case remanded for a new trial, and that the illegal sentences imposed on on January 17, 2024, and July 19, 2024, be vacated.
Respectfully submitted,
_________________________
James Kraus, Esq.
Counsel for Appellant
I hereby certify that on this 8th day of September, 2025, a copy of the foregoing Brief for Appellant was served via this Court’s electronic filing system on the Office of the United States Attorney for the District of Columbia, Appellate Division.
_________________________
James Kraus, Esq.