# Powell v. United States

> District of Columbia Court of Appeals · October 31, 1996 · 684 A.2d 373

URL: https://www.frixlaw.com/law-library/cases/9752656

## Case

- **Full name:** Andre D. POWELL, Appellant, v. UNITED STATES, Appellee
- **Court:** District of Columbia Court of Appeals
- **Decided:** October 31, 1996
- **Citations:** 684 A.2d 373; 1996 D.C. App. LEXIS 227; 1996 WL 628214
- **Precedential status:** Published
- **Opinion:** Concurrence by King
- **Judges:** Wagner, Steadman, King
- **Cited by:** 11 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9752656

## Opinion text

KING, Associate Judge,
concurring:
In Wright v. United States, 588 A.2d 260 (D.C.1991), we renounced a long-standing principle of law relating to the instruction to be given when a jury is called upon to decide a case involving both the charged offense and a lesser included offense. 1 When Wright was tried, the standard instruction, 2 known as the “acquittal first” instruction, informed the jury that it should consider the lesser offense only if it found that the government had failed to prove beyond a reasonable doubt each and every element of the greater offense, ie., only if the jury acquitted the defendant of the greater offense. At his trial, however, Wright requested the so-called “reasonable efforts” instruction which would inform the jury that it could consider the lesser offense if it was unable to reach a verdict on the greater offense and if it had made reasonable efforts to reach a verdict on the greater offense. The trial court denied Wright’s request and gave the acquittal first instruction. Wright was convicted of the greater offense and he appealed.
In holding that the trial court erred in refusing to give the reasonable efforts instruction, the Wright court acknowledged that the acquittal first instruction was the standard instruction “used in this jurisdiction for many years.” Id. at 261 . It also acknowledged that the instruction conformed “to the procedure approved by this court and the District of Columbia Circuit when greater and lesser included offenses are charged.” Id. 3 Finally the Wright court observed that the acquittal first instruction was not “wrong as a matter of law.” Id. at 262 (citing United States v. Tsanas, 572 F.2d 340, 346 , (2d Cir.), cert. denied, 435 U.S. 995 , 98 S.Ct. 1647 , 56 *384 L.Ed.2d 84 (1978)). Nonetheless, the court held that, if the defense requests the reasonable efforts instruction as part of the original jury charge, the court must give that instruction rather than the acquittal first instruction. In my view this court went astray in ruling as it did on this issue.
The Wright court principally relied upon two cases, one decided by this court three years earlier and a federal court of appeals case that had been decided thirteen years earlier. See (Nathan) Jones v. United States, 544 A.2d 1250 (D.C.1988); Tsanas, supra, 572 F.2d at 340 . In Jones the trial court gave the acquittal first instruction in its initial charge and again, over defense objection, after the jury announced it was deadlocked on the greater charge. On appeal from a conviction of the greater offense, this court held that the trial court erred in giving the acquittal first instruction over defense objection after the jury had deadlocked. Although it left open the question concerning the instruction to be given in the initial charge to the jury, this court, for the first time, questioned the propriety of the acquittal first instruction. In the course of its discussion of this point, the court cited the cases cited three years later by the Wright court, specifically, Butler, Towles, and Fuller, but concluded that while those cases held that a guilty verdict on the greater offense precluded consideration of the lesser offense, those cases did not “require an acquittal of the greater offense before a lesser offense may be considered.” Jones, supra, 544 A.2d at 1252 .
The Wright court also relied on the Tsanas case which discussed at considerable length the advantages and disadvantages, for both the government and the defense, of both the acquittal first and the reasonable efforts instructions. That same discussion is repeated, in large part, in Wright and will not be recounted here. The Tsanas court concluded that “we cannot say that either form of instruction is wrong as a matter of law,” id. at 346 , a proposition endorsed in Wright, 588 A.2d at 262 . The Tsanas court then held that the trial court should give the instruction elected by the defense, a course that has been described by another state court as the “optional approach.” Tsanas, supra, 572 F.2d at 346 ; see State v. Sawyer, 227 Conn. 566 , 630 A.2d 1064, 1069 (1993). The only explanation given for adopting the optional approach was the assertion that the defense should be permitted to decide which instruction should be given because it is the defendant’s “liberty that is at stake.” Tsanas, supra, 572 F.2d at 346 . Relying on Tsanas , we gave essentially the same reason in Wright for holding that the defense should have the right to determine which of the two instructions to give. Wright, supra, 588 A.2d at 262 .
I respectfully disagree with the court’s decision in Wright for two reasons. First, my review of our precedents on this issue persuades me that the acquittal first principle was the governing law in this jurisdiction when Wright was decided, that the principle unmistakably had been laid down in Fuller, and no division of this court was authorized to hold otherwise in light of M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C.1971). Second, assuming we were writing on a clean slate and were free to choose between acquittal first and the optional approach, I submit, given our long and unremarked history with the former, in contrast to the controversy and uncertainty that has been prompted by our adoption of the latter, 4 that acquittal first is the preferable course. I also find convincing the Supreme Court of Connecticut’s recent rejection of the optional approach. That court observed:
The jury instruction to be given at the conclusion of a trial ... is a question of law that cannot be resolved by deference to the wish of the defendant or by a sporting theory of justice. See State v. Ferreira, 8 Haw.App. 1 , 791 P.2d 407, 409 , cert. denied, 71 Haw. 668 , 833 P.2d 901 (1990); State v. Labanowski, 117 Wash.2d 405, 422 , 816 P.2d 26 (1991). A criminal trial is not a game of chance. Allowing the defendant to choose the transitional instruction *385 and to gamble on its consequences slights the desirable goals of thorough deliberations and finality and neglects the state’s interest in the resolution of the charges on which it presented the defendant. See People v. Boettcher, 69 N.Y.2d 174,181-84 , 513 N.Y.S.2d 83 , 505 N.E.2d 594 (1987). Such an approach to transitional instructions is dictated more by expediency than by a commitment that justice be done to both the state and the defendant, and that the charges brought be thoroughly deliberated, considered and disposed of definitively. See Uniform Rules of Criminal Procedure 535(b), comments, 10 U.L.A. 281-82 (1974) (unanimity requirement leads to more thorough consideration of issues and more careful deliberation).
Sawyer, supra, 630 A2d at 1071 . It is for these reasons that I would not abandon an instructional practice, ie., the giving of the acquittal first instruction, that had been in place, without any controversy or any claim of unfairness for some years, even if we were free to do so.
Reasonable people, of course, can differ, as demonstrated by the different results reached in Tsanas and Sawyer , on which approach is preferable. I will not address that question further, however, because there is a far more fundamental ground for concluding that the Wright court erred when it adopted the Tsanas optional approach, viz, because there was binding contrary precedent, the Wright court was without authority to make such a ruling.
I think it clear, for the reasons stated below, that the United States Court of Appeals in Fuller v. United States, supra, authoritatively ruled in 1968 that the acquittal first instruction was the governing principle of law where lesser included offenses were involved. The same point was made, although not forcefully and with no analysis, by the government in Wright . In its brief for that case, the government cited generally to Fuller, but relied on language from one of our own cases, arguing that “in its initial charge to the jury, ‘the proper course is for the trial judge to instruct the jury first to consider the greater offense and then consider the lesser offense, only if reasonable doubt exists concerning the accused’s guilt of the greater offense.’ Towles v. United States, 496 A.2d 560, 565 (D.C.1985) (emphasis in original), aff'd, 521 A.2d 651 (1987) (en banc), cert. denied, 483 U.S. 1008 , 107 S.Ct. 3236 , 97 L.Ed.2d 741 (1987).” 5 Wright contended in his reply brief that the quoted passage from Towles was dictum and, therefore, not binding on the court, 6 an argument not without force if there is no reference back to Fuller. The Wright court, without formally saying whether the quoted language from Towles was, or was not binding, concluded that the cases cited by the government did not require the giving of the acquittal first instruction in the initial charge where the defense objects. Wright, supra, at 261 .
In Wright , the court was not urged by the government to closely examine Fuller, and the court gave no indication that it did so. The Wright court, however, relied heavily upon the opinion in Tsanas , which directly addressed the implications of Fuller. The Tsanas court concluded that some of the language in Fuller was ambiguous, and that even if the language could be construed as requiring acquittal first, it was doubtful that such an assertion was a “holding” of the court. I submit the Tsanas court was wrong on both counts.
In Fuller, the defendant, charged with rape and murder, was indicted in Count I for first degree felony-murder, in Count II of first degree premeditated murder, and in Count III of rape. During the course of the trial, the trial judge reduced the first degree premeditated murder charge to second degree murder. Without objection by the defense, the jury was instructed to consider first degree felony-murder (Count I), second *386 degree murder, or manslaughter as a lesser included offense of second degree murder (Count II), and rape (Count III). The jury convicted on both Counts I and III, but only convicted in Count II of manslaughter. On appeal, after the case had been considered by a division of the court, the case was set for en banc consideration on the sole question: “whether ‘the trial court committed reversible error in failing to instruct the jury that it could not convict both on Count I, charging first degree felony-murder, and on Court II, charging second degree murder (as reduced by the trial court from a charge of premeditated murder).’ ” Fuller, supra, 132 U.S.App. D.C. at 287, 407 F.2d at 1222.
The en banc court held that if the defense wants the jury to consider second degree murder as a lesser included offense of felony-murder rather than as a separate charge, it must request that the jury be instructed to that effect. Thus, the defense should request that the separate murder charge be struck and the jury informed that it should consider second degree murder only as a lesser included offense of felony-murder. Because no such instructional request was made, and because the court found no prejudice, it concluded there was no plain error. 7 Id. 132 U.S.App. D.C. at 295, 407 F.2d at 1230.
In reaching that conclusion, the court discussed, extensively, the interrelation between greater and lesser offenses and the jury’s role when called upon when considering those offenses. It began that discussion with the language the Tsanas court found to be ambiguous:
When a greater and lesser offense are charged to the jury, the proper course is to tell the jury to consider first the greater offense, and to move on to consideration of the lesser offense only if they have some reasonable doubt as to guilt of the greater offense.
Id., 407 F.2d at 1227 (emphasis added). What is the meaning of the italicized language? The Tsanas court says it can be “taken to be satisfied by a difference of opinion among the jurors.” Tsanas, supra, 572 F.2d at 344 n. 4. In other words, according to the Tsanas court, “hav[ing] some reasonable doubt” does not necessarily mean that the jury must have acquitted on that charge. Instead, the language can be construed to mean that the jury is simply unable to reach a verdict, ie., it has “some reasonable doubt.” Thus, so the argument goes, the Fuller court could have been saying that the jury may consider the lesser offense when it is unable to agree on the greater offense — essentially a reasonable efforts instruction. A careful examination of Fuller demonstrates, however, that the disputed passage (“have some reasonable doubt as to guilt”) is nothing more than shorthand for “having acquitted” of the greater offense.
I began my analysis by noting that in two separate passages later in the same opinion, the Fuller court explicitly stated that the jury should consider the lesser offense only if it acquitted of the greater. Fuller, supra, 132 U.S.App. D.C. at 295, 407 F.2d at 1230 (jury “does not even consider the issue of second degree murder unless it acquits as to first degree”); id. 132 U.S.App. D.C. at 297, 407 F.2d at 1232 (“only [after an acquittal of the greater offense] may [the jury] turn to consideration ... of the lesser offense”). These two passages, and their context, are discussed in detail infra at 389-390. Second, the Fuller court provided evidence of its understanding of the meaning of the disputed passage in a footnote at the end of the sentence which includes that passage. Id. 132 U.S.App. D.C. at 293 n. 27, 407 F.2d at 1227 n. 27. That footnote contains three separate references which, in my view, unmistakably point to the conclusion that the passage cited sounds in acquittal first tones, and nothing else. First, footnote 27 refers to United States v. White, 225 F.Supp. 514 (D.D.C.1963) which uses a similar shorthand — “not unanimously convinced” as opposed to the “have a reasonable doubt” formulation found in Fuller. In the end, however, the judge in White explained the meaning of that term, *387 ie., “not unanimously convinced” means acquittal first:
The jurors were told that if they were not unanimously convinced, that the Government had proved beyond a reasonable doubt that the defendant was guilty of first degree murder, then they should pass on to a consideration of the lesser included offense of second degree murder; and that if they were not unanimously convinced that the Government had proven beyond a reasonable doubt that the defendant was guilty of second degree murder, then they should pass on to a consideration of the second lesser included offense of manslaughter; and that if they were not unanimously convinced that the Government had proven beyond a reasonable doubt that the defendant was guilty of manslaughter, then their verdict must be not guilty. This instruction meets all of the requirements of McAffee, supra [ 105 F.2d 21 (App. D.C. 1939) ], and is far more clear than the instruction requested by defendant. Defendant therefore cannot rightly complain of the Court’s refusal to give the requested instruction.
Id. at 519 (underlining and italics added). The language underlined is essentially indistinguishable from that appearing in the Fuller passage. The italicized material at the end, however, explains the meaning of the underlined language, telling the jury that it must find the defendant not guilty when it is “not unanimously convinced” of the defendant’s guilt. In short, where the court says to the jury that if you are “not unanimously convinced that the Government has proved [the greater offense] beyond a reasonable doubt,” the court is telling the jury that you must acquit of the greater offense before you move on to consider the lesser offense.
The second reference in Fuller1 s footnote 27 is to the standard jury instruction then in use in the federal courts. The cited instruction can only be characterized as an acquittal first instruction. It provides in pertinent part:
§ 15.10 Verdict — Lesser Included Offense
The law permits the jury to find the accused guilty of any lesser offense which is necessarily included in the crime charged in the indictment, whenever such a course is consistent with the facts found by the jury from the evidence in the case, and with the law as given in the instructions of the Court.
So, if the jury should unanimously find the accused “Not Guilty” of the crime charged in the indictment, then the jury must proceed to determine the guilt or innocence of the accused as to any lesser offense which is necessarily included in the crime charged.
******
W. Mathes & E. Devitt, Federal Jury Practice and Instructions, § 15.10 at 159 (1965) (emphasis added).
Finally, in footnote 27 the court also refers to one of its previous decisions in a murder case where the jury had convicted of first degree premeditated murder, but the appellate court, holding that the evidence of premeditation and deliberation were lacking, directed the entry of a verdict for second degree murder. See Austin v. United States, 127 U.S.App. D.C. 180, 382 F.2d 129 (1967). 8 The Fuller court observed that “in light of the principle” set forth in the passage under examination here, “a verdict of murder in the second degree negatives a finding of premeditation and deliberation....” Fuller, supra, 132 U.S.App. D.C. at 292 n. 27, 407 F.2d at 1227 n. 27 (citing Austin, supra, 127 U.S.App. D.C. at 193 n. 27, 382 F.2d at 142 n. 27). This quotation, although perhaps not as clear-cut as the reference to the White case and jury instruction § 15.10, nonetheless describes the law relating to lesser included offenses that was understood to apply at the time, ie., the question of consideration of the lesser offense does not arise until there has been a finding of not guilty on the greater offense. See Green v. United States, 355 U.S. 184, 190-91 , 78 S.Ct. 221, 225-26 , 2 L.Ed.2d 199 (1957) (where jury *388 instructed on both first and second degree murder, and verdict is guilty of second, but silent as to first, court assumed implied acquittal of first degree murder).
For all of these reasons, I am persuaded that the Fuller court was saying that a jury should not consider a lesser offense unless and until it has acquitted of the greater offense. The question then becomes whether that statement of law, which the Fuller court described in footnote 27 as a “principle,” was a holding of the court, or is otherwise binding on us. If it is authoritative, then the Wright court could not lay down a different rule, because it was bound “to follow a decision of the United States Court of Appeals rendered prior to February 1,1971” as the Fuller case was. M.A.P., supra, 285 A.2d at 312 .
We have recently discussed the circumstances under which a prior case should be regarded as controlling on a point of law expressed in an earlier decision. In District of Columbia v. Sierra Club, 670 A.2d 354 (D.C.1996), we considered the question whether the legal analysis 9 applied in an earlier case before us, see Kelly v. Parents United, 641 A.2d 159 , modified on other grounds, 648 A.2d 675 (D.C.1994), had been adopted as the governing principle to be applied in future cases. Concluding that it did not, we held that “[a]t most, the question whether the mode of analysis ... applies to suits alleging unlawful government conduct ‘lurked in the record’ in Parents United. The parties and the court assumed that [the analysis] applied. Nobody challenged that assumption, and the ‘judicial mind’ did not apply itself to the issue or pass upon it.” Sierra Club, 670 A.2d at 360 . In reaching that conclusion, we applied some general prineiples that had been distilled from some of our precedents:
As we recently had occasion to reiterate in Murphy v. McCloud, 650 A.2d 202 (D.C.1994), “[t]he rule of stare decisis is never properly invoked unless in the decision put forward as precedent the judicial mind has been applied to and passed upon the precise question.” Id. at 205 (quoting Fletcher v. Scott, [ 201 Minn. 609 ] 277 N.W. 270, 272 (Minn.1938) (citations omitted)). “Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.” Id. (quoting Webster v. Fall, 266 U.S. 507, 511 , 45 S.Ct. 148, 149 , 69 L.Ed. 411 (1925)); see also Thompson v. United States, 546 A.2d 414 , 423 n. 14 (D.C.1988) (quoting Webster). “A point of law merely assumed in an opinion, not discussed, is not authoritative.” Murphy, supra, 650 A.2d at 205 (quoting In re Stegall, 865 F.2d 140, 142 (7th Cir.1989)).
Sierra Club, supra, 670 A.2d at 360 ; see also Umana v. Swidler & Berlin, 669 A.2d 717, 720 (D.C.1995). When examined under these guidelines, it is plain that the Fuller court’s statement of principle that, in lesser included offense analysis, consideration of the lesser offense does not take place until there has been an acquittal of the greater offense, must be, by stare decisis, binding upon us.
The underlying issue in Fuller, where there had been a killing during the course of the commission of a rape, was whether the jury could properly return murder verdicts based on two separate theories: (1) as a felony-murder, and (2) as a second degree murder, i.e., with malice aforethought, as a lesser included offense of premeditated and deliberated first degree murder. 10 In Naples *389 v. United, States, 120 U.S.App. D.C. 128, 344 F.2d 508 (1964) (Naples II), a division of the court had held “that it was prejudicial error to refuse to instruct that the jury could not find the defendant guilty of both first and second degree murder.” Fuller, supra, 132 U.S.App. D.C. at 286-87, 407 F.2d at 1221-22. Fuller also had been convicted of both first and second degree murder, and although he had not requested that the jury be instructed that guilty verdicts of both degrees of murder could not be returned, he claimed that the trial court committed plain error in failing to give such an instruction. Id. In rejecting that claim, the Fuller court made a series of rulings. First, it overruled that aspect of Naples II that held that the jury could not return verdicts for both counts of murder, ruling “that the statutory definition of the crimes of first and second degree murder does not impel a requirement that they be charged in the alternative.” 11 Id. 132 U.S.App. D.C. at 291, 407 F.2d at 1226.
The Fuller court also held, in the portion of the opinion where the court described the relationship between the greater and lesser offenses, that there was no plain error on the part of the trial judge in not giving any special instruction relating to the possible verdict the jury could reach. Finally, the court held that the defense could choose either to have the jury return separate verdicts for the two murder counts as was done in that case, or the defense could have the jury instructed that it should consider second degree only as a lesser included offense of first degree felony-murder.
Fundamental to each of the latter two holdings is the acceptance by the court of the principle of acquittal first as settled law. In short, the court considered acquittal first to be the governing legal principle upon which its ultimate holdings were based. The court demonstrated its reliance upon that principle in at least two passages. First, where the court found no plain error, it did so in reliance upon the acquittal first principle:
If the defendant exercises his right to request that second degree murder be presented only as a lesser included offense, then as with Naples II, the jury will only render one verdict. That the defendant has a right on request to this sort of ordered presentation is, however, far different from Naples II. The jury is not to be told the crimes are alternatives. It is not to be told to acquit of second degree murder if it convicts of first degree. On the contrary, it does not even consider the issue of second degree murder unless it acquits as to first degree.
In this case the trial judge charged the jury with respect to both felony-murder and second degree murder. He did not instruct the jury to consider the question of second degree murder only if they determined that the Government had not met its burden as to some element of the first degree murder count. No request, motion or objection was made by appellant. In our view appellant cannot obtain reversal on the ground that there was “plain error affecting substantial rights.”
Our reasons for holding that there is no basis for reversal is that, in many instances, it makes sense to permit a verdict of second degree murder to be entered by a jury that also enters a verdict of felony-murder. It makes sense in terms of the strong policies favoring prosecutorial join-der of all possible theories of the crime in one trial in the absence of prejudice and the principle of sound judicial administration that retrials are to be avoided wherever possible.
Fuller, supra, 132 U.SApp. D.C. at 295, 407 F.2d at 1230 (footnotes omitted) (emphasis added).
Second, in requiring the defendant to elect between either an instruction that the jury consider both degrees of murder separately *390 or as a lesser included offense, the Fuller court plainly relied upon the acquittal first principle as the defining statement of the law governing its analysis:
Our conclusion that the defendant is required to make the motion that second degree murder be presented only as a lesser included offense rests on our view that the lack of such restriction does not tend to confuse the jury, and our inability to find any reasonable basis for concluding that, either in the case at bar or others that come to our mind, the jury has been or may be confused as to its duties in determining what showing is requisite to establish a case for first degree murder.
Appellant’s argument, if we understand it correctly, is ultimately cast in terms of jury room mystique: namely, that when all is said and done, one can never tell what would have gone on in the jury room had the charge been given.
We reject defendant’s approach. We might reach a different result if we started from the premise that the jury has an unrestricted junction in determining whether its verdict should reflect a conclusion of guilt as to the lesser or greater offense. But the law defines the jury’s duty otherwise. It must first consider the highest crime charged by the government in its indictment, and consider whether the defendant is guilty on that charge. If it is satisfied beyond a reasonable doubt that defendant is guilty of that greater offense, it is the jury’s duty to bring in a verdict that says so. Only if the jury has a reasonable doubt as to guilt of the higher offense, may a jury performing its duty acquit of that charge, and only then may it turn to consideration of whether defendant is guilty of the lesser offense.
Id. 132 U.S.App. D.C. at 296-97, 407 F.2d at 1231-32 (emphasis added).
These passages demonstrate that the Fuller court considered the principle of acquittal first to be the governing rule of law, and that it was bound to apply it in its analysis of the issues before it. That legal principle was not one that merely lurked in the record of the Fuller case; instead it was the focal point of the judicial decision-making process. In short, it is fair to say that the judicial mind in Fuller focused upon that principle and relied upon it in its analysis. See Sierra Club, supra, 670 A.2d at 360 . Therefore, in my view, it was binding upon the Wright court. 12
. Although, for the reasons stated, I believe that Wright was wrongly decided, my opinion on that score does not make it so. Therefore, given Wright as precedent, I join the opinion of the court.
. Criminal Jury Instructions for the District of Columbia, No. 4.00 (3d ed.1978). In pertinent part it provided:
If you find that the government has proven each and every element of [the greater] offense beyond a reasonable doubt, then it is your duty to find the defendant guilty of the greater offense ..., and you should not go on to consider the lesser included offense.... However, if you should find that the government has not proven each and every element of the greater offense ..., then you must find the defendant not guilty of [the greater offense] and you should go on to separately consider whether the defendant is guilty of the lesser included offense....
. Citing Towles v. United States, 521 A.2d 651 , 654 n. 6 (D.C.1987) (en banc); Franey v. United States, 382 A.2d 1019 , 1021 n. 2 (D.C.1978); United States v. Butler, 147 U.S.App. D.C. 270, 272, 455 F.2d 1338, 1340 (1972); Fuller v. United States, 132 U.S.App. D.C. 264, 292, 407 F.2d 1199, 1227 (1968) (en banc); cert. denied, 393 U.S. 1120 , 89 S.Ct. 999 , 22 L.Ed.2d 125 (1969).
. See, e.g., Jackson v. United States, 683 A.2d 1379 (D.C.1996); (Robert) Jones v. United States, 620 A.2d 249 (D.C.1993); Cosby v. United States, 614 A.2d 1291 (D.C.1992); Parker v. United States, 601 A.2d 45 (D.C.1991).
. Government’s brief at 7.
. Reply brief at 2-3. Wright also pointed out, correctly, that the quotation in the government's brief set out above is from the Towles panel opinion which we vacated in the order setting the case for rehearing en banc. Towles v. United States, 497 A.2d 793 (D.C.1985) The en banc opinion, however, uses similar language which also, standing alone, could fairly be characterized as dictum.
. The court acknowledged that Fuller was entitled, on remand, to vacation of the second degree murder conviction. Id. 132 U.S.App. D.C. at 298 n. 52, 407 F.2d at 1233 n. 52. In that regard, see. Byrd v. United States, 510 A.2d 1035 (D.C.1986) which adopted .Byrd v. United States, 500 A.2d 1376 (D.C.1985).
. One of the holdings of Austin , unrelated to the issue presented here, was later overruled by the en banc court. See United States v. Foster, 251 U.S.App. D.C. 267, 270, 783 F.2d 1082, 1085 (1986) (en banc).
. The legal analysis in question was that defined by Cort v. Ash, 422 U.S. 66 , 95 S.Ct. 2080 , 45 L.Ed.2d 26 (1975), relating to whether a regulatory statute also created a private right of action.
. First degree felony-murder and premeditated and deliberated murder are defined in D.C.Code § 22-2401. Second degree murder is defined in D.C.Code § 22-2403. They provide:
Whoever, being of sound memory and discretion, kills another purposely, either of deliberate and premeditated malice or by means of poison, or in perpetrating or attempting to perpetrate any offense punishable by imprison-merit in the penitentiary, or without purpose so to do kills another in perpetrating or in attempting to perpetrate any arson, as defined in § 22-401 or § 22-402, first degree sexual abuse, mayhem, robbery, or kidnapping, or in perpetrating or attempting to perpetrate any housebreaking while armed with or using a dangerous weapon, or in perpetrating or attempting to perpetrate a felony involving a controlled substance, is guilty of murder in the first degree.
D.C.Code § 22-2401 (1996 Repl.).
*389 Whoever with malice aforethought, except as provided in §§ 22-2401, 22-2402, kills another, is guilty of murder in the second degree.
D.C.Code § 22-2403 (1996 Repl.).
. As the court made clear, there can be no double punishment in such circumstances:
"Again we emphasize the obvious, that the fact that defendant may be found guilty of both crimes does not mean that he is subject to cumulative punishment.” Id. 132 U.S.App. D.C. at 292, 407 F.2d at 1227 .
. However, as I said in note 1 supra, my opinion on this point changes nothing, and I am bound by Wright so long as the en banc court has not reversed that decision. Of course, trial judges are also bound by Wright .

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9752656. Public record. Not legal advice.