I. Whether the federal statute providing that en banc rehearing is granted upon the vote of "a majority of judges of the court in regular active service," D.C. Code § 11-705(d), excludes recused judges from the count, as the substantively identical 28 U.S.C. § 46(c) has been decisively interpreted. See Fed. App. R. 35(a).

II. Whether Rule 35(a), as amended in 2005 to expressly exclude recused judges from the count, is binding on the D.C. Court of Appeals, which has never "prescribe[d] or adopt[ed]" any modification to that rule in the decades since the amendment. D.C. Code § 11-743.

III. Where a defendant is tried and convicted on an invalid theory of criminal liability, whether an appellate court can "affirm a conviction on the basis of a theory not presented to the jury," Chiarella v. United States, 445 U.S. 222, 236 (1980).

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