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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 22-CM-0963

RANJITH V. KEERIKKATTIL, APPELLANT,

v.

UNITED STATES, APPELLEE.

Appeal from the Superior Court of the

District of Columbia

(2015-CMD-017652)

(Hon. Robert A. Salerno & James A. Crowell, Trial Judges)

(Argued February 14, 2024 Decided April 25, 2024)

David H. Reiter for appellant.

Anne Y. Park, Assistant United States Attorney, with whom Matthew M. 

Graves, United States Attorney, Chrisellen R. Kolb, Nicholas P. Coleman, and John 

G. Giovannelli, Assistant United States Attorneys, were on the brief, for appellee.

Before BLACKBURNE-RIGSBY, Chief Judge, and DEAHL and SHANKER, 

Associate Judges.

SHANKER, Associate Judge: In 2015, appellant Ranjith V. Keerikkattil was 

terminated from Deloitte Consulting for acting inappropriately toward a junior 

colleague, S.S. Mr. Keerikkattil then embarked on a months-long campaign of 

retribution against S.S., in which he, among other things, repeatedly sent S.S. 
2

threatening texts and emails; sent letters and communications to Deloitte and 

government agencies claiming that S.S. had engaged in misconduct; and showed up 

on the doorstep of S.S.’s parents, who lived across the country. Following a jury 

trial in the D.C. Superior Court, Mr. Keerikkattil was convicted of criminal stalking 

under D.C. Code § 23-3133.

Mr. Keerikkattil appeals, arguing that the trial court’s failure to instruct the 

jury that it needed to find that his communications fell within one of the narrowly 

defined categories of unprotected speech as required by our recent decision in 

Mashaud v. Boone, 295 A.3d 1139 (D.C. 2023) (en banc), violated his First 

Amendment rights. But Mr. Keerikkattil never asked the trial court for such an

instruction, and we hold that any error did not affect his substantial rights and thus 

does not warrant reversal. Mr. Keerikkattil also challenges the sufficiency of the 

evidence against him, the Superior Court’s jurisdiction, and two aspects of his 

sentencing. We affirm Mr. Keerikkattil’s conviction but remand for the trial court 

to reconsider its imposition of probation at sentencing.
3

I. Background

A. Factual Background

The government’s evidence at trial supported the following. During the 

relevant time period, S.S. lived in the District of Columbia. In early 2015, at the age 

of twenty-three, she began working as a business technology analyst—an entry-level 

position—at Deloitte. A month after she started working at Deloitte, S.S. met 

Mr. Keerikkattil, who worked as a senior consultant within the same informationmanagement group, a position two levels senior to S.S.

After she expressed interest, Mr. Keerikkattil asked S.S. to collaborate on a 

large proposal he was working on. Proposals are essentially sales pitches to win the 

federal contracts that make up the “lifeblood” of Deloitte’s federal consulting 

practice. S.S. understood that working on the proposal would give her exposure, 

help her develop “an important skill set,” and be a “good learning experience.” It 

was her first time working on a proposal.

S.S. and Mr. Keerikkattil worked closely on the proposal, spending the better 

part of forty hours a week over several months either together in person or 

communicating with each other. Their collaboration often included working outside 

the firm’s office, including at a common area in S.S.’s apartment building.
4

S.S. testified that Mr. Keerikkattil’s questions and conduct veered at times too 

far into the personal. For example, he once asked her if the reason she was wearing 

a one-piece swimsuit in a Facebook picture was because she had recently gained 

weight. S.S. told Mr. Keerikkattil that his comments were “inappropriate” and “rude 

and hurtful.” Mr. Keerikkattil later apologized via text. In his apology, however, 

Mr. Keerikkattil told S.S. that she was “cute[,] slim[,] and sexy! Big time.” 

Eventually, and repeatedly, S.S. told Mr. Keerikkattil that she wanted to keep their 

relationship professional and that he should text her only about work-related topics. 

Nevertheless, Mr. Keerikkattil continued to reach out socially, by, for example, 

inviting S.S. out to drinks and buying her a bottle of alcohol as a gift.

The day after S.S. rejected Mr. Keerikkattil’s invitation to “grab a drink” 

socially, Mr. Keerikkattil emailed S.S. a “Cease & Desist Letter.” The email 

apprised S.S. that Mr. Keerikkattil would not be working directly with her anymore 

and that she should work with others on the team instead. It asked her to “please 

refrain from contacting [him] except for legitimate business needs of Deloitte LLP.” 

S.S. cried when she received the email, and she did not understand if there were legal 

ramifications stemming from it. She felt she “was being attacked and punished for 

not reciprocating [Mr. Keerikkattil’s] advances.” Per the request in the email, S.S. 

ceased contacting Mr. Keerikkattil.
5

Mr. Keerikkattil, however, continued contacting S.S. He approached her at a 

work event, and he messaged her privately. S.S. reported the situation to Deloitte. 

Deloitte terminated Mr. Keerikkattil for lying during its investigation into S.S.’s 

report. What followed Mr. Keerikkattil’s termination was a campaign of retribution 

against S.S. over the summer and fall of 2015.

After his termination, Mr. Keerikkattil emailed Vikram Rajan—another 

Deloitte employee who Mr. Keerikkattil had learned was dating S.S.—requesting 

that he “preserve” “[a]ny and all communications between [Mr. Rajan] and 

[S.S.] . . . , including but not limited to any sexually explicit text messages and 

[instant messages] exchanged such as ‘I want to eat you [S.S.].’” The email copied 

S.S. It explained that Mr. Keerikkattil had “no interest in [S.S.], but [he was] 

interested in the inappropriate and non-professional relationship between [S.S. and 

Mr. Rajan] as evidence of [S.S.’s] character and conduct, as well as for violation of 

Deloitte policies.” The email concluded: “So go ahead and continue to bring [S.S.] 

over to your place, have sex with her or whatever. I’ll make sure that all the 

shenanigans are captured. The more evidence against [S.S.], the stronger that 

charges against her become[ ].” Mr. Keerikkattil sent a similar “litigation-hold”

email to S.S.
6

On July 6, 2015, Mr. Keerikkattil emailed S.S. again. The email copied other, 

more senior, Deloitte employees and alleged that S.S. had violated Deloitte’s “Code 

of Ethics & Professional Conduct” because of her “inappropriate close relationship” 

with Mr. Rajan, that she had committed “blatant fraud” with respect to her 

timekeeping, and that there was “probable cause to believe [she] had violated 20 

U.S.C. § 1097(a), a federal felony[,] by not discussing drug related misconduct while 

applying for federal student aid.” Mr. Keerikkattil stated that S.S. could face “up to 

5 years in prison and [a] fine up to $20,000.” Mr. Keerikkattil closed the email by 

“assur[ing] [S.S.] that irrespective of how long it takes or whatever it costs we will 

get to the bottom of [her] lies and misrepresentations.”

S.S. denied the allegations in Mr. Keerikkattil’s email. She contested the 

allegation about an inappropriate relationship with Mr. Rajan. Although they were 

dating, she testified that the relationship did not violate any Deloitte rules and that 

they had reported the relationship to human resources. She further denied having 

“committed blatant fraud,” as the email alleged, regarding her timekeeping. As for 

the drug use, S.S. testified that she had disclosed prior drug use when she applied 

for a security clearance, and she had not engaged in any drug-related misconduct.

On July 28, Mr. Keerikkattil emailed S.S. to notify her of an impending 

lawsuit against her. The email explained that if she did not offer a convenient 
7

location to be served, he would be forced to have a sheriff serve her at Deloitte, 

“which might be embarrassing for you.” It asked her to “[p]lease take note of the 

intentional personal injury tort claims against you. You could end up paying 

damages for the rest of your life . . . .” The email continued, “[i]f you are willing to 

be truthful and recognize the damages that you’ve caused, I might be able to help 

you out. After all[,] my intention here is not to ruin your future or ruin you 

financially.” S.S.’s lawyer, who also represented Deloitte, responded and 

“instructed [Mr. Keerikkattil] to direct any communications intended for [S.S.], 

regardless of subject matter or context, exclusively to [the lawyer] or [their] 

designee(s).”

Shortly after the email exchange, S.S. saw Mr. Keerikkattil outside a café they 

used to work in together near the Deloitte office. The two made eye contact, and 

S.S. returned to the office and notified security.

In September 2015, Mr. Keerikkattil sent a letter to the Internal Revenue 

Service (IRS) about S.S. regarding her work on a Deloitte project involving the 

agency. The letter alleged that S.S. had been “fired from the Bureau of Engraving 

and Printing . . . allegedly due to illegal drug use history.” The letter requested that 

the agency “launch an inquiry into how [S.S.] was able to obtain a position with [the]
8

IRS despite being fired from [the Bureau of Engraving and Printing] and whether 

any IRS[ ] policies were violated with regard[ ] to her hiring.”

S.S. denied these allegations as well. She had previously completed a 

security-clearance application for a project involving the Bureau of Engraving and 

Printing, but she withdrew the application after learning that it might be denied due 

to her prior drug use. She had truthfully answered questions relating to that drug use 

on the application. She further testified that she had never been denied a clearance 

or been fired.

On October 1, Mr. Keerikkattil texted S.S. again. Mr. Keerikkattil wrote: 

“You’d have forgotten me but how can I for what you’ve done to me . . . .” He 

blamed her for making his “life hell” and not “car[ing] about others.” Finally, he 

told S.S.: “I would have forgiven you if you had expressed regret for what all I had 

to suffer because of you. But instead you wanna fight. Then let’s do exactly that.”

On October 9, Mr. Keerikkattil followed up with yet more texts. He let S.S. 

know that he was “going to return what [she had done] to [him] with interest.” 

Among other things, he told her: “[s]it back and enjoy as I fuck up your life.” He 

added specifically: “[n]ow guess who all know about the illegal drug use history and 

your expulsion from [the Bureau of Engraving and Printing].”
9

This series of texts “paralyz[ed]” S.S. She testified that she cried over them 

and that they “haunt[ed]” her. She contacted the police.

On October 24, Mr. Keerikkattil texted S.S. again. He had travelled to S.S.’s 

childhood home in Oregon and knocked on the front door. He had handed S.S.’s 

father his business card before leaving. S.S.’s father immediately contacted his 

daughter about the incident and notified the police. Mr. Keerikkattil texted S.S. that 

it “[w]as nice meeting [her] dad today,” along with other related messages. S.S. 

reported the incident to Deloitte’s human resources and legal teams.

After Mr. Keerikkattil’s trip to Oregon, S.S. began leaving the office only 

during the daytime and taking more circuitous routes home. Her friends started

escorting her places because she did not feel “safe to go out on [her] own.” S.S. also 

obtained a civil protection order against Mr. Keerikkattil.

After considering this evidence, the jury found Mr. Keerikkattil guilty of 

criminal stalking under D.C. Code § 22-3133. The Superior Court sentenced 

Mr. Keerikkattil to twelve months of incarceration and, over Mr. Keerikkattil’s 

objection, suspended one of those months in exchange for five years of supervised 

probation.
10

B. Legal Background

A guilty verdict under D.C.’s criminal stalking statute requires the jury to find, 

in relevant part, that the defendant “purposefully engage[d] in a course of conduct 

directed at a specific individual” that the defendant “should have known would cause 

a reasonable person in the individual’s circumstances to: (A) Fear for his or her 

safety or the safety of another person; (B) Feel seriously alarmed, disturbed, or 

frightened; or (C) Suffer emotional distress.” D.C. Code § 22-3133(a). Although a 

finding that the defendant should have known the victim would suffer any of these 

three categories suffices, we have described emotional distress as “the broadest of 

the three categories” and have referred to all of the categories collectively as 

emotional distress. Mashaud v. Boone, 295 A.3d 1139, 1148 (D.C. 2023) (en banc). 

The statute defines “[e]motional distress” as “significant mental suffering or distress 

that may, but does not necessarily, require medical or other professional treatment 

or counseling.” D.C. Code § 22-3132(4). To constitute a “course of conduct,” the 

defendant must have acted “on 2 or more occasions” either “directly or indirectly, 

or through one or more third persons.” Id. § 22-3132(8).

The trial court instructed the jury that it must find that Mr. Keerikkattil 

“voluntarily and on purpose” “did directly or indirectly follow, monitor, threaten or 

communicate to or about [S.S.]” “on two or more occasions.” The jurors were also 
11

instructed that they must find that “when he did so, he should have known that his 

conduct would cause a reasonable person in [S.S.’s] circumstances to [ ] fear for her 

safety or the safety of another[;] or [ ] feel seriously alarmed, disturbed, or

frightened[;] or [ ] suffer emotional distress.” The trial court cautioned the jurors 

that “[f]iling a lawsuit is constitutionally protected activity. You may not consider 

the fact that such lawsuits were filed, or any statements made to a court during such 

lawsuits, as part of the conduct that the government must prove beyond a reasonable 

doubt.” Nevertheless, “communicating directly or indirectly to a person involved in 

a lawsuit . . . is not constitutionally protected and may be considered by you in 

determining whether the government has proven the offense beyond a reasonable 

doubt.”

The adequacy of the trial court’s instructions must be considered in light of

our subsequent decision in Mashaud. There, we significantly narrowed the scope of 

Section 22-3133 because, without modification, “[t]he constitutional problems with 

the statute [were] glaring.” Id. at 1144. We interpreted the section “to mean that, 

when speech is at issue, the statute covers only speech that fits within the 

‘well-defined and narrowly limited classes of speech, the prevention and punishment 

of which have never been thought to raise any Constitutional problem.’” Id. (quoting 

United States v. Stevens, 559 U.S. 460, 468-69 (2010)). “That includes threats, 

obscenity, defamation, fraud, incitement, and speech integral to criminal conduct.” 
12

Id. “Outside of those narrow categories, speech is constitutionally protected activity 

that the statute does not apply to.” Id. We refer to these “narrowly limited classes 

of speech,” Stevens, 559 U.S. at 469, as the categorical exceptions. In light of 

Mashaud, a jury cannot consider the content of a defendant’s speech as one of the 

occasions comprising a course of conduct for stalking unless it finds that the speech 

falls within a categorical exception. Mashaud, 295 A.3d at 1144.

II. Discussion

Mr. Keerikkattil raises four challenges to his conviction: he argues that (1) the 

trial court erred by failing to instruct the jury in a manner consistent with Mashaud 

v. Boone, 295 A.3d 1139 (D.C. 2023) (en banc); (2) the government presented 

insufficient evidence to convict him; (3) the trial court lacked jurisdiction to try him;

and (4) the court imposed an illegal sentence upon him. We address each argument 

in turn, ultimately affirming Mr. Keerikkattil’s conviction but remanding the case to 

the trial court for resentencing.1

 

1 Mr. Keerikkattil also argues that the trial court erred, and violated his dueprocess rights, by not instructing the jury that it needed to find him more than merely 

negligent before convicting him, because we have established a heightened mens rea 

requirement for criminal threats. See Carrell v. United States, 165 A.3d 314, 317 

(D.C. 2017) (en banc) (“We now hold that the government must prove the 

defendant’s mens rea to utter the words as a threat, and that it may do so by 

establishing that the defendant acted with the purpose to threaten or with knowledge 
13

A. Instructional Error

The gravamen of Mr. Keerikkattil’s first claim on appeal—at least if 

interpreted generously—appears to be that the trial court erred by not instructing the 

jury that it must find beyond a reasonable doubt that his conduct was either 

nonexpressive conduct or conduct that fell within the narrowly defined bounds of a 

categorical exception to the First Amendment’s protection. In our view, any such 

error on the part of the trial court—which Mr. Keerikkattil failed to preserve—did 

not affect Mr. Keerikkattil’s substantial rights and, as a result, does not warrant 

reversal.

1. Standard of Review

Mr. Keerikkattil did not raise this First Amendment challenge with the trial 

court, and it is thus unpreserved.

2

 Unpreserved arguments are forfeited because the 

 

that his words would be perceived as a threat.”); see also Counterman v. Colorado, 

600 U.S. 66, 69 (2023) (requiring a mens rea of at least recklessness before a 

defendant may be convicted for speech constituting a true threat of violence). 

Implicit in Mr. Keerikkattil’s argument is the assumption that the government 

needed to prove that his communications were criminal threats. Because we 

conclude that the government could convict Mr. Keerikkattil without proving any of 

the communications at issue were threats, we do not reach this argument.

2 Mr. Keerikkattil did raise a different First Amendment argument at trial. He 

argued that the jury could not consider communications relating to the lawsuits he 

filed against S.S. and others because those statements were constitutionally 

protected. The trial court accepted his objection, at least partially, and instructed the 
14

failure to raise such arguments with the trial court deprives that court of the 

opportunity to remedy the error before or during trial. See Puckett v. United States, 

556 U.S. 129, 134 (2009) (describing the justifications for the plain-error rule). We 

redress such unpreserved errors only where the defendant proves it was not just any 

error but plain error—a “difficult” standard to meet. Greer v. United States, 593 

U.S. 503, 508 (2021) (internal quotation omitted); see Grogan v. United States, 271 

A.3d 196, 212-13 (D.C. 2022) (“If [the requirements of plain-error review] are met, 

an appellate court may exercise its discretion to notice a forfeited error . . . .”); D.C. 

Super. Ct. Crim. R. 52(b) (“A plain error that affects substantial rights may be 

considered even though it was not brought to the court’s attention.”). Because 

Mr. Keerikkattil did not present his First Amendment challenge to the jury 

instructions to the trial court, we review his claim for plain error only.

Under plain-error review, Mr. Keerikkattil must establish that (1) the trial 

court erred; (2) “the error was plain,” meaning “clear or obvious”; (3) “the error 

affected his substantial rights”; and (4) “the error seriously affect[ed] the fairness, 

 

jury not to consider the fact of the lawsuit or statements made in court, although it 

could consider communications directed to participants in the lawsuit. This First 

Amendment argument, however, is distinct from the argument Mr. Keerikkattil 

presses on appeal, and Mr. Keerikkattil does not argue in this court that he preserved 

his current First Amendment argument.
15

integrity, or public reputation of judicial proceedings.” Grogan, 271 A.3d at 212-13

(internal quotations omitted).

Although Mr. Keerikkattil does not dispute that he forfeited his First 

Amendment argument in the trial court, he contends we must review the issue for 

structural error. We disagree.

Structural errors are those that “affect[ ] the framework within which the trial 

proceeds, rather than simply [ ] error[s] in the trial process itself.” Arizona v. 

Fulminante, 499 U.S. 279, 310 (1991). Structural errors entitle a defendant to 

automatic reversal because errors that undermine “the framework within which the 

trial proceeds” create “structural defects” that “defy analysis by ‘harmless-error’ 

standards.” Id. at 309. Structural-error review and plain-error review are not 

mutually exclusive. When an error is subject to both plain-error review (because it 

was unpreserved) and structural-error review, the third prong of plain-error 

analysis—whether the error affected the defendant’s substantial rights—essentially 

falls out of the picture. See Arthur v. United States, 986 A.2d 398, 413 (D.C. 2009)

(“[I]f [an error] is structural in nature, the defendant’s substantial rights will be 

deemed to have been affected, without need for further analysis in the context of the 

particular trial.”); see also Johnson v. United States, 520 U.S. 461, 468-69 (1997) 

(acknowledging, without resolving, petitioner’s argument that a structural error 
16

necessarily affects substantial rights); Barrows v. United States, 15 A.3d 673, 680 

(D.C. 2011) (holding that although a structural error necessarily satisfies the third 

prong of plain-error review, a structural error “is not,” by itself, “enough for a court 

to conclude that the fourth prong is satisfied”).

In our view, the alleged error in this case is not structural. The Supreme Court 

has identified three categories of cases that involve structural errors: (1) cases 

involving the violation of a right “not designed to protect the defendant from 

erroneous conviction but instead protect[ ] some other interest”; (2) cases 

concerning errors with effects that “are simply too hard to measure”; and (3) cases 

with errors that “always result[ ] in fundamental unfairness.” Weaver v. 

Massachusetts, 582 U.S. 286, 294-96 (2017) (“These categories are not rigid. In a 

particular case, more than one of these rationales may be part of the explanation for 

why an error is deemed to be structural.”). Mr. Keerikkattil contends that this case 

falls within the third category: errors that “result[ ] in fundamental unfairness.” Id.

at 296. We are not convinced.

An instructional error like the one at issue here, even one involving a 

constitutional right, does not “always result[ ] in fundamental unfairness.” Id.

Instructional errors are structural only if they “‘vitiate[ ] all the jury’s findings’ and 

produce[ ] ‘consequences that are necessarily unquantifiable and indeterminate.’” 
17

Neder v. United States, 527 U.S. 1, 11 (1999) (citation omitted) (quoting Sullivan v. 

Louisiana, 508 U.S. 275, 281 (1993)) (reviewing the trial court’s omission of an 

essential element of the offense for harmless error rather than structural error); 

accord Hedgpeth v. Pulido, 555 U.S. 57, 58, 60-61 (2008) (per curiam) (applying 

harmless-error review to a trial court’s instruction to a jury that it could convict the 

defendant based on an invalid theory of guilt and noting that “constitutional errors 

can be harmless”). Here, many of the jury’s findings could remain intact

notwithstanding the error. For example, findings relating to content-neutral speech, 

conduct, or speech that falls within a categorical exception would not run afoul of 

Mashaud. See Mashaud, 295 A.3d at 1144, 1160-61. What would have happened 

in a counterfactual world without the alleged error, therefore, is not “necessarily 

unquantifiable and indeterminate.” Neder, 527 U.S. at 11 (internal quotation 

omitted). We can evaluate the counterfactual by considering what a jury would have 

done if confined only to the permissible evidence. See, e.g., Blades v. United States, 

200 A.3d 230, 242-43 (D.C. 2019) (analyzing the effect that inadmissible evidence 

had on the jury and concluding that the introduction of the inadmissible evidence 

“was harmless beyond a reasonable doubt”). This case is thus a far cry from the kind 

of instructional error that might result in automatic reversal, such as instructing a 

jury that it need not find guilt beyond a reasonable doubt. See Sullivan v. Louisiana, 
18

508 U.S. 275, 281-82 (1993). The alleged error here is not structural, and 

Mr. Keerikkattil must establish all four prongs of plain error.

2. The Instructional Error Did Not Affect Mr. Keerikkattil’s

Substantial Rights

We hold that the trial court did not plainly err because, although the failure to 

provide the jury instruction at issue was erroneous, and that error was plain, it did 

not affect Mr. Keerikkattil’s substantial rights.

On the first prong of plain-error review, the trial court erred because its failure 

to instruct the jury regarding exceptions to First Amendment protection conflicted 

with the standard set forth in Mashaud. In Mashaud, we held that where the alleged 

course of conduct establishing criminal stalking involves the content of speech, that 

speech must fall within a categorical exception to the First Amendment’s protection. 

See 295 A.3d at 1144. The jury instructions in this case included no such limitations. 

The court instructed the jury that it need only find that Mr. Keerikkattil used “text[s], 

mail, instant messag[es], or . . . a website” to “follow, monitor, threaten or 

communicate to or about [S.S.]” in a way “he should have known” “would cause a 

reasonable person in [S.S.]’s circumstances to” “fear for her safety or the safety of 

another”; “feel seriously alarmed, disturbed or frightened”; or “suffer emotional 

distress.” The court did not instruct the jury that it needed to find that 

Mr. Keerikkattil’s speech constituted a “threat[ ], obscenity, defamation, fraud, 
19

incitement, [or] speech integral to criminal conduct.” Id. The instructions thus 

permitted the jury to consider a wide range of constitutionally protected 

communications that Mashaud placed outside the realm of consideration in stalking

cases. See id.

That error also was plain, satisfying the second prong of plain-error review. 

The error may not have been obvious at the time of trial because we had not yet 

decided Mashaud. Nevertheless, we assess whether an error is plain based on the

state of the law at the time of review, not the time of trial. See Henderson v. United 

States, 568 U.S. 266, 277 (2013) (“Thus, in the direct appeals of cases that are not 

yet final, we consider the ‘time of review’ interpretation the better reading of 

Rule 52’s words ‘plain error.’”); accord Muir v. District of Columbia, 129 A.3d 265, 

274 (D.C. 2016) (“Henderson’s analysis of the plain error doctrine is persuasive, and 

because Superior Court Rule of Criminal Procedure 52(b) is derived from Federal 

Rule of Criminal Procedure 52(b) and identical to it in all material respects, we have 

every reason to follow Henderson and construe our Rule consistently.”). Now, at 

the time of our review, Mashaud is the law, and it clearly establishes that a jury may 

find stalking based on a course of conduct involving the content of speech only if 

that speech falls within a categorical exception. 295 A.3d at 1144. The trial court’s 

failure to instruct the jury as much constitutes clear or obvious error.
20

The United States resists this conclusion. It argues that the court did not err, 

or at least not clearly so, even under Mashaud because the conduct upon which the 

government relied at trial either (1) did not involve protected speech (or speech at 

all) or, if it did, (2) fell within a categorical exception. We are not persuaded.

First, even though some of the evidence the government relied on did not 

involve speech, that fact does not absolve the instructional error with respect to other 

occasions involving speech. Most of the government’s evidence at trial involved 

Mr. Keerikkattil’s text messages, emails, and letters. The government suggests that 

even if some of the conduct involved speech, much of that speech is not plainly 

protected by the First Amendment because it involved merely private 

communications.

3

 In our view, this argument misframes the analysis. The ultimate 

question is not whether the consideration of the speech violates the First Amendment 

but rather whether it runs afoul of the saving construction of Section 22-3133 we 

crafted in Mashaud. Mashaud did not bless the statute’s application in every 

 

3 We note that the government “[can]not generally prohibit or punish, in its 

capacity as sovereign, speech on the ground that it does not touch upon matters of 

public concern.” Engquist v. Or. Dep’t of Agric., 553 U.S. 591, 600 (2008); see 

Connick v. Myers, 461 U.S. 138, 147 (1983) (“We in no sense suggest that speech 

on private matters falls into one of the narrow and well-defined classes of expression 

which carries so little social value, such as obscenity, that the State can prohibit and 

punish such expression by all persons in its jurisdiction.”). Speech on matters of 

private concern retains First Amendment protection, even if that protection is “often 

less rigorous.” Snyder v. Phelps, 562 U.S. 443, 452 (2011).
21

situation that would pass strict scrutiny or some other constitutional test. Indeed, the 

court explicitly rejected such an interpretation because it would “walk[ ] right into a 

different and equally devastating constitutional problem,” Mashaud, 295 A.3d at 

1162: it would be unconstitutionally vague, see id. Instead, Mashaud established a 

specific test for which kinds of speech could fall under the statute. The speech either 

must violate the statute without any need to look at its content, or it must fall within 

a categorical exception such as defamation or true threats of violence. See id. at 

1159-61. In this case, the government relied on the content of the speech in 

Mr. Keerikkattil’s text messages, emails, and letters, and, as a result, that speech 

must fit within a categorical exception to comply with Mashaud.

That brings us to the government’s second argument. It argues that the speech 

at issue in this case does, in fact, fall within various categorical exceptions and thus 

comports with Mashaud. The problem with this argument, however, is that whether 

the speech fits within a categorical exception involves, in part, factual 

determinations that the jury needed to make.

Consider, for example, the government’s argument that the July 6 email to 

S.S. and other Deloitte employees and the September 29 letter to the IRS constitute 

defamation. Maybe so, but whether speech constitutes defamation, or falls within 

any other categorical exception, is not a purely legal question for a court to 
22

determine—although the trial court could, in some cases, conclude as a matter of 

law that the speech did not fall within a categorical exception. Defamation requires 

proof that, among other things, the victim was harmed by the defamatory statements. 

Oparaugo v. Watts, 884 A.2d 63, 76 (D.C. 2005) (listing the elements of 

defamation). That is a question of fact, which in this case would have turned on, for 

example, whether the jury believed S.S.’s testimony about the anguish the letter and 

email wrought. The jury instructions, however, did not require the jury to find that 

Mr. Keerikkattil’s conduct actually harmed S.S., only that he “should have known 

his conduct would cause a reasonable person in [S.S.]’s circumstances” harm. The 

absence of a harm instruction ordinarily would pose no issue because D.C. Code 

§ 22-3133 does not require injury. But defamation does. If the government believes 

that the letter and email constituted defamation, then the failure to instruct the jury 

that it needed to find that those communications injured S.S. was error.4

 

4 D.C. law may not define defamation conterminously with the constitutional 

categorical exception. In other words, the contours of D.C. defamation law may 

differ from those of the First Amendment’s categorical exception for defamatory 

speech. Presumably, the defamation laws of the fifty states (and the District) vary, 

but the First Amendment speaks with a single voice. As a result, the categorical 

exception may be broader than D.C. defamation law, and some speech might fall 

within that categorical exception even if a defendant would not be liable for 

defamation under D.C. law. Cf. United States v. Alvarez, 567 U.S. 709, 718-19

(2012) (plurality opinion) (discussing some of the contours of the categorical 

exception for defamation). We understand Mashaud to be referring to this 

categorical exception—as opposed to specifically D.C.’s defamation law—because 
23

Although the trial court erred, and that error was clear or obvious, the 

government’s aforementioned arguments—that the jury could have considered at 

least some of the evidence and would have found Mr. Keerikkattil guilty anyway—

are relevant to the substantial-rights prong of plain-error review, to which we now 

turn. We hold that the instructional error did not affect Mr. Keerikkattil’s substantial 

rights. An error affects substantial rights if the defendant shows “a reasonable 

probability of a different outcome but for the established error.” Geter v. United 

States, 306 A.3d 126, 139 (D.C. 2023) (internal quotation omitted). The standard 

requires “[m]ore than a mere possibility of prejudice”; the error must “undermine[ ] 

confidence in the trial’s outcome.” Id. at 140 (internal quotation omitted).

In the context of this case, Mr. Keerikkattil must establish a reasonable 

probability that, if a Mashaud-based instruction had been provided,5 the jury would 

 

it was grounded in First Amendment principles. In this case, however, we need not 

delve into whether and where the categorical exception and D.C. law differ because 

the government relies on the definition in D.C. defamation law in its briefs to this 

court.

5 Mr. Keerikkattil does not propose any particular instruction beyond arguing 

that the jury should have been instructed in a manner consistent with Mashaud’s 

narrowing of the stalking statute, presumably as a part of the court’s final jury 

instructions articulating the elements of stalking. He does not further argue that any 

particular evidence should have been excluded or should have been accompanied by 

a limiting instruction restricting its usage and consideration in any particular way. 

We can imagine a number of difficult questions that might arise had such arguments 

been preserved and argued before us. But they have not been, and we will not 

manufacture them on our own—particularly on plain-error review.
24

not have found that on at least two occasions he knew or should have known that his 

intentional conduct would cause S.S. emotional distress. At trial, the government 

relied on nine occasions: (1) the June 28 litigation-hold email to Mr. Rajan and S.S. 

alleging an inappropriate workplace relationship between the two; (2) the July 6 

email to S.S. and other Deloitte employees accusing her of, among other things, 

blatant fraud; (3) the July 28 email to S.S. warning her that she might end up paying 

damages for the rest of her life unless she told the truth; (4) the August sighting at 

the café near Deloitte’s office; (5) the September letter to the IRS alleging S.S. had 

been fired for illegal drug use; (6) the October 1 text messages blaming S.S. for 

ruining Mr. Keerikkattil’s life and pledging to fight back; (7) the October 9 text 

messages promising revenge; (8) the October 24 visit to S.S.’s parents; and (9) the 

text messages Mr. Keerikkattil sent after visiting S.S.’s parents. We must determine 

whether there exists a reasonable probability that if the jury had been presented with 

only the subset of this evidence that it could properly consider under Mashaud, it 

would have reached a different result. Although the government pressed all nine

occasions at trial, a conviction requires only two occasions, and we focus our 

analysis on the final two occasions: the Oregon trip and the subsequent text 

messages.

Before conducting this analysis, we note that our blindness to the content of 

speech applies only to the speech being regulated. We may consider the content of 
25

other communications as evidence that informs our conclusions about whether the 

actus reus conduct at issue was likely to cause S.S. emotional distress. See Wisconsin 

v. Mitchell, 508 U.S. 476, 489 (1993) (“The First Amendment . . . does not prohibit 

the evidentiary use of speech to establish the elements of a crime or to prove motive 

or intent. Evidence of a defendant’s previous declarations or statements is 

commonly admitted in criminal trials subject to evidentiary rules dealing with 

relevancy, reliability, and the like.”); United States v. Kaziu, 559 F. App’x 32, 35 

(2d Cir. 2014) (nonprecedential) (affirming a conviction for distributing material in 

support of a foreign terrorist organization because the defendant’s “political beliefs 

were introduced to prove the mens rea element of the charged crimes” and the 

evidence “was admitted not as inherently criminal conduct, but as proof that [the 

defendant] knowingly and intentionally committed the charged offense”); see also 

United States v. Stewart, 686 F.3d 156, 161-62, 171 & n.17 (2d Cir. 2012) (holding 

that the defendant’s confession was not regulated speech in a prosecution about 

whether other communications had violated “Special Administrative Procedures” 

that she had agreed to and analogizing the argument to one that the use of a 

murderer’s confession would violate the First Amendment). Given that we are 

analyzing the government’s evidence as if the only “occasions” for purposes of the 

criminal course of conduct were the Oregon trip and subsequent text messages, 

consideration of the content of other communications as context for these 
26

communications does not trigger First Amendment scrutiny because the other 

communications are not themselves being regulated. Consequently, we may 

consider, as a jury may have considered, the content of Mr. Keerikkattil’s prior 

communications to determine the potential for the Oregon trip and the subsequent 

text messages to inflict emotional distress on someone in S.S.’s circumstances.

The first occasion we consider in Mr. Keerikkattil’s course of conduct is the 

Oregon trip. Although the trip was an indirect communication to S.S. because it 

conveyed a message to her, see D.C. Code § 22-3132(3) (defining communicating), 

Mr. Keerikkattil does not argue that the jury could not consider this expressive 

conduct. Nor does he address whether the expressive aspects of the trip are severable 

from the conduct such that the jury could consider the conduct without infringing on 

the expression. Instead, he focuses his argument on the emails, letters, and text 

messages he sent. Under plain-error review, the burden fell on Mr. Keerikkattil to 

show that consideration of the Oregon trip was erroneous. See Geter, 306 A.3d at 

131. By failing to argue the point, he has not carried his burden.

Mr. Keerikkattil should have known that the trip would cause someone in 

S.S.’s circumstances emotional distress. Mr. Keerikkattil flew across the country 

and then drove over three hours from the airport to the house of S.S.’s parents. S.S. 

had never told Mr. Keerikkattil where her parents lived, and he had never met them. 
27

Mr. Keerikkattil’s trip conveyed both the lengths to which he was willing to go to 

hurt S.S. as well as a suggestion that his retributive efforts might reach her loved 

ones too. As S.S. testified, she understood perfectly the message Mr. Keerikkattil 

was sending her, and she found it “very alarming.”

The second occasion we consider is the series of text messages 

Mr. Keerikkattil sent S.S. after his Oregon trip, looking not to their content but only 

to the fact of their communication, which Mashaud allows. Our decision in 

Mashaud did not reach all aspects of communication. Beyond permitting the statute 

to cover speech within the categorical exceptions to First Amendment protection, 

Mashaud also left intact Section 22-3133’s regulation of communications that do not 

turn on the communications’ content. See id. at 1160-61 (distinguishing cases that 

did not “depend[ ] on the sort of content-based speech restriction that would be 

excluded from the stalking statute’s scope under the construction we adopt”); see 

also Atkinson v. United States, 121 A.3d 780, 782-83 (D.C. 2015) (involving “backto-back” calls “throughout the evening” and “into the early morning hours” and 

continued outreach after being repeatedly told to cease contact); Whylie v. United 

States, 98 A.3d 156, 161 (D.C. 2014) (concerning “thousands of phone calls” to the 

victim over the course of a month and, for a separate count, 800 calls that violated a 

no-contact order). If the stalking stemmed from the mere fact of communication, as 

opposed to the contents of the communication, Mashaud’s saving construction of 
28

Section 22-3133 poses no barrier. See Mashaud, 295 A.3d at 1160-61 (“[I]t is only 

when a stalking charge depends on the content of one’s speech that our narrow 

interpretation of the statute’s application to speech comes into play.”); Counterman 

v. Colorado, 600 U.S. 66, 86 (2023) (Sotomayor, J., concurring) (“The content of 

the repeated communications can sometimes be irrelevant, such as persistently 

calling someone and hanging up, or a stream of utterly prosaic communications.” 

(internal quotation omitted)). A jury may consider the act of sending the 

communication—but not what lay within the communication—as part of a “course 

of conduct” that the defendant “should have known” would inflict “emotional 

distress” upon the victim. D.C. Code § 22-3133; see Mashaud, 295 A.3d at 1160-61.

The mere fact of sending a few text messages might not ordinarily amount to 

criminal stalking. In this case, however, context proves otherwise. To be sure, “to 

trigger criminal liability, the level of fear, alarm, or emotional distress must rise 

significantly above that which is commonly experienced in day to day living and 

must involve a severe intrusion on the victim’s personal privacy and autonomy.” 

Coleman v. United States, 202 A.3d 1127, 1146 (D.C. 2019) (brackets, citation, and 

internal quotations omitted); see D.C. Code § 22-3132 (“‘Emotional distress’ means 

significant mental suffering or distress that may, but does not necessarily, require 

medical or other professional treatment or counseling . . . .”). In our view, the fact 
29

of communication from Mr. Keerikkattil’s October 24 text messages satisfies that 

threshold.

Mr. Keerikkattil’s relationship with S.S. had already deteriorated before he 

sent the texts. Mr. Keerikkattil himself had demanded in a cease and desist letter 

that S.S. “refrain from contacting [him] except for legitimate business needs of 

Deloitte LLP”; S.S. had filed a formal complaint against Mr. Keerikkattil at Deloitte;

and S.S.’s lawyer had “instructed” Mr. Keerikkattil “to direct any communications 

intended for [S.S.], regardless of subject matter or context, exclusively to [the 

lawyer] or [their] designee(s).” Mr. Keerikkattil had sent letters and emails to S.S.’s 

employer and a government agency trying to get her fired and suggesting that she 

might face criminal liability. Mr. Keerikkattil had also texted S.S. and threatened to 

“fight” her, accused her of making his “life hell,” and told her he planned to “fuck 

up [her] life.” On top of all of this, the October 24 text messages arrived on the heels 

of Mr. Keerikkattil’s Oregon trip, which imparted its own menacing message. On 

that same day, Mr. Keerikkattil sent S.S. six new text messages.6

 This after S.S. had 

declined to respond to any of Mr. Keerikkattil’s text messages over the last few 

 

6 Mr. Keerikkattil has not argued that the Oregon trip and the subsequent text 

messages should be considered as a single occasion because they occurred on the 

same day. See D.C. Code § 22-3133(c) (“Where a single act is of a continuing 

nature, each 24-hour period constitutes a separate occasion.”). We thus express no 

view on whether the Oregon trip and subsequent texts constituted “a single act of a 

continuing nature.” Id.
30

months—except on one occasion to ask who was texting her when he reached out 

from a new number. The combination of (1) explicit instructions not to contact S.S., 

(2) Mr. Keerikkattil’s declared intent to “fight” S.S. and “fuck up [her] life,”

(3) Mr. Keerikkattil’s prior efforts to sabotage S.S. through reports to her superiors 

and the IRS, and (4) the recent Oregon trip convinces us that Mr. Keerikkattil should 

have known that the mere fact of additional communication was likely to instill 

emotional distress in S.S. At this point, each new communication from 

Mr. Keerikkattil—irrespective of its content—reflected another intrusion into S.S.’s

life from which she could not escape. The harm from the fact of communication in 

these text messages thus rose above “that which is commonly experienced in day to 

day living” and crossed into “a severe intrusion on a victim’s personal privacy and 

autonomy.” Coleman, 202 A.3d at 1146.

We discern no reasonable probability that the jury would have reached a 

different conclusion if it considered only the harm inflicted by the Oregon trip and 

the fact of communication from the following text messages. Although the 

government presented more occasions at trial, it was required to prove only two 

occasions in which Mr. Keerikkattil “communicate[d] to” S.S. in a manner he should 

have known was likely “to cause a reasonable person in [her] circumstances” to 

“[s]uffer emotional distress.” D.C. Code §§ 22-3132(8)(A), -3133(a)(3). 

Accordingly, we hold that the trial court did not plainly err, because the error did not 
31

affect Mr. Keerikkattil’s substantial rights. See D.C. Super. Ct. Crim. R. 52(b) 

(defining plain error as errors that “affect[ ] substantial rights”).7

B. Sufficiency of the Evidence

Next, Mr. Keerikkattil argues that the government presented insufficient 

evidence for the jury to convict him of stalking. Our conclusion that the government 

presented sufficient evidence to support the conviction follows from our conclusion 

above that the instructional error did not affect Mr. Keerikkattil’s substantial rights,

because there was other evidence to support a conviction.

When reviewing for sufficiency of the evidence, this court “view[s] the 

evidence in the light most favorable to the government, giving full play to the right 

of the fact-finder to determine credibility, weigh the evidence, and draw justifiable 

inferences of fact, and [we] mak[e] no distinction between direct and circumstantial 

evidence.” White v. United States, 207 A.3d 580, 587 (D.C. 2019) (internal 

quotation omitted). This court will affirm “if any rational fact-finder could have 

found the elements of the crime beyond a reasonable doubt.” Id. (internal quotation 

omitted). Sufficient evidence in this case requires at least two occasions that satisfy 

 

7 Because we conclude that Mr. Keerikkattil has not established that the error 

affected his substantial rights, we need not address the fourth prong of plain-error 

review.
32

Mashaud and thus could form a course of conduct directed at S.S. that 

Mr. Keerikkattil “should have known would cause a reasonable person in [S.S.’s] 

circumstances” emotional distress. See D.C. Code §§ 22-3132(8), -3133(a)(3).

As we explained above, by visiting S.S.’s parents and by texting S.S. directly 

after the visit, Mr. Keerikkattil acted in a way he “should have known would cause

a reasonable person in [S.S.’s] circumstances” emotional distress on two occasions. 

Id. § 22-3133. Based on the Oregon trip and the fact of communication from the 

subsequent text messages, we hold that the government presented sufficient 

evidence to support a conviction.

C. Jurisdiction

Mr. Keerikkattil argues that the trial court lacked jurisdiction over his case. 

He contends that the government failed to prove that any of the actions that form his 

alleged course of conduct occurred within the District of Columbia. We disagree.

1. Standard of Review and Applicable Law

We review jurisdictional questions de novo. Lucas v. United States, 305 A.3d 

774, 776 (D.C. 2023). The D.C. Council provided the Superior Court with statutory 

jurisdiction over “any criminal case under any law applicable exclusively to the 

District of Columbia.” D.C. Code § 11-923(b)(1); see also id. § 22-3135(a) 
33

(providing a potentially more permissive grant of jurisdiction in stalking cases). 

This court has long interpreted Section 11-923(b)(1) to confer jurisdiction over 

“criminal act[s]” “occur[ing] within the geographic boundaries of the District of 

Columbia.” Dobyns v. United States, 30 A.3d 155, 157 (D.C. 2011). An act occurs 

within the District if “one of several constituent elements to the complete offense” 

happened in D.C. Id. at 157-58 (internal quotation omitted).

2. The Superior Court Possessed Jurisdiction

We conclude that the Superior Court had jurisdiction over this case. For the 

reasons explained above, our decision to affirm Mr. Keerikkattil’s conviction relies 

only on the Oregon trip and subsequent text messages. The government presented 

uncontroverted evidence that S.S. learned of the Oregon trip and then received 

Mr. Keerikkattil’s text messages while she was in her D.C. apartment. Because the 

jury was required to find that Mr. Keerikkattil “directed” his communications at S.S., 

see D.C. Code § 22-3133(a), it is sufficient for purposes of jurisdiction that S.S. 

received those communications in the District. See United States v. Baish, 460 A.2d 

38, 43 (D.C. 1983) (holding that where “communication” is an “integral 

component[ ] of the offense,” “if [the communication] is heard by someone within 

the District of Columbia,” “the Superior Court properly will entertain jurisdiction 

over an ensuing prosecution” “regardless of where [the defendant] utters the 
34

[communication]”). Mr. Keerikkattil does not dispute this evidence. Accordingly, 

the Superior Court possessed jurisdiction in this case.

D. Sentencing

Finally, Mr. Keerikkattil challenges his sentencing. He does so in two ways: 

first, he argues that the trial court erred in remanding him to the Bureau of Prisons 

because he was sentenced for a misdemeanor rather than a felony; second, he argues 

that the trial court erred in sentencing him to probation over his objection.

With respect to the first argument, Mr. Keerikkattil contends that courts’ 

authority to send convicted defendants to the Bureau of Prisons derives from D.C. 

Code § 24-101, which applies exclusively to felons. See D.C. Code § 24-101. 

Mr. Keerikkattil argues that he was convicted of only a misdemeanor. The 

government does not contest this argument but submits that Mr. Keerikkattil was not 

harmed by any error. Although the trial court stated that Mr. Keerikkattil would be 

“remanded to the custody of the Bureau of Prisons” as it imposed his sentence, the 

government represents—and Mr. Keerikkattil does not dispute—that he was not 

remanded to the Bureau of Prisons but rather served his eleven months at a D.C. 

Correctional Treatment Facility.
35

We agree with the government. Even assuming the trial court erred, we hold 

that Mr. Keerikkattil was not harmed by the trial court’s order that he be remanded 

to the Bureau of Prisons because he was not, in fact, remanded to the Bureau of 

Prisons. Mr. Keerikkattil asks us to consider the error in “context with all the other 

errors that occurred,” but we fail to see how this error affected Mr. Keerikkattil in 

any respect because it affected neither the jury’s finding of guilt nor the sentence he 

actually served.

Mr. Keerikkattil’s second argument is that the trial court erred by sentencing 

him to probation over his objection. Mr. Keerikkattil was subject to a maximum 

prison sentence of twelve months of incarceration. See D.C. Code § 22-3134(a). 

But the government requested a “lengthy period of probation” in order to adequately 

“punish[ ]” Mr. Keerikkattil for his conduct. It suggested suspending one month of 

a twelve-month sentence and imposing five years of probation. Mr. Keerikkattil’s

counsel expressly objected to probation, stating that his “client is unwilling to do 

probation and [he would] be requesting . . . a 12-month sentence.” The trial court 

nevertheless accepted the government’s recommendation and imposed an elevenmonth sentence with one month suspended and five years of supervised probation.

D.C. law prohibits the imposition of probation without the defendant’s 

consent. See D.C. Code § 16-710(a) (“A person may not be put on probation without 
36

his consent.”); Jamison v. United States, 600 A.2d 65, 70-71 (D.C. 1991) (“Where 

counsel or the defendant fairly manifests an apparent objection to the probation . . . 

the trial court cannot proceed to impose probation without obtaining an explicit 

consent on the record, to ensure compliance with the command of the statute.”). 

Mr. Keerikkattil argues that because he objected to probation, the trial court could 

not sentence him to probation. The government concedes error, and we agree that,

to the extent Mr. Keerikkattil was sentenced to probation over his objection, the trial 

court erred.

Despite conceding error on the merits, the government argues that we should 

not consider Mr. Keerikkattil’s argument in the first place, because he raised it solely 

in a Rule 28(k) letter submitted after he filed his opening brief. Rule 28(k) letters 

are designed for the specific, and limited, purpose of apprising the court of 

“significant authorities” that have “come to a party’s attention after the party’s brief 

has been filed, or after oral argument but before decision.” D.C. App. R. 28(k). 

“The letter must state without argument the reasons for the supplemental 

citations . . . .” Id. (emphasis added). Because Mr. Keerikkattil’s letter included an 

argument, the government urges us to ignore it as improper.

We agree that, in general, parties may not exploit Rule 28(k) by raising new 

arguments outside their briefs, particularly when those arguments do not rely on 
37

subsequent legal authority. See United States v. Jones, 308 F.3d 425, 427 n.1 (4th 

Cir. 2002) (declining to consider an argument raised for the first time in a Rule 28(j) 

letter and holding that “[b]ecause this argument was not presented in [appellant’s] 

opening brief, it is waived”); United States v. Nason, 9 F.3d 155, 163 (1st Cir. 1993) 

(“[Appellant] did not make this argument in his brief, and a letter submitted pursuant 

to [R]ule 28(j) cannot raise a new issue.” (alteration in original) (internal quotation 

omitted)); Valdez v. Mercy Hosp., 961 F.2d 1401, 1404 (8th Cir. 1992) (agreeing 

with appellee that Rule 28(j) cannot be used “to raise an entirely new issue that might 

have been raised long before the case was submitted”).

8

 The reason for this general 

 

8 We consider federal courts’ interpretations of Fed. R. App. P. 28(j) before 

December 2002 as persuasive authority with respect to interpreting D.C. App. 

R. 28(k). “When a local rule and a federal rule are identical, or nearly so, we will 

construe the local rule in a manner consistent with the federal rule to the extent 

possible under binding precedent . . . .” Wendemu v. Tesema, 304 A.3d 953, 961 n.4 

(D.C. 2023) (quoting Montgomery v. Jimmy’s Tire & Auto Ctr., Inc., 566 A.2d 1025, 

1027 (D.C. 1989)) (looking to federal-court decisions to aid in interpreting D.C. 

Super. Ct. Civ. R. 30(c)(2) and (d)(2)). Before December 2002, Fed. R. App. 

P. 28(j) essentially mirrored the current D.C. App. R. 28(k). Compare D.C. App. 

R. 28(k), with Fed. R. App. P. 28(j) (2001). In December 2002, however, the 

Supreme Court amended Fed. R. App. P. 28(j) to omit the phrase “without 

argument” and replaced it with a 350-word limit for supplemental-authority letters, 

see Fed. R. App. P. 28(j) (2002), “in part because of the difficulty distinguishing” 

between arguments and reasons for the supplemental citation. Fed. R. App. P. 28 

advisory committee note to the 2002 amendment. Despite the 2002 amendments, 

federal courts continue to disapprove of new arguments raised in Rule 28(j) letters, 

at least without some intervening change in law. See, e.g., United States v. Ashford, 

718 F.3d 377, 381 (4th Cir. 2013) (“We do not countenance a litigant’s use of 

Rule 28(j) as a means to advance new arguments couched as supplemental 

authorities.”); Niemi v. Lasshofer, 728 F.3d 1252, 1262 (10th Cir. 2013) (Gorsuch, 
38

rule is that allowing parties to raise additional arguments after briefing denies the

opposing party an opportunity to respond and thus deprives the court of the full 

benefit of the adversarial process. See S.C. Elec. & Gas Co. v. Interstate Com. 

Comm’n, 734 F.2d 1541, 1546 (D.C. Cir. 1984) (declining to consider a Rule 28(j) 

letter that raised an argument “to which respondent and intervenor have no 

opportunity to reply” and characterizing the letter as a “strategy” used “to 

supplement [petitioner’s] argument”); see also Ashford, 718 F.3d at 381 (“Indeed, 

considering an argument advanced for the first time in a Rule 28(j) filing is not only 

unfair to the appell[ant], it also creates the risk of an improvident or ill-advised 

opinion being issued on an unbriefed issue.” (internal quotation omitted)); Niemi, 

728 F.2d at 1262 (“[A]llowing Rule 28(j) letters to be used to introduce any sort of 

new issue after briefing is complete [ ] risks leaving opponents with no opportunity 

(at least if they abide the rules of appellate procedure) for a proper response; it risks 

an improvident opinion from this court by tasking us with the job of issuing an 

opinion without the full benefits of the adversarial process; and it invites an unsavory 

degree of tactical sandbagging by litigants in future cases . . . .”).

 

J.) (“The proper function of Rule 28(j) letters, after all, is to advise the court of ‘new 

authorities’ a party has learned of after oral argument, not to interject a long available 

but previously unmentioned issue for decision.”).
39

In our view, the reasons courts typically ignore new arguments raised without 

cause in supplemental-authority letters apply with negligible force in this case. Two

considerations combine to convince us that, under the circumstances here, we need 

not blind ourselves to Mr. Keerikkattil’s admittedly improperly raised argument. 

First, the government suffered no prejudice. Mr. Keerikkattil filed the Rule 28(k) 

letter months before the United States submitted its response brief and a week before 

the government successfully moved to extend its time to file that brief. The 

government had ample opportunity to respond to the argument in its response brief, 

and it took advantage of that opportunity. We thus enjoy the benefit of the 

government’s full response. Second, the merits are straightforward. The 

government conceded error. As a result, fear of incorrectly resolving the merits of 

the issue need not hold us back.

To be sure, Mr. Keerikkattil should have moved either to amend his opening 

brief or to file a supplemental brief. Cf. Spiegla v. Hull, 481 F.3d 961, 965 (7th Cir. 

2007) (approving the use of a request for additional briefing to discuss a new issue). 

We decline, however, to apply Rule 28(k) so rigidly as to ignore an uncontested issue 

that the opposing party had an opportunity to brief. Because we hold that the trial 

court erred in sentencing Mr. Keerikkattil to probation over his opposition, we 

remand for it to impose a new sentence consistent with this opinion.
40

III. Conclusion

For the foregoing reasons, we affirm Mr. Keerikkattil’s conviction and 

remand for the trial court to resentence him consistent with this opinion.

So ordered.