Before: Reid and Glickman, Associate Judges, and Kern, Senior Judge.
On September 4, 2003, this court issued a majority panel opinion affirming the trial court's decision ordering appellant Cleveland Bryan held without bond until his trial on the charge of assault with intent to murder while armed; one member of the panel dissented. See Bryan v. United States, 831 A.2d 383 (D.C. 2003) (Bryan I). On October 16, 2003, attorneys for Mr. Bryan and the United States informed the court that the charge against appellant has been dismissed, and that no indictment was filed against him within the time limit imposed by the pre-trial detention statute, D.C. Code § 23-1322 (d) (2001).
On October 9, 2003, Mr. Bryan and the government filed a joint motion to vacate the opinion of September 4, 2003. While "vacation of a decision by a deciding appellate court is not compelled after final completion of proceedings before that court," Wheeler v. Goulart, 623 A.2d 1177, 1178 (D.C. 1993), "it is appropriate for a court of appeals to vacate its own judgment if it is made aware of events that moot the case during the time available [for further review, such as rehearing en banc]." Id. (citing 13A CHARLES A. WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE § 3533.10, at 435 (2d ed. 1984) (citing cases)). But we do not exercise that discretion lightly. For example, in 1983, we vacated our opinion after learning that the appellant had died while the appeal was under consideration. Howell v. United States, 455 A.2d 1371 (D.C. 1983) (en banc). We vacated an opinion in 1991, after learning that appellant Alden N. Wilson's conviction had been set aside prior to the issuance of that opinion. Wilson v. United States, 592 A.2d 480 (D.C. 1991). And in 1996, we vacated our opinion in Group Health Ass'n v. Helmann, 672 A.2d 1089, vacated, 675 A.2d 57 (D.C. 1996), after learning that "several days previously the parties had settled the case and, two days prior to the issuance of the opinion, filed with us a joint motion to dismiss." Milar Elevator Co. v. District of Columbia Dep't of Employment Servs., 704 A.2d 291 (D.C. 1997) (citing Helmann, supra). *fn1
Here, the parties "recognize that [they have made] an unusual request but believe it is an equitable result. . . ." Subsequent to the issuance of our majority opinion affirming the trial court's order of detention, the government made certain disclosures to the defense that were not part of the record in Bryan I. The trial court depended heavily upon the fact that Witness One in the case had acknowledged his own guilt thereby giving credence to Witness One's assertion that Mr. Bryan was a fellow shooter in this murder case. At the time of its order, the trial court was unaware that Witness One entered a plea of guilty to the shooting in this case, as w ell as to other crimes, pursuant to a plea agreement with the prosecutor. Nor was the court aware of the plea agreement. Given these circumstances the government and Mr. Bryan's counsel explain why this court should take the unusual step of vacating its opinion in Bryan I:
Although the United States has agreed that it will not oppose a motion to reopen the detention hearing, appellant believes that he will be handicapped at that hearing by the existence of this Court's opinion affirming the previous order of detention. He therefore has stated an intention to petition the
[c]court to grant rehearing and/or rehearing en banc. He also believes he is entitled to vacatur because, among other reasons, the opinion in the government's favor likely would not have been issued had these disclosures been made earlier. From the point of view of the United States, it seems w asteful to com mit the attorney and judicial resources necessary to litigate and resolve such a petition when the United States has agreed that the detention hearing should be reopened. On the other hand, if such petition is not going to be filed, litigated, and ruled upon, it seems fair that the parties do their best to place appellant back in a position where that decision does not prejudice his request for release pending trial. Under these unique circumstances, appellee joins in the request that the Court's opinion be vacated.
We believe that both parties provide cogent reasons for exercising our discretion to vacate the September 24, 2003 opinion. Moreover, in the event of any future indictment of Mr. Bryan for his alleged participation in the shooting in the instant case, vacating our opinion serves "to protect the losing party [that is, Mr. Bryan] from the collateral effects of a judgment that [he] might have been able to have overturned but for the m ooting event." Clarke v. United States, 286 U.S. App. D.C. 256, 264, 915 F.2d 699, 707 (1990) (en banc).
Unlike our concurring colleague, the majority sees no reason in this order vacating the opinions in Bryan I either to rehash the circumstances presented there, or to engage in speculation concerning whether the majority opinion "should have issued." Doing so defeats the purpose of the joint motion to vacate. Nor, given the stance of the government's appellate attorneys in this matter, do w e find it necessary either to expound on the actions of the government attorney who was responsible for withholding pertinent information from the trial court and the defense, or to address the impact of that attorney's action on the work of this court.
ORDERED that the joint motion to vacate the September 4, 2003, opinions is granted. It is
FURTHER ORDERED that the opinions of September 4, 2003, in Bryan v. United States, 831 A.2d 383 (D.C. 2003) are hereby vacated.
GLICKMAN, Associate Judge, concurring in ...