United States v. Zabavsky

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

___________________________________

)

UNITED STATES OF AMERICA )

)

v. )

) Criminal No. 21-0598 (PLF)

TERENCE SUTTON )

and )

ANDREW ZABAVSKY, )

)

Defendants. )

___________________________________ )

OPINION AND ORDER

After a nine-week trial, a jury convicted defendant Terence Sutton of second

degree murder, conspiracy, and obstruction of justice, and defendant Andrew Zabavsky of

conspiracy and obstruction of justice. 1 At the time that the events giving rise to this case

1

The Court has reviewed the following documents and attachments thereto in

connection with the pending motions: Indictment [Dkt. No. 1]; Final Instructions to Jury (“Jury

Instructions”) [Dkt. No. 435]; Terence D. Sutton Jr.’s Motion for Judgment of Acquittal (“Sutton

Mot.”) [Dkt. No. 447]; Andrew Zabavsky’s Motion for Judgment of Acquittal (“Zabavsky

Mot.”) [Dkt. No. 445]; United States’ Opposition to Defendants’ Motions for Judgment of

Acquittal, New Trial, and Arrest of Judgment (“Gov’t Opp”) [Dkt. No. 456]; Terence D. Sutton

Jr.’s Reply in Support of his Motion for Judgment of Acquittal (“Sutton Reply”) [Dkt. No. 465];

Andrew Zabavsky’s Reply in Support of Zabavsky’s Motion for Judgment of Acquittal and

Zabavsky’s Motion for New Trial and Arrest of Judgment (“Zabavsky Reply”) [Dkt. No. 461];

Brief of the National Fraternal Order of Police, as Amicus Curiae in Support of Defendant

Terence Sutton’s Post-trial Motions [Dkt. No. 481]; Notice of Supplemental Authorities [Dkt.

No. 490]; Notice of Filing (“June 5, 2023 Argument Outline”) [Dkt. No. 491]; Second Motions

Hearing Transcript, United States v. Sutton, Crim. No. 21-0598 (June 5, 2023) (“June 5, 2023

Hearing Tr.”) [Dkt. No. 506]; First Motions Hearing Transcript, United States v. Sutton, Crim.

No. 21-0598 (May 17, 2023) (“May 17, 2023 Hearing Tr.”) [Dkt. No. 497]; and Government

Exhibits (“Gov’t Ex.”) [Dkt. No. 430].

In their motions, Mr. Sutton and Mr. Zabavsky raise several issues that the Court

has addressed previously in written and oral opinions. The Court has reviewed the following

prior opinions in consideration of the pending motions: United States v. Sutton, 636 F. Supp. 3d

occurred, Mr. Sutton and Mr. Zabavsky were employees of the Metropolitan Police Department.

On October 23, 2020, while operating an unmarked police vehicle, Mr. Sutton encountered a

young man named Karon Hylton-Brown. Mr. Sutton knew Mr. Hylton-Brown from previous

encounters. That night, Mr. Hylton-Brown was riding an electric scooter (or moped) without a

helmet. Mr. Sutton tried to initiate a traffic stop of Mr. Hylton-Brown. When Mr. Hylton-

Brown refused to stop, Mr. Sutton followed him through the Kennedy Street neighborhood of

Northwest D.C. After being chased for about two minutes, Mr. Hylton-Brown turned into an

alleyway, where Mr. Sutton continued pursuing him. When Mr. Hylton-Brown exited the

alleyway, he was struck by an oncoming vehicle. Mr. Hylton-Brown died several hours later.

In the aftermath of the collision, Mr. Sutton and his supervisor, Lieutenant

Andrew Zabavsky, failed to make immediate notification to the Major Crash Unit, the unit

within the Metropolitan Police Department that investigates traffic collisions resulting in death or

serious bodily injury. Mr. Sutton and Mr. Zabavsky also failed to make immediate notification

to the Internal Affairs Division, the department responsible for investigating officer misconduct,

uses of force, and non-compliance with internal police policies. They failed to ensure that

179 (D.D.C. 2022) (“First Mot. in Limine Op.”); United States v. Sutton, Crim. No. 21-0598,

2022 WL 17335969 (D.D.C. Nov. 30, 2022) (“Second Mot. in Limine Op.”); United States v.

Sutton, Crim. No. 21-0598, 2022 WL 11744415 (D.D.C. Oct. 20, 2022) (“Mot. to Sever Op.”);

United States v. Sutton, Crim. No. 21-0598, 2022 WL 3134449 (D.D.C. Aug. 5, 2022) (“August

Mot. to Compel Op.”); Mot. to Dismiss Oral Ruling Transcript, United States v. Sutton, Crim.

No. 21-0598 (Aug. 3, 2022) (“Mot. to Dismiss Oral Ruling”) [Dkt. No. 217]; United States v.

Sutton, Crim. No. 21-0598, 2022 WL 2828995 (D.D.C. July 20, 2022) (“July Mot. to Compel

Op.”); United States v. Sutton, Crim. No. 21-0598, 2022 WL 1183797 (D.D.C. Apr. 21, 2022)

(“Bill of Particulars Op.”); United States v. Sutton, Crim. No. 21-0598, 2022 WL 1202741

(D.D.C. Apr. 22, 2022) (“April Mot. to Compel Op.”); and United States v. Sutton, 642 F. Supp.

3d 57 (D.D.C. 2022) (“Daubert Op.”).

During trial, the court reporters provided daily transcripts of each day’s

proceedings to the Court and the parties. Those transcripts are cited as: Trial Tr. [Date] [Time]

at [Page:Line].

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adequate steps were taken to preserve the crash scene for subsequent investigation. And they

failed to provide a full, truthful, and unambiguous account of the pursuit and collision to their

superior officer, the watch commander who was on duty that night.

At the close of the government’s case in chief, both Mr. Sutton and Mr. Zabavsky

moved for judgment of acquittal. They renewed their motions at the close of all the evidence.

And they renewed their motions after the jury returned a guilty verdict on all counts. The Court

heard oral argument on the motions for judgment of acquittal on June 5, 2023. The Court has

reviewed the parties’ written submissions, the relevant authorities, the parties’ presentations at

oral argument, and the trial record. For the following reasons, Mr. Sutton’s and Mr. Zabavsky’s

motions for judgment of acquittal are denied.

TABLE OF CONTENTS

I. BACKGROUND ........................................................................................................................ 5

II. LEGAL STANDARD ............................................................................................................... 9

III. COUNT ONE: SECOND DEGREE MURDER................................................................... 10

A. Elements of the Offense ...................................................................................................... 10

1. Malice Aforethought ....................................................................................................... 10

2. Causation......................................................................................................................... 13

B. Facts Established at Trial .................................................................................................... 18

1. Events Preceding the Pursuit .......................................................................................... 18

2. The Pursuit and the Collision.......................................................................................... 21

3. Mr. Sutton’s Subjective Awareness of the Extreme Risk of Death or Serious Harm .... 26

C. The Government Met Its Burden as to Second Degree Murder .......................................... 32

1. Malice Aforethought ....................................................................................................... 32

2. Causation......................................................................................................................... 40

IV. COUNT THREE AND COUNT TWO: ................................................................................ 44

OBSTRUCTION OF JUSTICE AND CONSPIRACY TO OBSTRUCT JUSTICE ................... 44

A. Elements of the Offenses .................................................................................................... 44

1. Obstruction of Justice ..................................................................................................... 44

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2. Conspiracy ...................................................................................................................... 50

B. Facts Established at Trial .................................................................................................... 51

1. The Pursuit ...................................................................................................................... 51

2. The Crash Site ................................................................................................................. 53

3. The Fourth District Police Station .................................................................................. 57

a. Captain Porter............................................................................................................ 57

b. Mr. Sutton’s Draft Report ......................................................................................... 63

4. Major Crash Unit Investigation ...................................................................................... 65

5. Internal Affairs Division Investigation ........................................................................... 67

6. Evidence Relating to a Federal Nexus ............................................................................ 70

C. The Government Has Met Its Burden as to Obstruction of Justice..................................... 75

1. Misleading Conduct ........................................................................................................ 75

2. Knowledge ...................................................................................................................... 81

3. Specific Intent to Hinder, Delay, or Prevent ................................................................... 84

4. Communication to a Law Enforcement Officer of the United States ............................. 87

5. Commission or Possible Commission of a Federal Offense ........................................... 90

D. The Government Has Met Its Burden as to Conspiracy to Obstruct Justice....................... 93

1. Agreement and Intent ...................................................................................................... 93

2. Overt Act ......................................................................................................................... 95

V. CONCLUSION ....................................................................................................................... 98

4

I. BACKGROUND

On September 23, 2021, a grand jury indictment was unsealed charging Terence

Sutton and Andrew Zabavsky, both officers of the Metropolitan Police Department of the

District of Columbia (“MPD”), with conspiracy to obstruct justice, in violation of 18 U.S.C.

§ 371, and obstruction of justice and aiding and abetting, in violation of 18 U.S.C.

§ 1512(b)(3), 2. See Indictment [Dkt. No. 1]. Mr. Sutton was also charged with second degree

murder in violation of D.C. Code § 22-2103. Id.

The parties engaged in extensive pretrial litigation, and the Court issued more

than twenty-eight written and oral rulings on the legal and evidentiary issues presented. The

post-trial motions implicate many of the Court’s previous evidentiary and legal rulings.

Specifically, the Court determined and elaborated on the elements of each of the charged

offenses in various opinions. See generally April Mot. to Compel Op.; August Mot. to Compel

Op.; Mot. to Dismiss Oral Ruling; First Mot. in Limine Op.; Daubert Op. Relevant portions of

those opinions are quoted at length below.

Trial commenced on October 25, 2022. During its case in chief, the government

presented testimony from fifteen witnesses, including: Sean Ricardi, who works as a special

agent at the United States Attorney’s Office and was the case agent assigned to this prosecution;

Kevonn Mason, who grew up with Mr. Hylton-Brown and saw him the evening of the collision;

Gonthel Tolliver, an EMT who responded to the collision site; MPD Officer Tyler Toth, who

was patrolling the Kennedy Street area and responded to the collision site; MPD Officer Carlos

Tejera, a member of MPD’s Crime Suppression Team (“CST”) who sat in the front passenger

seat of the vehicle that Mr. Sutton drove the night of the collision; Joseph Della Camera, an

agent at MPD’s Internal Affairs Division (“IAD”) who investigated Mr. Sutton’s involvement in

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the pursuit and collision; MPD Officer Nicole Arnone, who responded to the collision site; MPD

Officer Jeffrey Folts, who was assigned to the MPD’s Major Crash Unit the night of the

collision; MPD Officers Cory Novick and Ahmed Al-Shrawi, who were both members of the

CST and were seated in the back seat of the police vehicle that Mr. Sutton drove the night of the

collision; James Street, an emergency room doctor who works at the MedStar Washington

Hospital Center; MPD Captain Franklin Porter, who was on duty as the Fourth District’s watch

commander the night of the collision; and Justin White, who works at a software company that

provides records management services to police departments.

The government also presented testimony from two experts: Robert Drago, a

consultant and former law enforcement officer who was qualified as an expert in police training

and national model police practices, procedures, and policies; and MPD Officer Carolyn Totaro,

who was qualified as an expert in the driving training offered to MPD officers and in the MPD

pursuit policies as those policies are taught to officers.

Throughout its case in chief, the government introduced a great deal of body worn

camera footage into evidence. As multiple witnesses explained, MPD body worn cameras work

as follows: officers wear their body worn cameras affixed to the front of their uniforms on their

chests. Trial Tr. Oct. 26, 2022 p.m. at 22:17-23:1 (Ricardi testimony). By pressing a button,

officers can turn their cameras on and off. Id. at 23:2-7. When turned on, the cameras “capture

all video and sound of what is within its field of view until it is turned off.” Id. Once activated,

the body worn camera’s footage will include video of the two minutes preceding activation. Id.

at 23:12-20. The two minutes of video captured in this “buffer period” do not contain any sound.

Id. Officers are required to activate their body worn cameras at the beginning of any “contacts”

with civilians, including “stops” and “frisks.” See Gov’t Ex. 401-G (MPD General Order on

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Body-Worn Camera Program) at 7 (explaining that officers “shall activate” their body worn

cameras for “[a]ll contacts initiated pursuant to a law enforcement investigation,” “[a]ll stops

(i.e., traffic, pedestrian, and bicycle) and frisks,” and “[a]ll traffic crash scenes”). See also Trial

Tr. Nov. 2, 2022 p.m. at 59:1-60:6 (Officer Tejera testimony regarding what his body worn

camera captured the night of the collision); Trial Tr. Nov. 2, 2022 a.m. at 32:1-13 (Officer Toth

testimony describing what his body worn camera captured the night of the collision); Trial Tr.

Nov. 8, 2022 p.m. at 46:23-47:24 (Officer Arnone testimony about how body worn cameras

function).

The government rested its case in chief on November 21, 2022, at which time

counsel for Mr. Sutton and counsel for Mr. Zabavsky moved orally for judgment of acquittal on

all counts. The Court reserved ruling on the motion pursuant to Rule 29(b) of the Federal Rules

of Criminal Procedure until the close of all the evidence. See FED. R. CRIM. P. 29(b).

In the defense case in chief, Mr. Sutton and Mr. Zabavsky presented evidence

from twenty witnesses, including: MPD Sergeant Gregory Hubyk, who supervises the CST;

MPD Officer Kathryn Pitt, who Mr. Sutton and Mr. Zabavsky spoke with earlier in the day on

October 23, 2020; Jonathan Urrutia-Chavez, the driver of the Scion that struck Mr. Hylton-

Brown; MPD Detective Victor DePeralta, an investigator with MPD’s Major Crash Unit who

investigated the collision that resulted in Mr. Hylton-Brown’s death; MPD Captain Sean

Connors, who testified about Mr. Sutton’s commendation awards from MPD; MPD Senior

Sergeant Brian Bray, who is assigned to the Internal Affairs Division; MPD Lieutenant Raul

Figueras, who is assigned to the bureau that oversees the Internal Affairs Division; MPD

Detective Alfonso Matos and MPD Officer John Paul Gautreaux, who worked extensively with

Mr. Sutton; MPD Assistant Chief Wilfredo Manlapaz, who testified about Mr. Sutton’s

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performance on MPD’s Crime Suppression Team; and retired MPD Lieutenant Derek Gray, who

worked closely with Mr. Zabavsky. The defense re-called several government witnesses,

including Officer Tyler Toth, Officer Cory Novick, EMT Gonthel Tolliver, and Special Agent

Sean Ricardi.

The defense also presented expert testimony from: Thomas Langley, who was

qualified as an expert in accident reconstruction; Dr. Samantha Tolliver, the Chief Toxicologist

at the Washington, D.C. Office of the Chief Medical Examiner, who was qualified as an expert

in forensic toxicology; Michael Wear, a retired MPD sergeant who was qualified as an expert on

police procedures and MPD policies; John Brennan, a retired MPD sergeant who was also

qualified as an expert on police procedures and MPD policies; and Michael Miller, a retired

MPD detective who was qualified as an expert in police procedures involving crash

investigations.

On December 9, 2022, the defense rested its case in chief, and counsel for Mr.

Sutton and Mr. Zabavsky renewed their motions for judgment of acquittal. The Court reserved

ruling once more and, after giving the final jury instructions on December 15, 2022, sent the case

to the jury for deliberations. The jury returned a verdict on December 21, 2022, finding Mr.

Sutton guilty of second-degree murder, obstruction of justice, and conspiracy to obstruct justice,

and finding Mr. Zabavsky guilty of obstruction of justice and conspiracy to obstruct justice.

After the verdict, the Court set a schedule for briefing on the Rule 29 motions.

On February 27, 2023, Mr. Sutton and Mr. Zabavsky filed written submissions in support of their

motions for judgment of acquittal. The government opposed, and Mr. Sutton and Mr. Zabavsky

submitted replies. The Court heard oral argument on the motions for judgment of acquittal on

June 5, 2023. The Court also heard argument on May 17, 2023 on the defendants’ motions under

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Rule 33 and Rule 34 of the Federal Rules of Criminal Procedure. Some of Mr. Sutton and Mr.

Zabavsky’s arguments as to the Rule 33 and Rule 34 motions relate to issues that are raised in

the Rule 29 motions, and the Court has considered the parties’ relevant written submissions and

oral presentations in resolving the Rule 29 motions.

II. LEGAL STANDARD

Rule 29(a) of the Federal Rules of Criminal Procedure provides that “[a]fter the

government closes its evidence or after the close of all the evidence, the court on the defendant’s

motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to

sustain a conviction.” FED. R. CRIM. P. 29(a); see United States v. Kayode, 254 F.3d 204, 212-13

(D.C. Cir. 2001); United States v. Harrington, 108 F.3d 1460, 1464 (D.C. Cir. 1997). “To

succeed on a Rule 29 motion, a defendant must clear a ‘very high’ hurdle.” United States v.

Hale-Cusanelli, 628 F. Supp. 3d 320, 324 (D.D.C. 2022) (quoting United States v. Pasha, 797

F.3d 1122, 1135 n.9 (D.C. Cir. 2015)). Granting a defendant’s motion for judgment of acquittal

“is appropriate only when there is no evidence upon which a reasonable juror might fairly

conclude guilt beyond a reasonable doubt.” United States v. Weisz, 718 F.2d 413, 438 (D.C. Cir.

1983); see United States v. Campbell, 702 F.2d 262, 264-65 (D.C. Cir. 1983). Judgment of

acquittal is inappropriate where “any reasonable factfinder could conclude that the evidence,

viewed most favorably to the government, satisfied each element [of the offense] beyond a

reasonable doubt.” United States v. Slatten, 865 F.3d 767, 781 (D.C. Cir. 2017); see United

States v. Safavian, 644 F. Supp. 2d 1, 8 (D.D.C. 2009); United States v. Jabr, Crim. No. 18-0105,

2019 WL 13110682, at *3 (D.D.C. May 16, 2019).

In other words, a motion for judgment of acquittal should be granted only when

“viewing the evidence most favorably to the government and according the government the

9

benefit of all legitimate inferences therefrom, a reasonable juror must necessarily have had a

reasonable doubt as to the defendants’ guilt.” United States v. Weisz, 718 F.2d at 437. When

ruling on a motion for judgment of acquittal, the Court must “presume that the jury has properly

carried out its functions of evaluating the credibility of witnesses, finding the facts, and drawing

justifiable inferences.” United States v. Campbell, 702 F.2d at 264; see United States v. Jabr,

2019 WL 13110682, at *3.

III. COUNT ONE: SECOND DEGREE MURDER

A. Elements of the Offense

Mr. Sutton was charged with second degree murder under the District of

Columbia code, which provides: “Whoever with malice aforethought . . . kills another, is guilty

of murder in the second degree.” D.C. Code § 22-2103. For the government to have proved Mr.

Sutton guilty of this offense, it must have established beyond a reasonable doubt (1) that Mr.

Sutton killed Mr. Hylton-Brown, meaning that Mr. Sutton caused Mr. Hylton-Brown’s death, see

Williams v. United States, 52 A.3d 25, 31-32 (D.C. 2012); and (2) that Mr. Sutton acted with

malice aforethought. See id. The Court applies District of Columbia law when determining the

elements of this D.C. Code offense. See April Mot. to Compel Op. at *10; July Mot. to Compel

Op. at *2-3; August Mot. to Compel Op. at *7.

1. Malice Aforethought

The government can prove that a person acted with malice aforethought if it

shows that the person “acted with a ‘depraved heart’ – that is, that the defendant engaged in

conduct that ‘involve[s] such a wanton and willful disregard of an unreasonable human risk as to

constitute malice aforethought even if there is not actual intent to kill or injure.’” July Mot. to

10

Compel Op. at *2 (quoting Comber v. United States, 584 A.2d 26, 38-39 (D.C. 1990) (en banc)).

As the Court has explained:

“Malice aforethought” can be satisfied in one of four ways. See

Jennings v. United States, 993 A.2d 1077, 1080 (D.C. 2010). As

relevant here, the government alleges . . . that Mr. Sutton acted with

malice aforethought because he subjectively knew that his conduct

“created an extreme risk of death or serious bodily injury, but

engaged in that conduct nonetheless.” Williams v. United States,

858 A.2d 984, 998 (D.C. 2004) (quoting Comber v. United States,

584 A.2d at 39 & n.12). . . . “[M]alice ‘may be found where conduct

is reckless and wanton, and a gross deviation from a reasonable

standard of care, or [of] such a nature that a jury is warranted in

inferring that the defendant was aware of a serious risk of death or

serious bodily harm.’” Comber v. United States, 584 A.2d at 39

(quoting Logan v. United States, 483 A.2d 664, 671 (D.C. 1984));

accord Wilson-Bey v. United States, 903 A.2d 818, 838 n.36 (D.C.

2006). . . .

Second degree murder “can only be found where the perpetrator of

the act [himself] ‘was subjectively aware that his or her conduct

created an extreme risk of death or serious bodily injury, but

engaged in that conduct nonetheless.’” Jennings v. United States,

993 A.2d at 1080 (quoting Comber v. United States, 584 A.2d at

39). This in turn “may be shown by a ‘gross deviation from a

reasonable standard of care’ or by other acts that may lead the finder

of fact to determine that the ‘defendant was aware of a serious risk

of death or serious bodily harm.’” Id. (quoting Comber v. United

States, 584 A.2d at 39).

April Mot. to Compel Op. at *10, 12.

The Court has also explained that:

Whether a particular defendant acted with a “depraved heart” “may

be shown by a ‘gross deviation from a reasonable standard of care’

or by other acts that may lead the finder of fact to determine that the

‘defendant was aware of a serious risk of death or serious bodily

harm.’” Jennings v. United States, 993 A.2d at 1080 (quoting

Comber v. United States, 584 A.2d at 39) (emphasis added). . . .

[W]hether conduct was done with a “depraved heart” turns on

whether the defendant was subjectively aware of the risk created by

his or her conduct. See Comber v. United States, 584 A.2d at 39.

But whether there was a “gross deviation from a reasonable standard

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of care” – a potential predicate of that subjective inquiry – is

necessarily objective: What is the applicable standard of care, and

did the defendant grossly deviate from it? See id.

July Mot. to Compel Op. at *3 (emphasis omitted); see August Mot. to Compel Op. at *7; First

Mot. in Limine Op. at 191-92.

Consistent with its prior opinions and with District of Columbia law, the Court

instructed the jury in this case:

The Indictment charges that on or about October 23, 2020, in the

District of Columbia, defendant Terence Sutton, acting with

conscious disregard of an extreme risk of death and serious bodily

injury to Karon Hylton-Brown, caused Mr. Hylton-Brown’s death –

that is Mr. Sutton caused a traffic collision from which Mr. Hylton-

Brown sustained injuries and died.

Jury Instructions at 27. 2 After the jurors requested additional explanation of the terms “conscious

disregard” and “extreme risk,” see Jury Note 01 [Dkt. No. 419], and after conferring with counsel,

the Court explained that:

The government must prove beyond a reasonable doubt that Mr.

Sutton acted with a reckless and wanton disregard for human life

that was extreme in nature, and that Mr. Sutton was aware that his

conduct created an extreme risk of death or serious bodily injury. In

other words, the government must show that Mr. Sutton acted with

callous and wanton disregard of human life and an extreme

indifference to the value of human life.

The fact that a reasonable person would have been aware of the risk

will not sustain a finding of conscious disregard. You must find that

Mr. Sutton himself was aware of or knew about the risk.

2

“[M]otions for an acquittal based on insufficient evidence cannot depend on jury

instructions.” United States v. Khatallah, 41 F.4th 608, 626 (D.C. Cir. 2022); see Musacchio v.

United States, 577 U.S. 237, 243 (2016); United States v. Hillie, 39 F.4th 674, 679-80 (D.C. Cir.

2022). The Court includes its jury instructions here only to provide a concise summary of the

relevant law.

12

Answer to Jury Note 01 [Dkt. No. 421]; see Trial Tr. Dec. 20, 2022 a.m. at 8:5-28:2 (parties’

discussion of their proposed responses to the jury’s request for additional explanation of the

terms “conscious disregard” and “extreme risk”).

2. Causation

In addition to acting with malice aforethought, a conviction for second degree

murder requires the government to prove that a person has killed another. D.C. Code § 22-2103.

Under District of Columbia law, the requirement that a person “kills another” under

Section 22-2103 is understood to mean that a person “caused the death of” another. Fleming v.

United States, 224 A.3d 213, 220 (D.C. 2020) (en banc) (citing Williams v. United States, 52

A.3d at 31). This Court has consistently applied the D.C. Court of Appeals’ decision in Fleming

v. United States when defining this element. See, e.g., First Mot. in Limine Op.; Second Mot. in

Limine Op.; Mot. to Dismiss Oral Ruling. As the Court has explained:

Under the D.C. second degree murder statute, “‘a defendant

generally may not be convicted unless his conduct is both (1) the

actual cause, and (2) the legal cause (often called the proximate

cause) of the result.’” Fleming v. United States, 224 A.3d at 221

(quoting Burrage v. United States, 571 U.S. 204, 210 (2014)).

Actual causation “‘requires proof that the harm would not have

occurred in the absence of – that is, but for – the defendant’s

conduct.’” Id. (quoting Burrage v. United States, 571 U.S. at 211).

Proximate causation “‘preclude[s] liability in situations where the

causal link between conduct and result is so attenuated that the

consequence is more aptly described as mere fortuity.’” Id. at 224

(quoting Paroline v. United States, 572 U.S. 434, 444-45 (2014)).

The D.C. Court of Appeals has made clear, however, that “the

intervening actions of a third party do not by themselves defeat

proximate cause if those intervening actions were reasonably

foreseeable to the defendant.” Id. at 226 (emphasis added).

Second Mot. in Limine Op. at *5; see Mot. to Dismiss Oral Ruling at 7:21-8:4 (the majority

decision in Fleming is “the most recent statement of the law on second degree murder in the

District of Columbia”). Accordingly, the government’s burden in this case was to establish that

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Mr. Sutton was both the but-for cause of Mr. Hylton-Brown’s death as well as the proximate

cause of his death. See Fleming v. United States, 224 A.3d at 221-23 (citing Burrage v. United

States, 571 U.S. at 210).

Importantly, the Fleming majority reiterated the principle that a person can be

held responsible for a death “even though the death would not have occurred but for the

reasonably foreseeable intervening acts of another.” Fleming v. United States, 224 A.3d at 225.

Thus, a person need not deliver the fatal blow or fire the fatal shot to bear responsibility for

another’s death, so long as there is a sufficiently close connection between the person’s conduct

and the resulting death, and that the third-party’s fatal action was a “reasonably foreseeable”

consequence of the person’s conduct. Id. at 224-25, 229.

The D.C. Court of Appeals’ en banc decision in Fleming v. United States includes

two concurring opinions, neither of which changes this Court’s assessment of the controlling

District of Columbia law on causation for second-degree murder. Judge McLeese’s majority

decision is unequivocally controlling. See Mot. to Dismiss Oral Ruling at 7:19-8:4 (holding that

the majority opinion in Fleming is the controlling law in this case). 3 Because counsel for Mr.

Sutton has invoked the Fleming concurrences in his motion for judgment of acquittal, see June 5,

2023 Hearing Tr. at 18:8-19, 54:21-24, the Court will reiterate why the two concurrences do not

alter the applicable law.

3

At the time Fleming was decided, the en banc D.C. Court of Appeals consisted of

eight judges: Chief Judge Blackburne-Rigsby, Judge Glickman, Judge Fisher, Judge Thompson,

Judge Beckwith, Judge Easterly, and Judge McLeese. Joining Judge McLeese’s majority

opinion in Fleming were Chief Judge Blackburne-Rigsby, Judge Glickman, Judge Fisher, and

Judge Thompson. Judge Fisher also authored a concurring opinion, in which he was joined by

Judge Thompson. Judge Easterly and Judge Beckwith concurred in the judgment but did not join

Judge McLeese’s majority opinion. See Fleming v. United States, 224 A.3d at 217.

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The first concurrence, authored by Judge Fisher and joined by Judge Thompson,

provides no reason to believe that Judge McLeese’s lead opinion is not a controlling majority

opinion. Fleming v. United States, 224 A.3d at 231 (Fisher & Thompson, JJ., concurring) (“We

join the opinion of the court but add this brief concurring statement to emphasize key principles

on which the court relies.”). In his concurring opinion, Judge Fisher highlighted the majority’s

holding that “to kill” – as the term is used in District of Columbia homicide statutes – means “to

cause death.” Id. Judge Fisher also reiterated the majority’s conclusion that a person can be held

responsible for a death resulting from a third-party’s intervening actions where such third-party

intervention was “reasonably foreseeable.” Id. Judge Fisher went on to discuss how principles

of vicarious liability and but-for causation interact in the “urban gun battle” context. Id. at 232. 4

4

At oral argument, counsel for Mr. Sutton suggested that Judge Fisher and Judge

Thompson did not join in the majority’s “advisory opinion” regarding proximate causation. See

June 5, 2023 Hearing Tr. at 98:17-23. Judge Fisher and Judge Thompson observed that “this

court will need to devote more effort to explaining the interaction of but-for causation and

vicarious liability in the context of a gun battle (and to crafting an instruction which describes

that interaction for the jury).” Fleming v. United States, 224 A.3d at 232 (Fisher & Thompson,

JJ., concurring) (emphasis added). Mr. Sutton reasons that Judge Fisher and Judge Thompson

thus did not adopt the majority opinion’s sample jury instruction for second degree murder. See

June 5, 2023 Hearing Tr. at 98:17-23.

The Court disagrees with Mr. Sutton’s reading of the concurrence. Judge Fisher

and Judge Thompson very clearly joined in the entire majority opinion, writing:

We join the opinion of the court but add this brief concurring

statement to emphasize key principles on which the court relies. We

also attempt to make a few points about issues that will arise in

future cases like this. There inevitably will be such cases because

gun battles occur on the streets of the District of Columbia with

depressing frequency, often with lethal results.

Fleming v. United States, 224 A.3d at 231 (Fisher & Thompson, JJ., concurring). If Judge Fisher

and Judge Thompson had wanted to narrow the scope of their agreement with Judge McLeese’s

majority opinion, the concurring judges could and would have said so explicitly or could have

joined the majority as to all but Section IV.B.2, which contained the sample jury instructions.

Moreover, to the extent that Judge Fisher and Judge Thompson expressed caution regarding the

15

Likewise, Judge Easterly’s concurrence, joined only by Judge Beckwith, does not

give the Court any reason to reconsider its position about which Fleming opinion is controlling,

regardless of the fact that Judge Easterly and Judge Beckwith concurred only in the judgment.

See Fleming v. United States, 224 A.3d at 232 (Easterly, J., concurring in the judgment). This

separate concurrence “endorse[d] and fortif[ied]” several “pillars of the majority opinion’s

analysis,” including the principle that second degree murder requires a showing that “the

defendant’s action was not only a but-for cause [of the resulting death] but had ‘a sufficient

connection to the result,’ often (but not exclusively) analyzed in terms of timing and reasonable

foreseeability.” Id. at 233 (quoting Paroline v. United States, 572 U.S. at 444). Judge Easterly

and Judge Beckwith, however, would not allow second degree murder to reach circumstances

where “a defendant has taken an earlier action in the causal chain of a death, notwithstanding

that a third party voluntarily and independently takes a later action that is both a but-for and a

more immediate cause of death.” Id. at 234. Judge Easterly criticized the majority’s broad

interpretation of the D.C. second-degree murder statute for failing to recognize the “common law

prohibition on criminally punishing individuals for the independent, voluntary actions of others.”

Id. at 236.

Repeatedly – before, during, and after trial – Mr. Sutton has urged this Court to

adopt Judge Easterly’s analysis rather than Judge McLeese’s analysis. See, e.g., June 5, 2023

Hearing Tr. at 21:2-3 (counsel for Mr. Sutton reiterating his position that the majority opinion in

Fleming is not controlling in this case because Mr. Hylton-Brown’s death was not caused by an

majority opinion’s sample jury instructions, that concern was specifically limited to the “context

of a gun battle.” Id. at 232. Nothing in the concurrence suggests that Judge Fisher or Judge

Thompson would object to applying the majority’s jury instruction to other sets of facts, such as

the facts at issue in this case.

16

“intervening” third-party for whom Mr. Sutton bore vicarious liability); id. at 94:6-98:10

(counsel for Mr. Sutton explaining his reading of the Fleming opinions). The Court has

consistently declined to reject the Fleming majority opinion in favor of the concurring view of

two judges and sees no reason to reconsider this ruling.

Thus, consistent with the majority opinion in Fleming, the Court instructed the

jury that a finding of guilt as to second-degree murder required the government to prove beyond

a reasonable doubt that “Terence Sutton caused the death of Karon Hylton-Brown.” Jury

Instructions at 27. The Court further instructed that the government had to prove both “actual

causation” and “proximate causation” beyond a reasonable doubt. Id. at 29. The Court defined

those terms as follows:

[A]ctual causation – that Mr. Hylton-Brown’s death occurred as a

result of an action by defendant Sutton. In other words, the

government must prove that in the absence of an action by defendant

Sutton, Mr. Hylton-Brown’s death would not have occurred. . . .

[P]roximate causation – that there is a close connection between

defendant Sutton’s action and Mr. Hylton-Brown’s death. You may

find that a close connection exists if, at the time of defendant

Sutton’s action, the defendant knew or reasonably should have

known that the action might result in the death of or serious bodily

injury to Mr. Hylton-Brown. On the other hand, you may not find

that a close connection exists if the series of events leading from

defendant Sutton’s action to Mr. Hylton-Brown’s death is highly

unusual, abnormal, or extraordinary.

Jury Instructions at 29. The Court further instructed the jury that:

There is evidence in this case that defendant Sutton did not

personally inflict Mr. Hylton-Brown’s fatal injury and that Mr.

Hylton-Brown’s fatal injury instead was inflicted by a third party.

Under such circumstances, defendant Sutton can be found to have

caused Mr. Hylton-Brown’s death only if, applying the instruction

you were just given, Mr. Hylton-Brown’s death occurred as a result

of the defendant’s action and there is a close connection between the

defendant’s action and Mr. Hylton-Brown’s death.

17

Id. See Fleming v. United States, 224 A.3d at 221 (“[T]he actual-cause requirement means that

the United States must prove that, if one subtracted the defendant’s actions from the chain of

events, the decedent would not have been killed.”); id. at 224 (“[A] criminal defendant

proximately causes, and thus can be held criminally accountable for, all harms that are

reasonably foreseeable consequences of his or her actions.” (quoting Blaize v. United States, 21

A.3d 78, 81 (D.C. 2011)). 5

B. Facts Established at Trial

1. Events Preceding the Pursuit

On October 23, 2020, Mr. Sutton was on duty, operating an unmarked police

vehicle, and working as a member of MPD’s Crime Suppression Team (“CST”). When

members of the CST are on patrol, they typically operate with four officers in one unmarked

vehicle. That day, Mr. Sutton was driving; Officer Carlos Tejera sat in the front passenger seat;

and Officers Cory Novick and Ahmed Al-Shrawi were seated in the left and right rear seats,

respectively. See Trial Tr. Nov. 2, 2022 p.m. at 18:22-19:2, 40:9-19 (Tejera testimony); Trial Tr.

Nov. 10, 2022 p.m. at 90:13-14 (Al-Shrawi testimony).

It was clear from the evidence at trial that Mr. Hylton-Brown was known to the

CST officers, including Mr. Sutton – and that Mr. Sutton was known to Mr. Hylton-Brown –

5

The Court also gave a lesser included offense instruction as to involuntary

manslaughter. Involuntary manslaughter requires the government to prove that Mr. Sutton

caused the death of Mr. Hylton-Brown; that the “conduct which caused the death was a gross

deviation from a reasonable standard of care”; and that the “conduct that caused the death

created an extreme risk of death or serious bodily injury.” Jury Instructions at 27. The Court

distinguished involuntary manslaughter from second degree murder by explaining that “[t]o

show guilt of second degree murder, the government must prove that defendant Sutton was

aware of the extreme risk of death or serious bodily injury,” whereas involuntary manslaughter

only required that “he should have been aware” of the risk of death or serious bodily injury. Id.

at 28.

18

prior to the chase and fatal collision. Surveillance footage showed that at about 10:00 p.m. on

October 23, 2020, Mr. Sutton’s CST vehicle was parked at Seventh Street and Kennedy Street,

Northwest, with all four officers seated inside. Trial Tr. Nov. 10, 2022 p.m. at 38:6-40:22 (Al-

Shrawi testimony); Trial Tr. Nov. 2, 2022 p.m. at 44:6-12 (Tejera testimony). At that time, Mr.

Zabavsky stood outside of the CST vehicle with MPD Officers Kathryn Pitt, Tyler Toth, and

Nicole Arnone. See Gov’t Ex. 303 (MPD Traffic Cameras, Seventh and Kennedy); Trial Tr.

Nov. 10, 2022 p.m. at 39:1-40:14 (Al-Shrawi testimony). Officer Pitt spoke to the officers

seated inside the CST vehicle, including Mr. Sutton, and told them that Mr. Hylton-Brown had

been involved in an altercation earlier in the day and that he had made a derogatory statement

directed toward her. Id. at 40:15-21, 41:21-23 (Al-Shrawi testimony). Officer Al-Shrawi

clarified that he did not recall Officer Pitt mentioning anything about Mr. Hylton-Brown being

involved in any violence or a physical fight, see id. at 41:7-43:11, and he did not hear anything

about Mr. Hylton-Brown posing any kind of safety threat. Id. at 45:3-6; see Trial Tr. Nov. 2,

2022 p.m. at 44:6-47:15 (Officer Tejera described the conversation with Officer Pitt and

explained that he learned no information about whether Mr. Hylton-Brown had committed a

crime during that conversation). Agent Ricardi explained that he interviewed Officer Pitt during

his investigation, and she told him that when she saw Mr. Hylton-Brown driving the moped on

the sidewalk earlier that day, she believed he was high or intoxicated. Trial Tr. Oct. 31, 2022

p.m. at 24:23-26:1.

After the CST officers finished talking with Officer Pitt, the CST vehicle drove

off, heading east on Kennedy Street towards the intersection of Fifth Street and Kennedy Street,

Northwest. Trial Tr. Nov. 10, 2022 p.m. at 49:13-24 (Al-Shrawi testimony). Mr. Zabavsky

followed them, driving a marked police vehicle. Id. The CST vehicle, driven by Mr. Sutton,

19

then encountered Mr. Hylton-Brown. Id. at 48:7-13. Mr. Hylton-Brown was stationary, seated

on a Revel moped on the sidewalk near Fifth Street and Kennedy Street, Northwest. Id.

at 52:21-54:6. Mr. Sutton called out to Mr. Hylton-Brown, “What are you doing? Where your

helmet at?” Id. at 55:21-24. Mr. Sutton initially drove past Mr. Hylton-Brown, but then did a U-

turn and reapproached him. Id. at 57:14-58:15; Trial Tr. Nov. 2, 2022 p.m. at 49:1-50:6 (Tejera

testimony).

At that time, Mr. Sutton activated his emergency lights. Trial Tr. Nov. 10, 2022

p.m. at 61:19-24 (Al-Shrawi testimony). Mr. Sutton did not explain to the other CST officers

why he did so, nor did he say anything else to or about Mr. Hylton-Brown. Id. at 62:21-22.

According to Officer Tejera, the CST officers “tried to initiate a traffic stop on Mr. Hylton,” and

“Officer Sutton turned on the lights on the vehicle and that’s how the traffic stop was attempted.”

Trial Tr. Nov. 2, 2022 p.m. at 51:1-4. Officer Al-Shrawi similarly testified that he “was under

the impression” that Mr. Sutton was trying to stop Mr. Hylton-Brown. Trial Tr. Nov. 10, 2022

p.m. at 62:4-24. Mr. Hylton-Brown, however, rode the moped southbound on Fifth Street, away

from the CST vehicle, and did not stop. Trial Tr. Nov. 2, 2022 p.m. at 53:3-7 (Tejera testimony).

When Mr. Hylton-Brown rode away on the moped, Mr. Sutton turned off the CST vehicle’s

emergency lights and followed him. Trial Tr. Nov. 10, 2022 p.m. at 63:10-16 (Al-Shrawi

testimony). Behind Mr. Sutton, Mr. Zabavsky also followed Mr. Hylton-Brown in the other

MPD vehicle. Trial Tr. Nov. 2, 2022 p.m. at 55:15-18 (Tejera testimony).

Both Officer Tejera and Officer Al-Shrawi testified that, at the moment Mr.

Sutton began following Mr. Hylton-Brown, they did not suspect that Mr. Hylton-Brown had

committed a felony or violent crime; nor did they have reason to believe that Mr. Sutton

suspected Mr. Hylton-Brown of committing a felony or violent crime. Trial Tr. Nov. 10, 2022

20

p.m. at 64:22-65:3 (Al-Shrawi testimony); Trial Tr. Nov. 2, 2022 p.m. at 54:20-55:3 (Tejera

testimony). According to Officer Al-Shrawi, the only crime that Mr. Hylton-Brown was

suspected of before Mr. Sutton tried to stop him was driving a moped without a helmet. Trial Tr.

Nov. 10, 2022 p.m. at 74:19-22 (Al-Shrawi testimony); Trial Tr. Nov. 14, 2022 p.m. at 24:14-24

(Officer Al-Shrawi explained that he was prepared to jump out of the CST vehicle and stop Mr.

Hylton-Brown for not wearing a helmet). Officer Tejera believed that Mr. Sutton was trying to

initiate a traffic stop because “Mr. Hylton was operating the moped on the sidewalk.” Trial Tr.

Nov. 2, 2022 p.m. at 51:15-19. Officer Tejera and Officer Al-Shrawi both testified that they

never observed Mr. Hylton-Brown carrying a weapon, and that none of the officers in the CST

vehicle mentioned seeing anything of the sort. Id. at 56:4-25 (Tejera testimony); Trial Tr.

Nov. 14, 2022 p.m. at 25:8-16 (Officer Al-Shrawi testified that no one mentioned seeing Mr.

Hylton-Brown with a weapon and “[i]f someone saw a weapon, I would expect them to say

something”); Trial Tr. Nov. 7, 2022 a.m. at 46:3-25 (Officer Tejera explained that Mr. Hylton-

Brown’s body language did not suggest he was concealing a weapon). When it became clear

that Mr. Hylton-Brown was not going to pull over, Officer Tejera suggested getting a warrant for

his arrest – for the misdemeanor criminal offense of fleeing from law enforcement – rather than

continuing to try to effectuate a traffic stop. Trial Tr. Nov. 7, 2022 a.m. at 68:10-70:14.

2. The Pursuit and the Collision

In their separate vehicles, Mr. Sutton and Mr. Zabavsky followed Mr. Hylton-

Brown through the neighborhood for approximately two minutes. See Trial Tr. Nov. 17, 2022

a.m. at 54:10-22 (Porter testimony); Gov’t Ex. 204 (Zabavsky body worn camera); Gov’t Ex.

200 (Sutton body worn camera); Gov’t Ex. 202 (Tejera body worn camera). The government

also offered recordings of MPD radio transmissions from the night of the collision. Two radio

21

recordings were admitted: a recording of the “main” radio channel, which every officer in the

Fourth District had access to; and a recording of the “Ops” channel, a special channel that was

only available to members of the CST. See Gov’t Ex. 221-A (Ops channel radio recording);

Gov’t Ex. 221-B (Fourth District radio channel recording).

Seated in the front passenger seat, Officer Tejera was able to observe Mr. Hylton-

Brown riding on the moped while the MPD vehicles followed him, and Officer Tejera’s body

worn camera captured video of Mr. Hylton-Brown as Mr. Sutton followed him. See Gov’t

Ex. 202. Officer Tejera’s body worn camera footage depicts Mr. Hylton-Brown riding away,

with the CST vehicle speeding up to catch him. From Officer Tejera’s vantage point, houses and

apartments blurred as the CST vehicle accelerated. The red and blue lights from the CST vehicle

reflected on the vehicle’s front windshield, disappearing and reappearing when Mr. Sutton turned

the vehicle’s emergency lights off and on. See Gov’t Ex. 202. While Mr. Sutton and Mr.

Zabavsky followed Mr. Hylton-Brown, both of them spoke over the Ops radio channel. Mr.

Zabavsky says, “Seventh and Ingraham,” and then, “We’re chasing Karon on a scooter right

now.” Gov’t Ex. 221-A. A few seconds later, Mr. Sutton says, “He’s going up Seventh,” then

“Eighth and Jefferson. Karon Hylton. He’s going toward Kennedy on Eighth Street.” Id.

About forty-five seconds before the collision, Mr. Hylton-Brown did a U-turn in

the street, momentarily moving out of view of Officer Tejera’s body worn camera. Officer

Sutton maneuvered the MPD vehicle in a multi-point turn to continue following him. See Gov’t

Ex. 202; see Trial Tr. Oct. 26, 2022 p.m. (Agent Ricardi explained that the CST vehicle

“perform[ed] a turn in the intersection of Eighth and Kennedy” then continued following Mr.

Hylton-Brown down Eighth Street toward Jefferson Street, Northwest). Seconds after the CST

vehicle turned around, Officer Tejera lifted his arm and pointed, and as the CST vehicle drove

22

forward, Mr. Hylton-Brown came back into view. Mr. Sutton took a left turn, following Mr.

Hylton-Brown onto Jefferson Street, and quickly thereafter made another left turn, following Mr.

Hylton-Brown down a narrow alleyway. A few seconds after making the left turn into the alley,

Mr. Sutton turned off the CST vehicle’s emergency lights. See Gov’t Ex. 202 (Tejera body worn

camera); Gov’t Ex. 111-C (map of Kennedy Street, Northwest neighborhood).

The government also introduced images from Mr. Sutton’s body worn camera

footage. See Gov’t Exs. 101-B, 101-C, 101-D (Sutton body worn camera screenshots). From his

seat behind the wheel, Mr. Sutton’s camera captured the CST vehicle’s speedometer. The

footage his body worn camera recorded indicates that the CST vehicle’s speed reached up to

forty-five miles-per-hour as Mr. Sutton pursued Mr. Hylton-Brown through the neighborhood.

See Gov’t Ex. 101-E (Sutton body worn camera screenshot). The footage also shows that in the

moments before the collision, Mr. Sutton accelerated down the alleyway behind Mr. Hylton-

Brown, reaching a maximum speed of twenty-six miles-per-hour, while deactivating the CST

vehicle’s lights and sirens. See Gov’t Exs. 101-B, 101-C, 101-D; Trial Tr. Nov. 15, 2022 p.m. at

77:11-79:9 (Totaro testimony); Trial Tr. Nov. 2, 2022 p.m. at 89:4-22 (Tejera testimony).

Officer Carolyn Totaro testified that the speed limit in residential parts of the District of

Columbia is twenty miles per hour – but in alleyways like the one where Mr. Sutton followed

Mr. Hylton-Brown, the speed limit is fifteen miles per hour. Trial Tr. Nov. 15, 2022 a.m.

at 61:7-16.

Video from Officer Tejera’s body worn camera also depicts the CST vehicle

accelerating down the alleyway. See Gov’t Ex. 202 (Tejera body worn camera). Officer

Tejera’s body worn camera captured Mr. Hylton-Brown riding the moped as he approached the

end of the alleyway, which opened up onto the 700 block of Kennedy Street. The brake lights on

23

his moped glowed red as he reached the end of the alleyway, but the light disappeared as he

exited the alleyway and began veering left onto Kennedy Street. As Mr. Hylton-Brown began

turning left, visible on the left side of the video screen, another car approached driving eastbound

on Kennedy Street. The brake lights on Mr. Hylton-Brown’s moped flashed red as he continued

making his left turn. The oncoming car made contact with Mr. Hylton-Brown, and the red light

of the moped’s brakes disappeared. In a blur, the oncoming car continued forward, and its brake

lights flashed on. Mr. Hylton-Brown is no longer visible on screen. The CST vehicle comes to a

stop at the end of the alleyway. Visible on the far-right side of the screen, further east on

Kennedy Street, a different police car – operated by Officer Tyler Toth – turned on its

emergency lights. Officer Tejera exited the vehicle and activated his body worn camera, which

began recording audio. He and three other officers approached Kennedy Street, where the

moped was lying in the road. About six feet to the right of the moped, Mr. Hylton-Brown is seen

lying in the street. Officer Novick and Officer Al-Shrawi approached Mr. Hylton-Brown and

attempted to render first aid. See Gov’t Ex. 202(Tejera body worn camera); Trial Tr. Nov. 14,

2022 p.m. at 43:3-4, 50:1-15 (Novick testimony).

The government presented body worn camera footage, pictures, and testimony

about Mr. Hylton-Brown’s injuries. Several police officers attested to the seriousness of Mr.

Hylton-Brown’s injuries in the immediate aftermath of the collision. See, e.g., Trial Tr. Nov. 2,

2022 a.m. at 23:23-24:7, 27:2-24 (Officer Toth observed “pretty serious” injuries); Trial Tr.

Nov. 2, 2022 p.m. at 66:6-14 (Officer Tejera believed the injuries “could have been something

serious” due to the blood and vomit he observed); Trial Tr. Nov. 8, 2022 p.m. at 56:20-57:23

(Officer Arnone testified that she observed Mr. Hylton-Brown “bleeding from his head” and that

his condition “appeared to worsen” as officers waited for the ambulance); Trial Tr. Nov. 10,

24

2022 p.m. at 85:9-24 (Officer Al-Shrawi believed Mr. Hylton-Brown’s injuries were “life-

threatening”). Gonthel Tolliver, a paramedic at the District of Columbia Fire Department,

testified that she arrived at the scene of the collision, and after quickly assessing Mr. Hylton-

Brown’s condition, she immediately put him in the ambulance to take him to the trauma center.

Trial Tr. Nov. 1, 2022 p.m. at 54:16-23, 62:1-64:7.

The jury also heard testimony from Dr. James Street, a trauma and acute care

surgeon at MedStar Washington Hospital Center. See Trial Tr. Nov. 16, 2022 p.m. at 81:13-20.

Dr. Street worked at the emergency room at the MedStar Washington Hospital Center where Mr.

Hylton-Brown was taken by ambulance after the collision, and he supervised the team of doctors

and nurses who attended to Mr. Hylton-Brown. Id. at 84:7-13, 85:6-12, 86:1-16. Dr. Street

testified to the skull fractures that were present when Mr. Hylton-Brown arrived at the hospital,

and he explained that by 5:00 a.m. on October 24, 2020, hospital staff had determined that Mr.

Hylton-Brown had sustained a “non-survivable injury.” Id. at 93:12-94:13, 95:4-8. The

government offered photographs of Mr. Hylton-Brown’s injuries, which, according to Dr. Street,

were taken by an employee of the Medical Examiner’s Office after Mr. Hylton-Brown died. Id.

at 106:5-21; see Gov’t Exs. 100-A, 100-B, 100-C, and 100-D (autopsy photographs); see Trial

Tr. Nov. 9, 2022 a.m. at 68:16-20 (Officer Folts explained that he learned from Dr. Street that

Mr. Hylton-Brown was going to die). According to testimony and medical records, Mr. Hylton-

Brown died at the MedStar Washington Hospital Center in the early morning hours of

October 24, 2022. See Trial Tr. Nov. 21, 2022 a.m. at 70:17-71:16 (Ricardi testimony); Gov’t

Exs. 403-B, 403-D (MedStar Washington Hospital Center records); Gov’t Exs. 407-B, 407-C

(District of Columbia Office of the Chief Medical Examiner records).

25

3. Mr. Sutton’s Subjective Awareness of the Extreme Risk of Death or Serious Harm

The government introduced evidence that Mr. Sutton was “pretty experienced”

and knowledgeable about MPD protocols and procedures. Trial Tr. Nov. 10, 2022 p.m. at

31:19-24 (Al-Shrawi testimony). His police academy materials from 2009, for example, indicate

that he passed his vehicle skills course at the police academy with flying colors. See Gov’t Ex.

405-B (Sutton police academy driving training evaluation). He received a 94 percent on the

written test and finished the course – which included a mock vehicular pursuit assessment – with

a 97 percent overall. Trial Tr. Nov. 15, 2022 a.m. at 40:16-24, 41:4-9, 46:3-11 (Totaro

testimony). The government also introduced evidence that, on March 13, 2019, Mr. Sutton

received an official reprimand – a censure – for failing to comply with the MPD’s policy on

vehicular pursuits. See Trial Tr. Oct. 31, 2022 p.m. at 98:8-101:10 (Ricardi testimony); Gov’t

Ex. 414-B (Sutton 2019 Reprimand). The reprimand stated in part:

You are hereby issued this official reprimand for violating general

order 301.03, part VI, 10a, b, which states in part that a vehicular

pursuit shall be terminated when it becomes apparent that the

vehicular pursuit could lead to unnecessary property damage, injury

to citizens or members of the department, and the pursuit is in close

proximity to schools and hospitals and other locations with high

pedestrian or vehicular activity.

Gov’t Ex. 414-B. The government also presented two expert witnesses, Officer Carolyn Totaro

and Robert Drago, who testified about MPD vehicle skills training and the standard of care that

Mr. Sutton was expected to adhere to as a police officer engaging in a vehicular chase or pursuit.

Both experts testified at length about the MPD policy on vehicular pursuits, General

Order 301.03.

26

a. MPD Training and Testimony of Officer Carolyn Totaro

Officer Totaro works as an instructor at MPD’s police academy, where she leads

vehicle skills trainings for other officers. Trial Tr. Nov. 15, 2022 a.m. at 30:17-24, 31:18-21.

Officer Totaro testified as an expert witness on the driving training required for MPD officers, as

well as the MPD policy on vehicular pursuits that is taught to officers. In Officer Totaro’s expert

opinion, Mr. Sutton’s operation of the CST vehicle the night of Mr. Hylton-Brown’s death was

“inconsistent with the MPD training” on vehicular pursuits. Trial Tr. Nov. 15, 2022 p.m.

at 54:4-8. After reviewing body worn camera footage documenting the initial contact with Mr.

Hylton-Brown, Officer Totaro testified that an officer would be instructed to “let it go” rather

than engage in a pursuit in that situation. Id. at 57:11-13. Only if this were a felony stop or if

Mr. Hylton-Brown were armed and a danger to himself or others would a pursuit have been

consistent with MPD policy. Id. at 58:4-18; see Trial Tr. Nov. 17, 2022 a.m. at 32:21-33:1

(Captain Porter explained: “If it comes out and they’re just chasing them for traffic, I think it’s

reasonable to say everyone knows that traffic is not going to result in death or serious bodily

harm. It’s not a felony.”).

According to Officer Totaro, MPD officers learn to prioritize “safety” and

“accident avoidance.” Trial Tr. Nov. 15, 2022 a.m. at 65:17-21 (“Our goal is to get to the call

safely and effectively without any incident at all.”). Officer Totaro explained the concept of

“due regard,” meaning the “protection of life and property” while on patrol. Id. at 36:8-23; id. at

75:3-8 (the D.C. Code of Municipal Regulations requires MPD officers to “drive with due regard

for the safety of all persons”); id. at 77:16-18 (General Order 301.03 states: “When a member of

the [MPD] is engaged in a vehicular pursuit, the overriding responsibilities are the protection of

27

life and property”); see also Gov’t Ex. 401-D (MPD General Order 301.03 on Vehicular

Pursuits) at 1. Officer Totaro explained that when she instructs students, she tells them:

You don’t have to get them at all. You don’t have to apprehend

them. You don’t have to keep going after them. You can let them

go and that’s completely okay. It’s not a reflection upon you as an

officer or how well you do your job. It’s a city environment. You

have to realize where you are. It’s a city environment. And safety,

we go right back to due regard. Due regard is everything. You

know, maybe he’ll wreck. Maybe the suspect will wreck or maybe

he’ll do something that’s worse, but the thing is, is that we have to

be professional. And being professional sometimes means cutting

off the chase and turning away. . . .

Safety is everything. Maybe the person that you’re getting is driving

like, kind of like erroneously, disobeying, you already see if they’re

running stop lights and stop signs, sometimes it’s worth saying, you

know what? It’s not worth it. It’s not worth the chase. It’s not

worth getting them. . . . I tell the recruits, it’s not worth risking your

job. It’s not worth all these extra steps taken just because of them

running from you or them fleeing from you.

Trial Tr. Nov. 15, 2022 a.m. at 68:9-23, 70:13-22.

Consistent with the emphasis that MPD training places on the principle of “due

regard,” Officer Totaro also explained that if a pursuit “can lead to unnecessary property damage

or injury to anybody else . . . you [the officer] can terminate [the pursuit]. . . . If you see it’s

becoming too dangerous, then you have every right as an officer to stop that chase, regardless of

whatever official says continue on.” Trial Tr. Nov. 15, 2022 a.m. at 99:1-21; id. at 101:16-18

(“It’s always up to the driver to stop or terminate the pursuit, if it seems too dangerous.”). When

teaching classes of new officers about vehicular pursuits, Officer Totaro also tells them about

“tunnel vision,” and how it is easy for officers “to become fixated on an object or on something

that [they] need to get to, such that they “ignor[e] all of the conditions around” them. Id.

at 56:21-57-7. Officers are trained to “constantly cycle back and slow [themselves] down and

28

say ‘Is this worth going to at this speed? Is it worth ignoring simple stop signs and stop lights or

putting on our blinker?’” in order to stay focused and prevent tunnel vision. Id. at 57:15-20.

Officer Totaro further explained that an officer’s emergency lights and sirens

“give warning to the public.” Trial Tr. Nov. 15, 2022 p.m. at 59:15-16. She explained that

Officer Sutton’s failure to use the CST vehicle’s lights and sirens in the alleyway was

inconsistent with MPD policy, which requires the use of lights and sirens at all times during a

pursuit to “allow[] the public to know that [officers] are coming, that [they’re] going through an

area and to take heed of [officers’] approach.” Id. at 75:16-76:1. In Officer Totaro’s opinion,

turning off emergency lights and sirens in the alleyway “didn’t allow the public to hear that the

officer was coming or see them in a consistent way.” Id. at 80:1-6. 6

b. MPD General Order 301.03 on Vehicular Pursuits

In addition to presenting evidence about MPD officers’ training, the government

also introduced evidence regarding MPD’s written policies on vehicular pursuits. Officer Totaro

6

On a motion under Rule 29 of the Federal Rules of Criminal Procedure, “any

ruling must be decided on the basis of the evidence presented at the time the ruling was

reserved.” United States v. Wahl, 290 F.3d 370, 374-75 (D.C. Cir. 2002). Mr. Sutton and Mr.

Zabavsky raised Rule 29 motions at the close of the government’s case in chief, and the Court

reserved ruling on the motion at that time. Accordingly, “[a]ny ruling on that motion” must be

“made solely on the evidence offered by the government.” Id. at 375; see FED. R. CRIM. P. 29(b).

Although the Court may not – and does not – rely on any evidence presented after

it reserved ruling on the Rule 29 motions, the Court notes that the jury heard testimony from

Jonathan Urrutia-Chavez, the man who was driving the Scion that collided with Mr. Hylton-

Brown on October 23, 2020, during the defense case in chief. Consistent with Officer Totaro’s

testimony, Mr. Urrutia-Chavez explained that seeing and hearing police sirens would have

changed the way he drove on the night of the collision. Trial Tr. Nov. 30, 2022 a.m. at 22:3-9.

He explained that, ordinarily, he slows down and moves to the side of the road when he sees

police vehicle lights and hears sirens. Id. at 32:21-33:2. But, in the moments before Mr. Urrutia-

Chavez collided with Mr. Hylton-Brown, he “didn’t see any lights” or “see any police.” Id. at

33:6-7.

29

explained that a majority of the vehicle training that officers receive centers on MPD General

Order 301.03 on Vehicular Pursuits. Trial Tr. Nov. 15, 2022 p.m. at 34:22-25; id. at 76:7-13; see

generally Gov’t Ex. 401-D (MPD General Order 301.03 on Vehicular Pursuits). Officer Totaro

and Officer Tejera both testified that, consistent with General Order 301.03, MPD officers

generally can only pursue a person in or on a vehicle who is suspected of a felony offense. See

Trial Tr. Nov. 2, 2022 p.m. at 37:23-39:9 (Tejera testimony); Trial Tr. Nov. 15, 2022 a.m. at

78:16-80:13 (Officer Totaro testified that officers are taught that they need probable cause that a

person committed a felony and to believe that the fleeing suspect is a danger to public safety

before engaging in a vehicle pursuit); see also Gov’t Ex. 401-D at 2-4.

The government’s evidence also established that MPD officers generally do not

give chase to people only suspected of committing traffic violations. See Trial Tr. Nov. 17, 2022

a.m. at 104:1-5 (Captain Porter testified that, if someone asked to pursue a suspect for traffic

violations, he would tell that officer “come and see me in the captain’s office, okay, because I

guarantee you that officer knows that we’re not going to approve that chase”); Trial Tr. Nov. 8,

2022 p.m. at 34:15-35:10 (Officer Arnone testified that she would not conduct a vehicular

pursuit for a misdemeanor offense or a traffic offense such as operating a moped without a

helmet).

The MPD pursuit policy instructs officers to “conduct an investigation of the

incident and obtain a warrant” when a “fleeing suspect has committed an offense for which a

vehicular pursuit is not authorized.” Gov’t Ex. 401-D at 5; see Trial Tr. Nov. 2, 2022 p.m.

at 39:16-23 (Officer Tejera discussing General Order 301.03); Trial Tr. Nov. 15, 2022 a.m.

at 90:24-92:2 (Officer Totaro explained that she instructs officers to get warrants for fleeing

suspects who have committed offenses for which pursuits are not authorized). One of the

30

policy’s “rules” is that officers must “notify the dispatcher and discontinue the pursuit when

unsafe conditions exist or it becomes apparent that the vehicular pursuit could result in an

accident, property damage, or injury to citizens.” Gov’t Ex. 401-D at 3. The policy also

provides that officers pursuing suspects must “[i]mmediately notify the dispatcher” when a

pursuit begins and “[m]aintain constant communications with the dispatcher as the pursuit

progresses.” Id.

c. Testimony of Robert Drago

The government also presented expert testimony from Robert Drago, a retired law

enforcement officer and owner of the consulting company Eye to Eye. Trial Tr. Nov. 3, 2022

p.m. at 55:1-25. Mr. Drago testified as an expert in police training and national model police

practices, procedures, and policies. Id. at 82:10-12. Mr. Drago explained that in his opinion,

“the responsibility” for the consequences of a particular vehicle pursuit “is ultimately on law

enforcement because they have the training, they have the knowledge, not the person [the officer

is] pursuing.” Trial Tr. Nov. 3, 2022 p.m. at 104:3-18.

Mr. Drago explained that a number of considerations should factor into an

officer’s decision about whether and how to engage in a vehicular pursuit. Officers should

consider, for example, the weather conditions during the pursuit and the population density of the

area where a pursuit would occur. Trial Tr. Nov. 3, 2022 a.m. at 101:7-102:23. Mr. Drago also

explained that an officer should consider “the performance ability” of the vehicle that is being

pursued – for instance, an officer’s decisions about whether and how to pursue a sports car

would be different from that officer’s decisions about whether and how to pursue a car that

“should have been junked a year ago.” Id. at 103:1-21. When asked about vehicular pursuits of

people on scooters, Mr. Drago explained that, “[t]he driver of the scooter obviously is going to

31

have less safety equipment, you know, and probably [would be] at greater danger for greater

injury.” Id. at 103:22-104:2.

Mr. Drago walked through General Order 301.03 and explained that the MPD

pursuit policy is similar to the national model policy in several ways. He explained that the

MPD pursuit policy requires that officers suspect that a fleeing motorist has committed a violent

felony and poses an immediate, serious risk to public safety before a pursuit can begin. Trial Tr.

Nov. 3, 2022 p.m. at 115:8-116:7. Like the model national policy, the MPD policy also requires

that a pursuing officer “activate all emergency equipment” during a chase. Id. at 119:11-16; see

Trial Tr. Nov. 15, 2022 a.m. at 93:10-19 (Officer Totaro explained that MPD teaches and tests

on the requirement to have all emergency equipment activated during a pursuit). And, consistent

with the national standard, the MPD policy provides that a pursuit “shall be terminated” when

the fleeing motorist is identified, “so that a warrant can be obtained for his or her arrest.” Trial

Tr. Nov. 3, 2022 p.m. at 122:2-18. Mr. Drago also testified that MPD training regarding

vehicular pursuits instructs officers not to chase fleeing suspects into places where they “have no

area of escape.” Trial Tr. Nov. 3, 2022 p.m. at 132:4-14; see Gov’t Ex. 413-I (MPD vehicle

skills training PowerPoint); Trial Tr. Nov. 15, 2022 p.m. at 17:11-14 (Officer Totaro testified,

“You should never block . . . a path where they could escape.”).

C. The Government Met Its Burden as to Second Degree Murder

1. Malice Aforethought

The government was required to prove that Mr. Sutton acted with malice; that is,

that he acted with conscious disregard of an extreme risk of death or serious bodily injury. See

Jury Instructions at 27. The government’s evidence was sufficient to establish this element of

second degree murder.

32

The government introduced ample evidence of Mr. Sutton’s subjective knowledge

and training about vehicular pursuits, such that a reasonable jury could have concluded that his

actions demonstrated “a wanton and willful disregard of an unreasonable human risk.” Comber

v. United States, 584 A.2d at 39. Officer Totaro explained in great detail how officers –

including Mr. Sutton – are trained to exercise due regard and prioritize the safety of others

whenever they are behind the wheel. Several witnesses explained that an MPD officer should

never chase a suspect for traffic violations, and Officers Totaro and Tejera both explained that it

would be easier to get a warrant for the fleeing person instead of engaging in a pursuit. The

government’s evidence also made clear that Mr. Hylton-Brown was not suspected of any violent

crime or possession of a weapon, and that Mr. Sutton was aware that Mr. Hylton-Brown was

riding the moped without a helmet. Officer Totaro and Mr. Drago also testified that a police

vehicle’s lights and sirens must be consistently activated during a chase to ensure that other

people in the area are aware of police presence and can respond appropriately. And, about a year

and a half before this incident, Mr. Sutton received an official reprimand for failing to comply

with MPD’s general order on vehicular pursuits. This reprimand letter restated important aspects

of the MPD vehicular pursuit policy.

Despite Mr. Sutton’s training, experience, and knowledge of MPD policy, Mr.

Sutton continued to pursue Mr. Hylton-Brown through the residential neighborhood for several

minutes, making multiple turns and reaching speeds up to forty-five miles per hour to keep Mr.

Hylton-Brown in view of the CST vehicle. Mr. Sutton followed Mr. Hylton-Brown into an

alleyway, where he turned off the CST vehicle’s emergency lights and sirens. Based on these

facts, a jury was entitled to infer that Mr. Sutton was subjectively aware that his actions placed

Mr. Hylton-Brown, who rode a moped without a helmet, at “a serious risk of death or serious

33

bodily harm.” Comber v. United States, 584 A.2d at 39 (quoting Logan v. United States, 483

A.2d at 671); see Jennings v. United States, 993 A.2d at 1080.

Mr. Sutton makes several arguments about why the government’s evidence was

insufficient to establish that he acted with malice. He first argues that no rational juror could

conclude that he violated General Order 301.03 on Vehicular Pursuits for a variety of reasons:

the CST vehicle’s speed had “nothing to do with compliance with the general order”; Mr.

Zabavsky authorized the pursuit by calling it a “chase” over the Ops radio channel; the general

order does not require officers to consider the safety of fleeing suspects; and, because Mr.

Hylton-Brown was not a “fleeing felon,” Mr. Sutton’s chase was not technically a “pursuit” as

that term is defined in the general order. See Sutton Mot. at 14-15. As the government argues,

Mr. Sutton’s assertions on this score fail to consider the evidence in the light most favorable to

the government, as the Court must on a motion under Rule 29. See Gov’t Opp. at 11 n.4; see

also United States v. Kayode, 254 F.3d at 212-13; United States v. Borda, 848 F.3d 1044, 1055

(D.C. Cir. 2017). Although the jury could have concluded that Mr. Sutton did not violate the

general order, it was also reasonable for the jury to conclude, based on the government’s

evidence, that Mr. Sutton did violate the general order: Mr. Sutton failed to keep his emergency

lights and sirens turned on; he began his pursuit of Mr. Hylton-Brown when Mr. Hylton-Brown

had only committed minor traffic offenses; and he neglected to broadcast his pursuit over the

main radio channel. Mr. Sutton’s argument that no reasonable juror could have concluded that

he violated General Order 301.03 on Vehicular Pursuits is not persuasive.

Mr. Sutton next argues that the government’s only evidence of malice is his

alleged noncompliance with the General Order 301.03 on Vehicular Pursuits, and that this

evidence is necessarily insufficient to establish malice. He asserts that “[t]he government’s

34

entire case . . . was focused exclusively on its contentions that Ofc. Sutton violated the MPD

General Policy on Pursuits. There is no other evidence of ‘depraved heart malice’ in this case.”

Sutton Mot. at 17; see June 5, 2023 Hearing Tr. at 7:24-8:4 (“[T]he question is whether outside

of the evidence of vehicular pursuit, whether the government has any independent evidence at all

in what they describe as the conduct of Officer Sutton that, as a matter of law, would be

sufficient to support either component of depraved heart malice.”). Because the government

only presented evidence relating to whether Mr. Sutton violated the general order, Mr. Sutton

argues, the government’s evidence was necessarily insufficient to establish that he acted with

malice, as the jury was prohibited from relying solely on evidence that Mr. Sutton violated the

general order when determining guilt. See Sutton Mot. at 13, 17-18; Sutton Reply at 5-6. To

prove its case, Mr. Sutton contends, the government must present evidence of depraved heart

malice that is “independent of violations of MPD General Orders.” Sutton Reply at 5.

In admitting MPD General Orders, including General Order 301.03, as evidence

of Mr. Sutton’s state of mind, the Court instructed the jury that:

The government has introduced evidence regarding certain MPD

general orders. And one in particular is the MPD general order on

vehicular pursuits. The MPD general orders set internal policy for

the Metropolitan Police Department. The general orders are not

laws. Their provisions are administered exclusively by the

Metropolitan Police Department.

It is up to you whether to accept or reject the evidence that you

heard, and any testimony from any witnesses about the Metropolitan

Police Department general order on vehicular pursuits. If you find

when you deliberate that one or more of the officers on trial violated

this general order, you may consider the general order as only one

factor in deciding whether the defendants had the necessary mental

state or state of mind underlying the crimes charged.

35

You may not find either defendant guilty of anything merely

because they violated the general order, if you conclude that they

did violate the general order.

Jury Instructions at 17 (emphasis added).

Mr. Sutton is correct that evidence that he violated General Order 301.03 on

Vehicular Pursuits is not sufficient, by itself, to prove that he acted with malice – as the jury was

instructed. See Jury Instructions at 17. But Mr. Sutton is incorrect that the government’s only

evidence of malice was his noncompliance with General Order 301.03. The government

presented evidence about national policing standards through the expert testimony of Robert

Drago and evidence about MPD vehicle skills training through the expert testimony of Carolyn

Totaro. Although both Mr. Drago and Officer Totaro discussed General Order 301.03, their

testimony provided additional evidence for the jury to consider when determining whether Mr.

Sutton acted with malice. Mr. Drago, for example, discussed the weather and vehicle conditions

that should factor into an officer’s decision to engage in a vehicular pursuit. Officer Totaro

provided the jury with additional context for why officers must abide by the rules and regulations

provided in General Order 301.03, and after watching Mr. Sutton’s body worn camera footage,

she explained that she would instruct an officer in Mr. Sutton’s position to “let it go” rather than

continue the pursuit. See Trial Tr. Nov. 15, 2022 p.m. at 57:13. Officer Totaro also testified at

length about the principle of “due regard” and that MPD officers are trained to prioritize safety

and accident avoidance. The jury was therefore able to rely on evidence independent of the

violation of General Order 301.03 when deliberating.

The Court also disagrees with Mr. Sutton’s assertion that a judgment of acquittal

is required because the government failed to present evidence that was “independent” of his

conduct that potentially violated MPD General Orders. See Sutton Reply at 5. Mr. Sutton

36

contends that the government’s evidence was necessarily insufficient to prove malice because

“the government’s entire case was based on evidence and argument that Ofc. Sutton violated

MPD General Orders,” which is insufficient on its own to establish guilt. See Sutton Mot. at 4;

Sutton Reply at 4. As just discussed, the jury was able to find based on the government’s

evidence that Mr. Sutton violated General Order 301.03. But whether Mr. Sutton violated this

policy is not the central issue here. The government appropriately used the standards set forth in

General Order 301.03 – and evidence of the training that Mr. Sutton received about vehicular

pursuits more broadly – to establish Mr. Sutton’s subjective awareness of the level of risk that

attended his decision to follow a motorist who wore no helmet, in a city environment, at night,

without the consistent use of emergency lights and sirens, and at relatively high speeds. See

June 5, 2023 Hearing Tr. at 58:22-59:7 (government counsel argued that the “MPD general

orders tell the jury that [Mr. Sutton] was on notice [of] ways in which he was to behave”). The

government also introduced substantial evidence about Mr. Sutton’s conduct – his actions,

choices, and the circumstances in which he made those choices. Just because his conduct was

“part and parcel of the chase” that could be considered a violation of MPD policy does not make

such evidence insufficient as a matter of law to establish malice. See Sutton Reply at 5.

Relatedly, Mr. Sutton argues that the government’s evidence was insufficient to

prove malice because the “rules” and “regulations” contained in General Order 301.03 are

“discretionary” and “subjective” guidelines. Sutton Mot. at 16; Sutton Reply at 7-8; see Gov’t

Ex. 401-D (MPD General Order 301.03 on Vehicular Pursuits) at 1-3. He maintains that this

case is analogous to United States v. Wood, 207 F.3d 1222 (10th Cir. 2008). There, a medical

doctor, Dr. Wood, was prosecuted for second degree murder following the death of a patient who

had been “drowning” from “excess fluid in his lungs.” Id. at 1227. Believing the patient’s

37

condition to be life-threatening, Dr. Wood administered potassium chloride to the patient in an

amount and at a pace that exceeded hospital policies. Id. at 1230, 1232. The Tenth Circuit held

that the district court erred by denying Dr. Wood’s motion for judgment of acquittal as to second

degree murder. Id. at 1229. According to Mr. Sutton, the Tenth Circuit “concluded that the

standard of care applicable to the circumstances allowed for a range of justifiable medical

judgments,” and therefore it was inappropriate to send a charge of second degree murder to the

jury. Sutton Reply at 7-8. Analogously, Mr. Sutton argues, where MPD general orders “set a

policy for policing which is discretionary and subjective,” the government’s theory that Mr.

Sutton “violated professional standards applicable to MPD officers” is insufficient to prove

malice as a matter of law. Id. at 8.

The Tenth Circuit’s opinion in United States v. Wood, however, is inapposite.

The court in Wood found the facts of that case insufficient to support an inference of malice

because:

Dr. Wood’s treatment of [the patient] involved a choice between

several courses of action, some of which were more risky, but

perhaps more efficacious, than others. A physician cannot be

convicted of murder simply for adopting, in an emergency setting, a

risky course of action intended to prolong life that, when carried out,

fails to forestall or even hastens death. Instead, to permit a charge

of murder with malice aforethought to go to the jury, that choice

must be not only a gross deviation from a reasonable standard of

care, but also extremely reckless and wanton. Dr. Wood’s good-

faith efforts at treatment simply do not rise to the “extreme”

disregard for human life necessary to satisfy the malice aforethought

standard.

United States v. Wood, 207 F.3d at 1232 (internal citations omitted).

Unlike Dr. Wood, Mr. Sutton was not responding to a life-threatening emergency.

The government’s evidence made clear that Mr. Hylton-Brown was not suspected of a violent

crime or possessing a firearm; he was being stopped for a traffic violation, and pursued, at best,

38

for failing to pull over. Mr. Sutton’s decision to chase him through the neighborhood and

through a narrow alley was not “a choice between inherently risky courses of action undertaken

in a good faith effort to prolong the victim’s life.” Id. at 1233. Although Mr. Sutton may be

correct that the general orders are “guidelines for officers subject always to the exercise of

discretion,” see Sutton Mot. at 16, the fact that the MPD general orders require police officers to

make judgment calls does not mean that the general orders may not be relevant evidence of Mr.

Sutton’s subjective awareness of potential risks to human life. A person may have discretion to

make a number of choices that constitute reasonable decisions consistent with the appropriate

standard of care. It is only when a person’s choice “amount[s] to the extremely reckless and

wanton disregard for life” that such an exercise of discretion can be said to “grossly deviate”

from the standard of care. United States v. Wood, 207 F.3d at 1232-33. Unlike in United States

v. Wood, it was reasonable for the jury in this case to conclude that Mr. Sutton’s conduct

“display[ed] an extreme disregard for the wellbeing of others” based on the evidence the

government presented. Id. at 1233.

To prove that Mr. Sutton acted with malice, the government was required to

establish that Mr. Sutton acted with a “depraved heart,” meaning that he was “subjectively aware

that his . . . conduct create[ed] an extreme risk of death or serious bodily injury.” Jennings v.

United States, 993 A.2d at 1080 (quoting Comber v. United States, 584 A.2d at 39); see July

Mot. to Compel Op. at *2. As the Court has explained:

Whether a particular defendant acted with a “depraved heart” “may

be shown by a ‘gross deviation from a reasonable standard of care’

or by other acts that may lead the finder of fact to determine that the

‘defendant was aware of a serious risk of death or serious bodily

harm.’” Jennings v. United States, 993 A.2d at 1080 (quoting

Comber v. United States, 584 A.2d at 39).

39

July Mot. to Compel Op. at *3 (emphasis added). See Jury Instructions at 27; Answer to Jury

Note 01 [Dkt. No. 421] (“The government must prove beyond a reasonable doubt that Mr. Sutton

acted with a reckless and wanton disregard for human life that was extreme in nature, and that

Mr. Sutton was aware that his conduct created an extreme risk of death or serious bodily

injury.”).

The jury was tasked with determining whether Mr. Sutton’s familiarity with MPD

policies, his general training and experience, and his awareness that Mr. Hylton-Brown was not

wearing a helmet made him subjectively aware that pursuing Mr. Hylton-Brown in the manner

that he did would create an extreme risk of death or serious bodily injury and whether he acted

with conscious disregard of that risk. It was not unreasonable for the jury to conclude, based on

the evidence presented by the government, that Mr. Sutton was consciously, subjectively aware

of the extreme risk to Mr. Hylton-Brown, and that he chose to disregard that risk when he chased

Mr. Hylton-Brown down the alleyway in a manner inconsistent with MPD training and policies.

Because the government was able to establish malice by showing that Mr. Sutton acted with

conscious disregard of an extreme risk of death or serious bodily injury, whether the MPD

General Order on Vehicular Pursuits provides a “definitive professional standard” is not

dispositive. See Sutton Reply at 8.

2. Causation

As Officer Tejera’s body worn camera footage depicted, Mr. Sutton attempted to

initiate a traffic stop on Mr. Hylton-Brown, who did not comply. Mr. Sutton then pursued Mr.

Hylton-Brown for at least two minutes. Mr. Sutton followed Mr. Hylton-Brown into an

alleyway, where Mr. Sutton turned off his emergency lights and sirens; only seconds before the

collision, Mr. Sutton accelerated. Absent Mr. Sutton’s decision to pursue, Mr. Hylton-Brown

40

would not have died. See June 5, 2023 Hearing Tr. at 53:7-8 (government counsel arguing that,

“[a]bsent that pursuit, Mr. Hylton-Brown would be here today”); Fleming v. United States, 224

A.3d at 221 (“[T]he actual-cause requirement means that . . . if one subtracted the defendant’s

actions from the chain of events, the decedent would not have been killed.”). These facts are

sufficient for a reasonable jury to have concluded that Mr. Sutton was the but-for cause of Mr.

Hylton-Brown’s death. See Jury Instructions at 29 (defining “but-for cause” and “proximate

cause”).

As to proximate cause, it was also reasonable for the jury to find that the

government had proved beyond a reasonable doubt that Mr. Sutton’s conduct bore a close

connection to Mr. Hylton-Brown’s death. The government argues, and the Court agrees, that the

jurors saw evidence of proximate causation: they “saw and heard how in the final ten seconds of

the chase, Defendant Sutton followed Hylton-Brown into a narrow alley, turned off his lights and

sirens, and accelerated.” June 5, 2023 Hearing Tr. at 53:10-13. The government also presented

testimony from Officer Totaro about how police must keep their lights and sirens on to alert

other people, including other drivers, to the presence of police. Based on this evidence, and with

all inferences being drawn in favor of the government, a reasonable jury could conclude that Mr.

Hylton-Brown’s death was not a “mere fortuity.” Paroline v. United States, 572 U.S. at 445.

Evidence of Mr. Sutton’s training and experience also supports a finding of

proximate cause. Mr. Sutton was familiar with Mr. Hylton-Brown and the Kennedy Street

neighborhood. He had been trained to keep his emergency lights and sirens turned on whenever

stopping or pursuing a suspect, to ensure that other drivers are aware of and can account for

police activity. It was not unreasonable for the jury to conclude that it was “reasonably

foreseeable” to Mr. Sutton that Mr. Hylton-Brown would be seriously injured as a result of being

41

chased on a moped, without a helmet, through the city’s streets at nighttime – particularly given

the lack of consistent police lights and sirens. See Fleming v. United States, 224 A.3d at 225.

Notwithstanding evidence and testimony about how far Mr. Sutton’s vehicle was from the site of

the collision, see Trial Tr. Dec. 9, 2022 p.m. at 40:10-18, the government’s evidence was

sufficient to establish both but-for and proximate causation.

Mr. Sutton argues that no reasonable juror could find beyond a reasonable doubt

that he caused Mr. Hylton-Brown’s death because “the cause of the collision was the conduct of

Hylton-Brown himself.” Sutton Mot. at 18-19; see Trial Tr. Nov. 21, 2022 p.m. at 25:11-13

(defense counsel argued that Mr. Hylton-Brown’s death was caused by “an entirely voluntary act

by Karon Hylton-Brown”). He suggests that Officer Tejera’s body worn camera footage shows

Mr. Hylton-Brown “look to his left in the direction of the oncoming Scion” and “brake twice and

turn to the left, at the last second turning a bit more to the left to avoid the oncoming Scion.”

Sutton Reply at 12. This argument is one for the jury, not for the Court on a motion for

judgment of acquittal. As the Court has explained, District of Columbia law allows for a person

to be held “criminally responsible for causing a death even though the death would not have

occurred but for the reasonably foreseeable intervening acts of another.” Fleming v. United

States, 224 A.3d at 225. A jury certainly could have determined that Mr. Hylton-Brown’s own

actions attenuated the connection between his death and Mr. Sutton’s conduct. But this

conclusion is not required as a matter of law, and based on the evidence the government

presented at trial, a reasonable juror could find that Mr. Sutton was both the actual and proximate

cause of Mr. Hylton-Brown’s death.

Mr. Sutton also contends that the government’s framing of the evidence – that Mr.

Sutton “flushed” Mr. Hylton-Brown into Kennedy Street, where he was struck and killed by

42

another vehicle – was “not charged in the indictment” and therefore should not be permitted to

support the verdict. Sutton Reply at 10; see Indictment ¶ 29 (alleging that Mr. Sutton “caused a

traffic collision from which Hylton-Brown sustained injuries and died”). The Court is not

persuaded. A reasonable jury could conclude that Mr. Sutton caused Mr. Hylton-Brown’s death

by flushing him out of the alleyway. Furthermore, as the Court instructed the jury, “statements

and arguments of the lawyers . . . are not evidence.” See Jury Instructions at 6. It is immaterial

to the Court’s inquiry on a Rule 29 motion whether the government’s “flushing” rhetoric

appeared in the indictment. As long as the government’s evidence was sufficient to establish

both actual and proximate causation, the Court may not enter a judgment of acquittal merely

because of the rhetoric used to describe Mr. Sutton’s conduct in the arguments of government

counsel.

Finally, Mr. Sutton argues that the causation instruction given to the jury amounts

to a directed verdict, as it instructed the jury to conclude that Mr. Hylton-Brown’s fatal injury

was “inflicted by a third party.” Sutton Reply at 13-15 (quoting Jury Instructions at 29). The

jury instructions state, in relevant part, that “[t]here is evidence in this case that defendant Sutton

did not personally inflict Mr. Hylton-Brown’s fatal injury and that Mr. Hylton-Brown’s fatal

injury was inflicted by a third party.” Jury Instructions at 29. Mr. Sutton argues that this

instruction “meant that the jury was to disregard Hylton-Brown’s conduct as the cause of his

own death.” Sutton Reply at 14. As previously noted, “motions for an acquittal based on

insufficient evidence cannot depend on jury instructions.” United States v. Khatallah, 41 F.4th

at 626. This argument is not appropriately raised in Mr. Sutton’s motion for judgment of

acquittal and is more appropriately addressed in Mr. Sutton’s Rule 33 motion. See id. (“[I]t does

not matter for [a defendant’s] sufficiency of the evidence challenge if the jury was provided with

43

an erroneous path to a guilty verdict . . . as long as a properly instructed jury had enough

evidence for conviction.”).

The government presented substantial evidence that Mr. Sutton was consciously

aware of an extreme risk to human life when he chased Mr. Hylton-Brown, but that he

disregarded that risk and continued a pursuit in violation of MPD trainings and policies. His

motion for judgment of acquittal as to second degree murder is denied.

IV. COUNT THREE AND COUNT TWO:

OBSTRUCTION OF JUSTICE AND CONSPIRACY TO OBSTRUCT JUSTICE

A. Elements of the Offenses

1. Obstruction of Justice

The obstruction of justice statute makes it a crime to “engage[] in misleading

conduct toward another person, with intent to . . . hinder, delay, or prevent the communication to

a law enforcement officer . . . of the United States of information relating to the commission or

possible commission of a Federal offense.” 18 U.S.C. § 1512(b)(3).

The Court explained to the jury that the government must prove the following

elements of obstruction of justice beyond a reasonable doubt:

1. The defendant engaged in misleading conduct, or attempted to

do so, toward another person – in this case, other officials of the

Metropolitan Police Department; and

2. The defendant acted knowingly; and

3. The defendant acted with the specific intent to hinder, delay or

prevent the communication of information; and

4. It was reasonably likely that the information would have been

communicated to a law enforcement officer of the United States;

and

5. That the information related to the commission or the possible

commission of a federal offense.

Jury Instructions at 30. The Court further instructed the jury that:

“Misleading conduct” includes

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(1) knowingly making a false statement;

(2) intentionally omitting information from a statement and

thereby causing a portion of such statement to be misleading;

(3) intentionally concealing a material fact, and thereby creating a

false impression by such statement;

(4) with the intent to mislead, knowingly submitting or inviting

reliance on a writing that is false; or

(5) knowingly using a trick, scheme, or device with intent to

mislead.

“Specific intent” means that the defendant did so voluntarily, on

purpose, and not by mistake or accident.

Jury Instructions at 30-31. Finally, the Court explained:

Because the statute explicitly refers to the possible commission of a

federal offense, the government need not prove that any person was

actually guilty of any underlying federal offense.

Jury Instructions at 31. 7

The first three elements of the obstruction of justice offense are relatively

straightforward. “Misleading conduct” is defined by statute. See 18 U.S.C. § 1515(a)(3).

7

The Court also instructed the jury that “the government further alleges that the

defendants aided and abetted each other in committing Obstruction of Justice,” and that both Mr.

Sutton and Mr. Zabavsky could be found guilty of that offense if they “intentionally

participate[d] in the commission of [the] crime” even if they did not “personally commit[] each

of the acts that make up the crime.” Jury Instructions at 32. The Court instructed that, for a

conviction based on aiding and abetting, the jury must find that either Mr. Sutton or Mr.

Zabavsky

. . . knowingly associated himself with the commission of the crime,

that he participated in the crime as something he wished to bring

about, and that he intended by his actions to make it succeed. Some

affirmative conduct by the defendant in planning or carrying out the

crime is necessary. Mere physical presence by a defendant at the

place and time the crime is committed is not by itself sufficient to

establish his/her guilt. However, mere physical presence is enough

if it is intended to help in the commission of the crime. It is not

necessary that you find that the defendant was actually present while

the crime was committed.

Jury Instructions at 32.

45

Section 1512(b)(3)’s knowledge element requires that a person knows that his or her conduct

toward another person is misleading. See United States v. Brown, 934 F.3d 1278, 1301 (11th

Cir. 2019) (affirming denial of motion for judgment of acquittal where “a reasonable jury could

have found that [the defendant’s] statements and omissions were knowingly misleading”);

United States v. Carson, 560 F.3d 566, 580 (6th Cir. 2009) (“[T]o obtain a conviction for

obstruction of justice under 18 U.S.C. § 1512(b)(3), the government must prove that the

defendant . . . knowingly and willfully engaged in misleading conduct toward another person.”).

And Section 1512(b)(3)’s specific intent element requires the government to prove that a person

had the purpose of hindering, delaying, or preventing some communication of information to

federal law enforcement. See, e.g., United States v. Hertular, 562 F.3d 433, 443-44 (2d Cir.

2009) (“On this record, a reasonable factfinder could easily have concluded that . . . [the

defendant’s] specific intent was to hinder or prevent not simply the filing of an indictment but

any communication to or among federal law enforcement officials that could lead to his

indictment.”); United States v. Brown, 934 F.3d at 1300-01 (a reasonable jury could have found

that the defendant intended to hinder federal law enforcement officers where the evidence

established that he provided misleading statements during an interview with federal

investigators).

Mr. Sutton and Mr. Zabavsky’s primary focus is on the fourth and fifth elements

of obstruction of justice. The fourth element requires that a federal law enforcement officer be

the potential recipient of some communication, and the fifth element requires that the

information potentially communicated relates to the commission or possible commission of a

federal offense. The defendants refer to these elements as the “federal nexus,” which the

government must prove for a person’s conduct to constitute federal obstruction of justice.

46

The Supreme Court’s decision in Fowler v. United States, 563 U.S. 668 (2011),

elucidates the fourth element of Section 1512. There, the Court explained that a person does not

need to know that a law enforcement officer is a federal officer for their conduct to fall within

the bounds of Section 1512(a)(1)(C), which prohibits witness tampering. Id. at 677-78; see

United States v. Johnson, 874 F.3d 1078, 1081 (9th Cir. 2017) (Fowler “applies with equal force

to § 1512(b)(3),” obstruction of justice, which shares “the same fundamental purpose and scope

as subsection (a)(1)(C)”). The fourth element is satisfied where it is “reasonably likely under the

circumstances that . . . at least one of the relevant communications would have been made to a

federal officer.” Fowler v. United States, 563 U.S. at 678; see United States v. Snyder, 865 F.3d

490, 496 (7th Cir. 2017) (“[Section] 1512 requires showing a reasonable likelihood” of a

communication to “a federal officer, not a state or local officer”); United States v. Ring, 628 F.

Supp. 2d 195, 219 (D.D.C. 2009) (“[T]he government need only show that ‘the misleading

information’ was ‘likely to be transferred to a federal agent.’”) (quoting United States v. Veal,

153 F.3d 1233, 1251 (11th Cir. 1998), rev’d on other grounds by Fowler v. United States, 563

U.S. at 678). See also United States v. Ronda, 455 F.3d 1273, 1288 (11th Cir. 2006)

(Section 1512(b)(3) “criminalizes the transfer of misleading information” (quoting United States

v. Veal, 153 F.3d at 1252)).

The fifth element of obstruction of justice requires that the information at issue –

the communication of which a defendant intends to hinder, prevent, or delay – relates to some

possible federal offense. See 18 U.S.C. § 1512(b)(3). Section 1512(b)(3) “does not require that

a defendant know the federal nature of the crime” so long as the “misleading information . . .

actually relates to a potential federal offense.” United States v. Veal, 153 F.3d at 1252; see

United States v. Chafin, 808 F.3d 1263, 1273-74 (11th Cir. 2015). The statute “applies only to

47

obstructive behavior that the defendant knows could impede an investigation into conduct that

could constitute a federal crime at the time of its commission,” though it “does not require that

the defendant specifically know that the underlying conduct could constitute a federal offense.”

United States v. Bailey, 405 F.3d 102, 109 (1st Cir. 2005); id. at 109 n.3; see United States v.

Snyder, 865 F.3d at 494 (“The statute does not require proof that the defendant knew the federal

status of the officer or underlying proceeding.”). See also United States v. Rodriguez-Marrero,

390 F.3d 1, 13 (1st Cir. 2004) (it is “irrelevant” for the purpose of Section 1512 that a person

“did not realize that he was helping to conceal a federal crime”); United States v. Hawkins, 185

F. Supp. 3d 114, 124-25 (D.D.C. 2016) (enumerating the elements of obstruction of justice).

During litigation of the pretrial motions in this case, this Court held that the fifth

element of Section 1512(b)(3) required the government to “prove ‘the possible existence of a

federal crime and a defendant’s intention to thwart an inquiry into that crime.’” Bill of

Particulars Op. at *8 (quoting United States v. Ring, 628 F. Supp. 2d at 200); see id. (“Thwarting

an investigation before it can begin is sufficient.”). The Court further explained that “the

prosecution is not conditioned on a federal civil rights investigation or federal civil rights

prosecution ever coming into existence.” Mot. to Dismiss Oral Ruling at 28:20-23; see April

Mot. to Compel Op. at *7 (“By its own terms, the statute criminalizes obstructing the

transmission of information about an actual or potential federal offense.”).

Thus, the fifth element of obstruction of justice – commission or possible

commission of a federal offense – does not require that the government prove that a federal

offense actually has occurred, nor does it require that a federal offense has been in fact

investigated or charged. As the Court has explained, the obstruction of justice statute “does not

require that any federal civil rights investigation actually have occurred, let alone that the

48

existence of one be pled in the indictment. Rather, the government need only prove ‘the possible

existence of a federal crime.’” Bill of Particulars Op. at *8 (quoting United States v. Ring, 628

F. Supp. 2d at 220); see April Mot. to Compel Op. at *7; Mot. to Dismiss Oral Ruling

at 26:21-27:1.

This Court’s prior rulings are consistent with decisions from courts of appeals.

When it comes to the possible federal offense underlying a Section 1512(b)(3) charge, the First

Circuit has explained that “the dispositive issue is the federal character of the investigation, not

guilty verdicts on any federal offenses that may be charged.” United States v. Baldyga, 233

F.3d 674, 681 (1st Cir. 2000). The Third Circuit has held that guilt under Section 1512(b)(3)

“does not depend on the existence or imminency of a federal investigation but rather on the

possible existence of a federal crime.” United States v. Guadalupe, 402 F.3d 409, 411 (3d Cir.

2005). The Fourth Circuit has rejected the argument that the government failed to satisfy the

federal offense element of Section 1512 where a person’s underlying offense was ultimately

prosecuted as a state crime, concluding that “the fact that the underlying crime could have been

prosecuted under both state and federal law” did not preclude prosecution under Section 1512.

United States v. Ramos-Cruz, 667 F.3d 487, 498 (4th Cir. 2012). And the Second Circuit has

similarly rejected a defendant’s attack on his Section 1512(b)(3) conviction because his ultimate

conspiracy prosecution was “a classic state case consisting of classic state charges.” United

States v. Veliz, 800 F.3d 63, 74 (2d Cir. 2015). Where there is a possible federal offense, it is

irrelevant under Section 1512(b)(3) that the crimes could also be pursued by state prosecutors or

that the underlying offense is never prosecuted at all. Id.

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2. Conspiracy

To prove a conspiracy, the government must establish that a person (1) “enter[ed]

into an agreement with at least one other person to commit a specific offense”; (2) that the

person “knowingly participate[ed] in the conspiracy with the intent to commit the offense”; and

(3) that at least one member of the conspiracy has committed “at least one overt act . . . in

furtherance of the conspiracy.” United States v. Smith, 950 F.3d 893, 895 (D.C. Cir. 2020)

(quoting United States v. Gatling, 96 F.3d 1511, 1518 (D.C. Cir. 1996)); see Ocasio v. United

States, 578 U.S. 282, 287 (2016) (“[T]he fundamental characteristic of a conspiracy is a joint

commitment to an ‘endeavor which, if completed, would satisfy all of the elements of [the

underlying substantive] criminal offense.’”) (quoting Salinas v. United States, 522 U.S. 52, 65

(1997)). An agreement may be “inferred from the facts and circumstances of the case.” Iannelli

v. United States, 420 U.S. 770, 777 n.10 (1975).

The Court gave the following jury instructions explaining the elements of

conspiracy:

1. That Terence Sutton and Andrew Zabavsky agreed to commit

the crime of Obstruction of Justice. . . .

2. That Terence Sutton and Andrew Zabavsky intentionally joined

in that agreement. . . . [and]

3. That at least one of the defendants did something for the purpose

of carrying out the conspiracy. This something is referred to as

an overt act.

Jury Instructions at 33-34. The Court provided the jury with an appendix of alleged overt acts,

see id. at 36-38, and instructed the jury that it had to unanimously agree on one or more specific

overt acts that were committed. Id. at 34. The jury unanimously found that the government

proved beyond a reasonable doubt Overt Act Thirteen, which stated:

50

At the Fourth District police station, Sutton and Zabavsky met with

the Watch Commander, the senior-most official in charge, and

provided him with a misleading account of the incident:

a. Sutton and Zabavsky portrayed the incident as a brief

attempted traffic stop from which a moped driver took off and

was then hit by a vehicle;

b. Sutton minimized his conduct, saying that he did not engage

in a vehicular pursuit;

c. Zabavsky said that he did not know if Sutton had engaged in a

vehicular pursuit;

d. Zabavsky withheld information concerning his own

involvement in the pursuit;

e. Zabavsky said that Hylton-Brown had been drunk and had

been slurring his words; and,

f. Sutton and Zabavsky withheld all information about Hylton-

Brown’s serious injuries.

Jury Instructions at 37-38; see Verdict Form [Dkt. No. 426] at 2.

B. Facts Established at Trial

1. The Pursuit

In addition to the facts described above, the government produced ample evidence

at trial in support of the obstruction of justice and conspiracy counts as to both Mr. Sutton and

Mr. Zabavsky.

Testimony from Officer Tejera established that Mr. Zabavsky was involved in the

attempted traffic stop and pursuit of Mr. Hylton-Brown from the earliest stages of the chase.

Officer Tejera explained that: “He [Mr. Zabavsky] was with us when we were following Karon.

He was – for all I know, he was part of the whole incident.” Trial Tr. Nov. 2, 2022 p.m.

at 66:19-68:1. Similarly, Captain Porter explained that he believed, based on his conversations

with Mr. Zabavsky later that night, that Mr. Zabavsky was “paralleling the chase.” Trial Tr.

Nov. 17, 2022 a.m. at 83:11-84:7; id. at 86:4-13 (Captain Porter believed Mr. Zabavsky was

“trying to intercept the moped from a different direction”). Captain Porter also explained that he

51

concluded definitively that Mr. Sutton was engaged in a chase after reviewing Officer Tejera’s

body worn camera footage and observing that Mr. Sutton followed Mr. Hylton-Brown the wrong

way down a one-way street. Trial Tr. Nov. 17, 2022 a.m. at 79:14-80:15.

The government also introduced evidence about MPD’s policies for using the

shared police radio. Witnesses explained that all officers have access to the general Fourth

District radio channel, also called the “main” channel. See Trial Tr. Oct. 26, 2022 p.m.

at 95:14-99:17 (Ricardi testimony); Trial Tr. Nov. 15, 2022 a.m. at 87:6-88:17 (Totaro

testimony). Officer Totaro explained that part of the reason why officers must broadcast their

pursuits on the main channel is so that supervising officers can order that a pursuit be terminated

if the pursuit is too dangerous or otherwise violates MPD policies. Id. Members of CST also

have access to a separate radio channel, just for members of that team, which witnesses referred

to as the “Ops” channel. Id.; see Gov’t Ex. 221-A (Ops channel radio recording); Gov’t

Ex. 221-B (Fourth District main channel radio recording). Pursuant to MPD General

Order 301.03 on Vehicular Pursuits, officers engaged in vehicular pursuits are instructed to

broadcast that information over the main channel, so that everyone in the district can be aware of

the pursuit’s location. See Gov’t Ex. 401-D (MPD General Order 301.03 on Vehicular Pursuits)

at 4; Trial Tr. Nov. 15, 2022 p.m. at 61:17-62:22 (Officer Totaro opined that using the Ops

channel instead of the main channel to broadcast information about an ongoing pursuit violated

General Order 301.03).

The government’s evidence indicated that Mr. Sutton and Mr. Zabavsky only

communicated about the chase on the Ops channel, not on the main channel. See Gov’t

Ex. 221-A (Ops channel radio recording); Trial Tr. Oct. 26, 2022 p.m. at 95:14-99:17 (Ricardi

testimony); id. at 100:10-21. On the Ops channel recording, Mr. Zabavsky can be heard saying

52

“We’re chasing Karon on a scooter right now.” Gov’t Ex. 221-A. Mr. Sutton’s voice can also

be heard on the Ops channel recording, as he broadcasted his location at various intervals during

the pursuit. Id. The last location Mr. Sutton announced over the Ops channel radio before the

collision was “Eighth and Jefferson.” Id.; see Trial Tr. Oct. 26, 2022 p.m. at 107:3-108:7

(Ricardi testimony). The government’s evidence suggested that at no time prior to the collision

did any of the four officers in the CST vehicle use the main channel to broadcast information

about their interaction with or pursuit of Mr. Hylton-Brown. See Trial Tr. Nov. 17, 2022 a.m.

at 47:23-49:19 (Captain Porter testified that he first heard about this incident over the main radio

channel a little after 10:00 p.m. the night of October 23, 2020); Trial Tr. Nov. 11, 2022 p.m.

at 68:11-69:6 (Officer Al-Shrawi testified that Mr. Sutton used the Ops channel, not the main

channel, to broadcast information about the pursuit and the CST vehicle’s location); see also

Gov’t Ex. 221-E (transcript of the full recording of the main radio channel).

2. The Crash Site

The Court admitted into evidence body worn camera footage from several officers

that captured the scene in the immediate aftermath of the collision. Officer Tejera’s body worn

camera, for example, began recording audio seconds after the collision occurred. See Gov’t

Ex. 202 (Tejera body worn camera). As the officers – including Mr. Sutton and Mr. Zabavsky –

approached the crash site where Mr. Hylton-Brown and the moped were lying in the street, one

of the officers said, “Holy shit.” Officer Tejera approached Mr. Hylton-Brown and exclaimed,

“What the fuck, man?” Another officer asked Mr. Hylton-Brown, “Hey, are you good?” to

which Officer Tejera responded, “No, he’s bleeding heavy.” Additional officers arrived at the

scene and parked their vehicles up and down the street, activating the emergency lights and

53

preventing other traffic from coming through as they waited for an ambulance. See Gov’t

Ex. 202.

Body worn camera footage and testimony at trial indicated that Mr. Sutton and

Mr. Zabavsky were aware of the serious nature of Mr. Hylton-Brown’s condition. Officer

Novick and Officer Al-Shrawi, who had been seated in the backseat of the CST vehicle,

crouched near Mr. Hylton-Brown and tried to stop his bleeding. See Gov’t Ex. 201 (Novick

body worn camera); Gov’t Ex. 203 (Al-Shrawi body worn camera); Trial Tr. Nov. 14, 2022 p.m.

at 43:3-8 (Novick testimony). Officer Novick testified that at some point while he and Officer

Al-Shrawi rendered aid to Mr. Hylton-Brown, Mr. Sutton stood about a foot away. Trial Tr.

Nov. 14, 2022 p.m. at 45:10-25. Officer Novick also testified that Mr. Zabavsky was nearby Mr.

Hylton-Brown – standing only a foot away at times – as officers rendered aid. Id. at 47:1-20; id.

at 49:1 (Officer Novick testified that “Lieutenant Zabavsky kind of panned” across the scene

where Mr. Hylton-Brown was); Trial Tr. Nov. 10, 2022 p.m. at 96:16-98:8 (Officer Al-Shrawi

testified that while he and Officer Novick attempted to stop Mr. Hylton-Brown’s bleeding, Mr.

Zabavsky was present at the scene); see Gov’t Ex. 201 (Novick body worn camera) (depicting

Mr. Zabavsky standing between two and four feet away from Mr. Hylton-Brown’s body).

Mr. Sutton’s body worn camera shows that Mr. Sutton exited his vehicle and

called out, “Karon!” as he walked over to where Mr. Hylton-Brown lay in the street. See Gov’t

Ex. 200 (Sutton body worn camera). Mr. Zabavsky’s body worn camera depicts Officer Novick

and Officer Al-Shrawi providing first aid to Mr. Hylton-Brown, rolling him on his side and

applying pressure to his head wound in an attempt to stop the bleeding. Gov’t Ex. 204

(Zabavsky body worn camera). Mr. Zabavsky’s body worn camera also captured audio and

video of Mr. Hylton-Brown beginning to vomit. Id.

54

The government’s evidence demonstrated that multiple officers assumed that Mr.

Zabavsky would be in charge of managing the crash scene. Officer Tejera explained that Mr.

Zabavsky, a lieutenant, was the highest ranking official on the scene, and therefore Officer

Tejera assumed that Mr. Zabavsky was in charge of the scene. Trial Tr. Nov. 2, 2022 p.m.

at 71:17-24. Similarly, Officer Arnone believed that Mr. Zabavsky was the only senior MPD

official at the crash site, and accordingly, that he would be the person ultimately responsible for

managing the scene, ensuring the preservation of evidence, and notifying the Major Crash Unit

and the Internal Affairs Division. Trial Tr. Nov. 8, 2022 p.m. at 53:21-54:14. Captain Porter

explained that a superior officer on the scene of a collision such as this – where a person has

serious head injuries – would be expected to “call the watch commander and basically brief them

on what steps they have done so far and what information they are waiting on from the officer at

the hospital to decide if they are going to notify Major Crash.” Trial Tr. Nov. 17, 2022 a.m.

at 68:22-69:10. Captain Porter testified that he was “confident that a lieutenant would make that

notification” if a lieutenant were on the scene. Id. at 69:11-18; see id. at 44:17-20 (Captain

Porter testified that Mr. Zabavsky “knew general orders very well”).

Other witnesses testified, however, that while at the crash site, Mr. Zabavsky did

not notify senior MPD officials or the Major Crash Unit about the serious nature of Mr. Hylton-

Brown’s injuries. See Trial Tr. Nov. 14, 2022 p.m. at 63:12-14 (Officer Novick did not hear

anyone call the Major Crash Unit); Trial Tr. Oct. 28, 2022 p.m. at 7:2-15 (Special Agent Ricardi,

who reviewed radio runs during his investigation, believed that there was no notification to the

Major Crash Unit made by officers at the crash site).

Body worn camera footage shows that as Mr. Hylton-Brown was being lifted into

the ambulance, a small crowd of people began to congregate near the mouth of the alleyway.

55

See Gov’t Ex. 200 (Sutton body worn camera); Gov’t Ex. 204 (Zabavsky body worn camera).

Police remained on the scene, securing the crash site with police tape and trying to ensure that

the people who had arrived remained calm. Mr. Zabavsky and Mr. Sutton took photos of Mr.

Hylton-Brown’s moped, and Mr. Zabavsky spoke with Officer Arnone, ensuring that officers

had photos of the other vehicle involved in the collision – the Scion. See Gov’t Ex. 200 (Sutton

body worn camera); Gov’t Ex. 204 (Zabavsky body worn camera). Officer Arnone told Mr.

Zabavsky, “I’m assuming I’m the one who’s going to be doing the report,” to which Mr.

Zabavsky replied, “I think Sutton’s going to do it.” Gov’t Ex. 204 (Zabavsky body worn

camera); see Trial Tr. Nov. 8, 2022 p.m. at 54:15-22, 83:17-23 (Arnone testimony). Mr.

Zabavsky, while standing with Officer Arnone and Mr. Sutton, told Officer Arnone to stay at the

scene and wait for the tow truck while he and Mr. Sutton went back to the Fourth District police

station. Mr. Sutton and Mr. Zabavsky then walked away from the group of other officers

standing at the mouth of the alleyway and both turned off their body worn cameras. See Gov’t

Ex. 200 (Sutton body worn camera); Gov’t Ex. 204 (Zabavsky body worn camera); Trial Tr.

Nov. 8, 2022 p.m. at 98:15-16 (Officer Arnone testified: “I do remember seeing Lieutenant

Zabavsky and Officer Sutton talking”); Trial Tr. Nov. 2, 2022 p.m. at 99:8-13 (Officer Tejera

testified that he observed Officer Sutton and Lieutenant Zabavsky standing together at the

collision scene, though he never learned what transpired between them at that time).

Mr. Sutton, Mr. Zabavsky, and the other CST officers then left the scene to head

back to the Fourth District police station. Mr. Sutton got back behind the wheel of the CST

vehicle and drove away. Officer Arnone, who remained at the scene waiting for the tow truck,

testified that she heard “crunching” as Mr. Sutton left the scene because Mr. Sutton “ran over

some of the evidence” – a part of Mr. Hylton-Brown’s moped. Trial Tr. Nov. 8, 2022 p.m. at

56

99:11-16; see Trial Tr. Nov. 10, 2022 p.m. at 102:1-2 (Officer Al-Shrawi observed “the vehicle

running, going over the part [of] the scooter”). The government offered body worn camera

footage depicting Mr. Sutton driving the CST vehicle away from the collision site and capturing

the “crunching” noise that Officer Arnone testified about hearing. See Gov’t Ex. 202 (Officer

Tejera body worn camera footage and audio); Gov’t Ex. 201 (Officer Novick’s body worn

camera footage and audio).

3. The Fourth District Police Station

Much of the government’s case in chief focused on the events that occurred after

Mr. Sutton, Mr. Zabavsky, and the other CST officers arrived back at the Fourth District police

station following the collision. Once there, Mr. Sutton and Mr. Zabavsky spoke with Captain

Porter, their superior officer, who was on duty as watch commander that night. In addition, Mr.

Sutton drafted a “PD-10” traffic crash report, in which he described the events leading up to the

collision. See Gov’t Ex. 404-F (IAD’s preliminary investigation packet, which contained a copy

of Mr. Sutton’s draft traffic crash report). The government also introduced evidence that Mr.

Sutton was “pretty experienced” and knowledgeable about MPD protocols and procedures, see

Trial Tr. Nov. 10, 2022 p.m. at 31:19-24 (Al-Shrawi testimony), and that Mr. Zabavsky had “a

lot of knowledge when it comes to police work.” Trial Tr. Nov. 17, 2022 a.m. at 42:23-24

(Porter testimony).

a. Captain Porter

On October 23, 2020, Captain Franklin Porter was on duty as the watch

commander of the Fourth District. Trial Tr. Nov. 17, 2022 a.m. at 22:17-23 (Porter testimony).

In addition to a captain or lieutenant’s ordinary responsibilities, high ranking officers also rotate

57

through shifts as watch commander, during which they are responsible for supervising the entire

Fourth District – monitoring the district’s radio channel and responding to officers and citizens

who call in. Id. at 26:7-27:4. Captain Porter explained that the watch commander is responsible

for notifying higher-ups in MPD when certain circumstances arise – for instance, if there is a

shooting. Id. at 29:9-22. The watch commander is also expected to be “on top of just about

everything that goes on,” as everything that happens while officers are on patrol is expected to

“come through” to the watch commander on duty. Id. at 26:18-23; id. at 28:24-29:8 (“The watch

commander’s phone constantly rings.”); Id. at 43:4-14 (Captain Porter testified that, in his

experience working with Mr. Zabavsky, Mr. Zabavsky “would call the watch commander” “all

the time . . . [w]henever there’s issues that they are dealing with, he would definitely call the

watch commander for any advice or for just giving me information that I needed”). Captain

Porter explained how Mr. Zabavsky himself had served as a watch commander on multiple other

occasions. Id. at 43:15-44:3 (Captain Porter estimated that Mr. Zabavsky had served as the

watch commander “between fifty to a hundred times”). Captain Porter further explained that he

had a “personal and professional” relationship with Mr. Zabavsky, that he relied on Mr.

Zabavsky more than he relied on other lieutenants, and that the two men had worked their way

up the MPD chain of command together. Id. at 41:9-42:21. Between 10:00 p.m. and 12:00 a.m.

on the evening of the collision, neither Mr. Zabavsky nor Mr. Sutton called Captain Porter. Id.

at 51:5-12.

One of the watch commander’s responsibilities is monitoring MPD officers that

are engaged in vehicular pursuits. Trial Tr. Nov. 17, 2022 a.m. at 30:17-21 (Porter testimony).

When a vehicular pursuit occurs, a preliminary investigation must be conducted; MPD officials

respond to the scene, gather as much evidence about the pursuit as they can, and then forward

58

that information to the Internal Affairs Division (“IAD”) for review. Id. at 33:16-34:9. IAD

reviews the preliminary investigation and determines whether IAD will handle any subsequent

investigation into an officer’s violation of MPD policy, or whether supervisors in the district

where the chase occurred can handle any follow up investigation. Id. at 34:12-35:7. When MPD

officers are involved in “serious misconduct that result[s] in a death,” IAD may respond to a

scene right away to begin collecting information, rather than waiting to receive a preliminary

investigation from a district supervisor. Id. at 35:13-36:14.

Around 10:00 p.m. on October 23, 2020, Captain Porter heard over the Fourth

District’s main radio channel that “someone said we had a moped that just got struck on

Kennedy Street.” Trial Tr. Nov. 17, 2022 a.m. at 48:1-19 (Porter testimony). This notification

gave Captain Porter the impression that “it was just a regular accident with injuries,” like MPD

officers “hear almost every day.” Id. When a crash involves serious injuries, Captain Porter

would expect the supervisor on the scene – the sergeant, lieutenant, or highest-ranking officer

present – to notify the watch commander of those injuries. Id. at 49:20-50:8. Captain Porter

explained that, while working as watch commander, he would want to hear about instances of

serious bodily injury over the district’s main radio channel from the supervisor on the scene. If

someone’s injuries might result in death, Captain Porter testified, he would “have the supervisor

on the scene give [him] a call” to determine what next steps must be taken, including whether to

contact the Major Crash Unit and IAD. Id. at 39:11-40:22. Captain Porter also explained that he

would want to hear about a vehicular pursuit over the main radio channel. See id. at 66:11-18

(Captain Porter testified that, once he learned that there had been a pursuit of Mr. Hylton-Brown,

his “next question would have been why didn’t we come on the Fourth District radio zone to let

anyone know that we’re chasing someone?”).

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Captain Porter didn’t learn anything more about the events leading up to the

collision until later that evening, when Mr. Zabavsky and Mr. Sutton walked into his office

sometime between 11:00 p.m. and midnight. Trial Tr. Nov. 17, 2022 a.m. at 53:4-19. As

Captain Porter testified:

Zabavsky speaks first and he says, “Do you know that accident on

Kennedy Street with the moped?” I said, “Yeah, I heard of it. I

heard it.” He said, “Well, we might have been trying to stop

him. . . .” He said something about, “We want to figure out if this

is a chase or not.” And so I started talking to him and I said, “Well,

if you tried to stop him and he takes off and goes and [gets] hit, that’s

not a chase. That’s not your fault.” And then I think Sutton might

have picked the conversation up I believe, and he says, “Well, we

were following him for a little bit.” And I look at Sutton. I said,

“Well, how long is a little bit?” He said, “Two minutes.” And I

said, “Well, that’s a long time.” So, then I looked back at Zabavsky

and I said, “Well, have you looked at his body worn camera to see

if it was a chase?” And Lieutenant Zabavsky said, “Not yet.” And

I said, “Well, go back and look at his body worn camera and then let

me know if it’s a chase or not.”

Trial Tr. Nov. 17, 2022 a.m. at 54:1-19.

During this initial encounter, Mr. Zabavsky told Captain Porter that “the person

that was hit was intoxicated,” and that Mr. Hylton-Brown “slurred his words or something.” Id.

at 55:16-56:1. Mr. Zabavsky also told Captain Porter that an officer had accompanied Mr.

Hylton-Brown to the hospital. Id. at 57:1-17. Captain Porter explained that his initial

conversation with Mr. Sutton and Mr. Zabavsky gave him the impression that the CST officers

were trying to effectuate a traffic stop on Mr. Hylton-Brown for driving his moped on the

sidewalk. Id. at 58:3-11 (“[Officer Sutton] was trying to stop [Mr. Hylton-Brown] . . . because

he was stopping and going on the sidewalk. That was my understanding.”). During that initial

conversation, neither Mr. Sutton nor Mr. Zabavsky mentioned anything about Mr. Hylton-

Brown’s injuries – all they said was that another officer was at the hospital with Mr. Hylton-

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Brown, without further explanation. Id. at 57:1-13. See id. at 64:11-25, 65:9-21 (Captain Porter

testified: “I took that statement, that he was intoxicated, [to mean] that they must have found

that out . . . after the accident when they went up to him and [were] speaking with him, he was

slurring his words.”). Captain Porter also came away from this conversation with Mr. Sutton and

Mr. Zabavsky thinking that an officer was “standing by” with Mr. Hylton-Brown at the hospital

in case Mr. Hylton-Brown would be arrested for driving under the influence. See id.

at 55:11-57:13.

During this initial conversation, neither Mr. Sutton nor Mr. Zabavsky mentioned

to Captain Porter that Mr. Zabavsky was involved in the chase, leaving Captain Porter with the

impression that “Sutton went to his manager [Lieutenant Zabavsky] to explain the situation,”

rather than both men having been involved from the start. Trial Tr. Nov. 17, 2022 a.m. at 55:7-9.

Captain Porter testified that he “definitely” would have wanted to know whether Mr. Zabavsky

was involved in the chase before deciding how to proceed with investigating potential

misconduct. Id. at 59:3-60:6. And Captain Porter “would not have [asked Mr. Zabavsky to] help

. . . with the investigation” if Mr. Zabavsky was “part of the misconduct.” Id. at 59:23-60:5.

Furthermore, neither Mr. Sutton nor Mr. Zabavsky told Captain Porter that Mr. Hylton-Brown’s

injuries were serious during their initial conversation. Captain Porter testified that “the only time

[Mr. Zabavsky] brought up injuries was because of the intoxication.” Id. at 57:3-9. Captain

Porter explained that if he had learned right away that this was a pursuit resulting in a serious

injury, he “would have had to make a lot of notifications” to the Major Crash Unit, to IAD, and

to his superiors. Id. at 60:24-61:23.

About fifteen minutes after the initial conversation between Mr. Zabavsky, Mr.

Sutton, and Captain Porter, Mr. Zabavsky re-entered Captain Porter’s office and told him, “We

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have a problem.” Trial Tr. Nov. 17, 2022 a.m. at 70:3-10 (Porter testimony). The officer who

was at the hospital with Mr. Hylton-Brown, Officer Ernie Davis, reported that Mr. Hylton-

Brown had a brain injury and might not make it. Id. Captain Porter “was very surprised” and

told Mr. Zabavsky, “we need to notify Major Crash.” Id. at 70:11-12. Captain Porter also asked

Mr. Zabavsky why Major Crash was not called to the scene immediately, and Mr. Zabavsky

replied that he thought Mr. Hylton-Brown’s condition was not that critical. Id. at 102:3-5.

Captain Porter explained that, upon hearing about Mr. Hylton-Brown’s serious condition:

I said, what, we need to notify Major Crash. And [Mr. Zabavsky]

said “I’m on the phone with [them].” And then I said, “Did you look

at the body worn camera, it is a chase?” And he said he wasn’t sure,

but it’s up on his computer if I want[ed] to come and look at it. At

that point I said no, I’ll log in and look at it myself. So I started

logging in.

Trial Tr. Nov. 17, 2022 a.m. at 70:11-17 (Porter testimony); see id. at 71:7-14.

Captain Porter began watching the body worn camera footage “less than a

minute” after Mr. Zabavsky told him about Mr. Hylton-Brown’s condition. Id. at 71:15-17.

Captain Porter reviewed Mr. Sutton’s body worn camera footage as well as Officer Tejera’s. Id.

at 75:2-20. While reviewing Officer Tejera’s body worn camera footage “from the time it started

all the way to the crash,” Captain Porter determined that Mr. Sutton had engaged in a pursuit. Id.

at 78:13-16. He turned to Mr. Zabavsky, who had come into Captain Porter’s office to watch the

footage, and said: “This is a chase.” Id. at 78:5-8. At that point, Captain Porter immediately

began the process for notifying IAD. Id. at 80:1-81:6.

Captain Porter then rushed to the scene of the collision himself, notifying his

superior officer, Commander Brian Bray, on the way. Trial Tr. Nov. 17, 2022 a.m. at 81:8-24.

Once at the scene, Captain Porter worked with an officer from the Major Crash Unit to

investigate. Id. at 82:11-19. Captain Porter testified: “I needed more information because

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people were asking me for information, the investigators, the IAD investigator, the Major Crash

investigator was asking me for information I did not have. So I was relying on Lieutenant

Zabavsky for that information.” Id. at 85:24-86:3. Repeatedly, as Captain Porter assisted with

the investigation at the scene, he called Mr. Zabavsky to ask clarifying questions and get more

information about what had happened before the collision. Id. at 82:11-84:7. Mr. Zabavsky

never volunteered that he was involved in the pursuit – even after Captain Porter asked him if he

was. Id.

b. Mr. Sutton’s Draft Report

Officer Al-Shrawi explained that, once back at the Fourth District, Mr. Zabavsky

and Mr. Sutton spoke with Captain Porter, who told them to review the CST officers’ body worn

camera from that evening. Trial Tr. Nov. 10, 2022 p.m. at 129:4-130:25. As Mr. Zabavsky and

Officers Novick, Tejera, and Al-Shrawi began watching body worn camera footage, Officer

Sutton sat outside, within earshot of Mr. Zabavsky’s office, writing the traffic crash report. Id.

at 130:20-131:4. Mr. Sutton’s traffic report contained a narrative, which read as follows:

On the listed date and time officers attempted a traffic stop on

Vehicle #2 [Mr. Hylton-Brown] at 5th St NW and Kennedy St NW

after observing the listed driver of Vehicle #2 riding on the sidewalk

in the 500 block of Kennedy St NW without a helmet. Vehicle #2

is a Revel electric scooter. The driver of Vehicle #2 continued to

drive at a slow speed while braking and coming to random stops, as

if he was going to bail off the listed vehicle. Officers deactivated

their emergency lights and followed Vehicle #2 at a slow speed with

distance in between their vehicle and Vehicle #2 into the 700 block

of Ingraham St NW. At the time, there was little to no vehicular or

pedestrian traffic. Officers observed Vehicle #2 enter an alley in the

700 block of Ingraham St NW and lost sight of Vehicle #2 and began

to canvas the area, in the event that the driver of Vehicle #2 had

bailed out on foot. A short time later, Officers turned into the 5400

block of 8th St NW and observed Vehicle #2 at the intersection of

8th St NW and Kennedy St NW. Officers attempted a traffic stop

again at 8th St NW and Kennedy St NW when the driver of Vehicle

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#2 disregarded again and continued southbound at a slow speed in

the 5400 block of 8th St NW. Vehicle #2 made a left turn into the

700 block of Jefferson St NW and immediately into the alley.

Officers deactivated their emergency lights again when entering the

alley. Vehicle #2 was observed traveling northbound through the

alley and failed to come to a stop or even attempt to slow as it exited

the mouth of the alley into oncoming traffic in the 700 block of

Kennedy St NW at which point Vehicle #1 [the Scion] which was

traveling eastbound on Kennedy St NW struck Vehicle #2.

As officers pulled up to the accident, they immediately checked on

the welfare of the driver of Vehicle #2. The officers immediately

observed the driver of Vehicle #2 was lying on the ground

unresponsive, and began to administer first aid. Officer Novick

deployed his TECC Kit and gauze was applied to the head of the

driver of vehicle #2 to stop bleeding. Officers remained on scene

awaiting arrival of DCFEMS (Medic #14) who assumed care of the

driver of Vehicle #2. Officers were only able to observe superficial

abrasions on left eyebrow line to the driver of Vehicle #2’s head.

The driver of Vehicle #2 was transported to WHC via Medic #14

from the scene. Vehicle #2 appeared to sustain disabling damage

from the collision.

Officers then checked on the welfare of the driver of Vehicle #1.

The driver of Vehicle #1 appeared to be normal. The driver stated

that he was “just traveling and he popped out of the alley” in

reference to the driver of Vehicle #2. The driver of Vehicle #1 did

not have any visible injuries and did not complain of any pain.

Vehicle #1 had minor damage to the front bumper and a crack to the

top passenger side of the windshield. Vehicle #1 was driven away

from the scene by the listed owner.

Gov’t Ex. 404-F.

Joseph Della Camera, an agent with the MPD Internal Affairs Division, testified

that, during the course of his investigation, he determined that the information contained in

Officer Sutton’s draft traffic crash report was not “accurate or factual.” Trial Tr. Nov. 7, 2022

p.m. at 73:1-15. He also testified that “[i]t’s very well known” that “[p]olice reports are

supposed to contain factual and truthful information.” Id. at 74:7-18; see id. (Agent Della

Camera explained that it would violate MPD policy to write false or misleading reports).

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4. Major Crash Unit Investigation

Officer Jeffrey Folts testified that on the night of the collision, he was working as

a senior police officer in MPD’s Major Crash Unit. Trial Tr. Nov. 9, 2022 a.m. at 11:19-12:3.

Officer Folts told the jury that while he was working the midnight shift on October 23, 2020, he

received notification about the collision involving Mr. Hylton-Brown about an hour and a half

after the collision occurred. Id. at 26:4-27:20. He explained that, in general, a “delay in

notification” can affect a Major Crash Unit investigation by potentially making it harder to

collect evidence and identify witnesses. Id. at 28:22-29:3.

Officer Al-Shrawi explained what was happening at the Fourth District police

station prior to Officer Folts getting that call. He testified that, between returning to the Fourth

District and notifying the Major Crash Unit about the incident, the CST officers received three

calls from Officer Ernie Davis, who was at the hospital with Mr. Hylton-Brown. Trial testimony

is ambiguous about what was conveyed during the first call, but during the second call, Officer

Davis said Mr. Hylton Brown was in “critical condition,” and during the third call, Officer Davis

said Mr. Hylton Brown was “on a breathing tube and he had a skull fracture.” Trial Tr. Nov. 10,

2022 p.m. at 134:1-135:24 (Al-Shrawi testimony). After the third call, Mr. Zabavsky stood up

and told the CST officers – for the first time that night – that “they had to notify Major Crash.”

Id. at 138:15-22. Officer Folts spoke with Mr. Zabavsky for the first time at 12:20 a.m. the

morning of October 24, 2020, and a second time around 2:00 or 3:00 a.m. that same morning.

Trial Tr. Nov. 9, 2022 a.m. at 34:20-35:4. At no point during these conversations did Mr.

Zabavsky disclose to Officer Folts his own involvement in the pursuit. Id. at 46:8-47:15.

While MPD police officers are permitted to handle ordinary traffic collisions, the

Major Crash Unit usually gets involved whenever a collision results in the “possibility of death,”

65

including where injured parties experience “labored breathing, a large amount of blood,” “losing

consciousness,” or “head injur[ies].” Trial Tr. Nov. 9, 2022 a.m. at 19:16-25, 20:13-21:2 (Folts

testimony); id. at 86:19-87:3; see Trial Tr. Nov. 10, 2022 a.m. at 53:23-54:9 (Officer Folts

testified that Major Crash should be notified when someone injured in a crash is taken to the

hospital); Trial Tr. Nov. 14, 2022 p.m. at 62:7-22 (Officer Novick explained that Major Crash

should be called “in the event of a crash that results in a fatality or a very serious injury”).

Officers should notify the Major Crash Unit “as soon as possible” after a serious collision, and

Officer Folts said he would expect the “most senior official on the scene” to make that

notification. Trial Tr. Nov. 9, 2022 a.m. at 23:15-24:1.

Although the Major Crash investigation was eventually completed by a different

officer – Detective Victor DePeralta – Officer Folts responded to the crash site that evening and

testified about various ways that the crash site was not properly preserved to facilitate a Major

Crash Unit investigation. He explained that the driver of the Scion, the striking vehicle, “should

have remained on the scene so he could be interviewed by someone from Major Crash” and so

investigators could have observed and photographed “the condition of the vehicle, to see how

much damage has been done, [and] the final resting position of the vehicle.” Trial Tr. Nov. 9,

2022 a.m. at 53:4-8, 54:6-13; see id. at 72:2-5 (Officer Folts testified that he thought the collision

scene was “preserved very poorly”). Officer Folts also told the jury that it is MPD policy to have

officers “attempt to preserve or freeze” the crash scene in its original condition. Trial Tr. Nov.

10, 2022 a.m. at 72:7-11.

The government also introduced an email from Mr. Zabavsky to Officer Folts and

other officers in the Major Crash Unit. Trial Tr. Nov. 9, 2022 a.m. at 82:1-83:23; Gov’t Ex. 223.

Mr. Zabavsky’s email contained, as an attachment, Mr. Sutton’s draft traffic crash report. See

66

Gov’t Ex. 223. Officer Folts explained that he forwarded this information, including the draft

report, to the Internal Affairs Division investigators responsible for investigating the pursuit.

Trial Tr. Nov. 9, 2022 a.m. at 82:1-83:23.

5. Internal Affairs Division Investigation

Internal Affairs Division (“IAD”) Agent Joseph Della Camera explained that he

was the on-call IAD agent on October 23, 2020, when he received a notification about the

incident involving Mr. Hylton-Brown. Trial Tr. Nov. 7, 2022 p.m. at 29:21-30:10. IAD

“investigates serious misconduct” and the use of force by MPD officers. Id. at 15:18-21. IAD

agents, like Agent Della Camera, are responsible for “gather[ing] all the facts and

circumstances” surrounding an incident they are charged with investigating. Id. at 16:6-10; see

id. at 20:1-21:10 (Agent Della Camera testified that when IAD is called to initiate an

investigation, the on-call agent will begin collecting “as much information as possible . . . to find

out the circumstances and to preserve evidence”). Although IAD agents generally investigate

“administrative” violations where MPD staff members are suspected of violating MPD policies

and procedures, IAD investigations may also concern “potential criminal violations.” Id. at

16:14-19; see id. at 16:3-25 (Agent Della Camera testified that IAD investigates potential

criminal offenses when “officer involved shooting[s], significant injuries to an individual,” and

“other types of misconduct” occur); Trial Tr. Nov. 8, 2022 p.m. at 30:3-31:1 (Officer Arnone

testified that she learned during training that failure to adhere to MPD general orders could result

in administrative as well as criminal consequences); Trial Tr. Nov. 15, 2022 p.m. at 9:12-10:16

(Officer Totaro explained that MPD officers learn about the “legal consequences for on-the-job

driving incidents,” including civil and criminal liability if the officer’s conduct violates the law).

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Agent Della Camera explained that any time an MPD officer engages in a chase

and that chase involves a fatality, that conduct is “automatically subject to” a “start to finish”

investigation by IAD. Trial Tr. Nov. 7, 2022 p.m. at 17:11-15, 18:5-9; see id. at 80:8-12 (Agent

Della Camera explained that IAD would not have investigated Mr. Hylton-Brown’s death if “no

one had mentioned there had been a vehicular pursuit prior to the crash”); Trial Tr. Nov. 17,

2022 a.m. at 88:17-18 (Captain Porter thought that “because of the chase, IAD would probably

. . . take the case”). When a vehicular pursuit by a MPD officer results in serious injury or death,

IAD and the Major Crash Unit assist one another in conducting their investigations. Trial Tr.

Nov. 7, 2022 p.m. at 21:11-23.

Agent Della Camera testified that he was notified about this incident “sometime

after midnight” on October 24, 2020. Trial Tr. Nov. 7, 2022 p.m. at 30:4-10. After receiving the

notification, Agent Della Camera called Captain Porter, who provided an overview of what had

occurred with the CST vehicle that evening. Id. at 30:11-31:19. At about 12:40 a.m. –

approximately two and a half hours after the collision – Agent Della Camera began reviewing

Mr. Sutton’s and Officer Tejera’s body worn camera footage. Id. at 40:7-43:24; see Gov’t Exs.

219-C, 219-D (body worn camera audit logs indicating that Agent Della Camera accessed Mr.

Sutton and Officer Tejera’s body worn camera footage on October 24, 2020 at 12:41 a.m. and

12:47 a.m., respectively). Once he finished reviewing the footage, shortly after 1:00 a.m., Agent

Della Camera responded to the scene of the collision to investigate the circumstances

surrounding the collision. Trial Tr. Nov. 7, 2022 p.m. at 44:2-45:8. Agent Della Camera was

concerned that the crash scene “wasn’t properly preserved” – the striking vehicle was gone, Mr.

Sutton’s vehicle was gone, and there were no witnesses on the scene to be interviewed. Id.

at 48:12-49:25; see Trial Tr. Nov. 9, 2022 a.m. at 72:2-5 (Folts testimony).

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As part of his IAD investigation, Agent Della Camera reviewed Mr. Sutton’s draft

traffic crash report describing the incident and relied on Mr. Sutton’s draft report when writing

his own preliminary IAD report. Trial Tr. Nov. 7, 2022 p.m. at 63:1-19, 66:20-23. After

completing his preliminary report, Agent Della Camera conducted additional investigation,

which included reviewing body worn camera footage and surveillance footage from the area

where the chase occurred. Id. at 67:11-22. After reviewing this footage, Agent Della Camera

concluded that the “information [he] had put into [his preliminary] report based on [Officer

Sutton’s] traffic crash report was not factual.” Id. at 67:24-68:1.

Agent Della Camera explained that Mr. Sutton’s draft report stated that officers

were “canvassing” the area for Mr. Hylton-Brown – but multiple surveillance videos did not

show the CST vehicle canvassing the area. Trial Tr. Nov. 7, 2022 p.m. at 71:2-15. Rather,

Agent Della Camera described what he saw on surveillance video as Mr. Hylton-Brown’s “direct

flight from the unmarked vehicle” driven by Mr. Sutton. Id. Agent Della Camera similarly

concluded that Officer Tejera’s body worn camera footage contradicted the information

contained in Mr. Sutton’s draft report: that the CST officers “lost sight” of Mr. Hylton-Brown in

an alleyway. See Gov’t Ex. 404-F. A second look at Officer Tejera’s body worn camera led

Agent Della Camera to determine that “it doesn’t appear that they [the CST officers] lost sight of

Mr. Hylton at all” during the pursuit. Trial Tr. Nov. 7, 2022 p.m. at 69:2-70:10.

Ultimately, Agent Della Camera concluded that “the information in the traffic

crash report was not accurate or factual. . . . They [the CST officers] weren’t canvassing for him.

They were actually pursuing him.” Id. at 73:1-15. See Trial Tr. Nov. 8, 2022 a.m. at 40:7-11

(Agent Della Camera testified that the CST vehicle was not “canvassing” for Mr. Hylton-Brown,

and the officers were “right behind him”); Trial Tr. Nov. 7, 2022 a.m. 67:2-68:6 (Officer Tejera

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testified that during the pursuit, the CST vehicle “always” managed to stay behind Mr. Hylton-

Brown, that the officers only lost sight of Mr. Hylton-Brown for “short periods” of time, and that

the officers never “lo[st] him for so long [that they] had to canvass the area”).

6. Evidence Relating to a Federal Nexus

In addition to explaining his own investigation into the chase that resulted in Mr.

Hylton-Brown’s death, Agent Della Camera also described general MPD and IAD policies when

MPD officers are suspected of misconduct or potential criminal violations. Agent Della Camera

specified that when MPD officers are involved in serious misconduct, serious uses of force, and

certain types of vehicular pursuits, IAD investigates those incidents both for potential

administrative violations as well as possible criminal offenses, depending on the circumstances.

Trial Tr. Nov. 7, 2022 p.m. at 16:14-17:3. For vehicular pursuits specifically, Agent Della

Camera explained that IAD automatically investigates pursuits resulting in fatalities, serious or

life-threatening injuries, and serious officer misconduct. Id. at 18:8-19:16.

Whenever a vehicular pursuit occurs, an MPD official is supposed to collect

information related to the pursuit and send that information to the watch commander, who

generates a report. Trial Tr. Nov. 7, 2022 p.m. at 25:18-27:19 (Della Camera testimony). The

initial, district-generated report – the “pursuit package” – ultimately gets submitted to IAD, and

IAD may investigate further based on the nature of the officer’s conduct and any fatalities or

serious injuries that occurred. Id. at 26:2-29:20; see Trial Tr. Nov. 15, 2022 a.m.

at 103:13-104:22, 106:17-107:9 (Officer Totaro explained that MPD officers learn about post-

pursuit investigations during their training, including that IAD and the Major Crash Unit will

investigate all pursuits involving fatalities or serious bodily injury).

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Agent Della Camera also explained IAD’s process for referring matters involving

MPD officers to the U.S. Attorney’s Office. When an IAD investigation involves potential

criminal violations, IAD agents “make notification to the United States Attorney’s Office” and

“let them know [IAD] ha[s] a criminal referral.” Trial Tr. Nov. 7, 2022 p.m. at 17:4-10. Agent

Della Camera explained that IAD always refers cases involving death or serious injuries to the

U.S. Attorney’s Office. Id. at 75:18-76:21. After receiving an IAD referral, the U.S. Attorney’s

Office conducts a “prosecutorial review of the circumstances of MPD involvement and what led

up to the individual’s injuries or death” to determine if there was “criminal wrongdoing on the

officer’s part.” Id. at 77:24-78:8.

Agent Della Camera testified that he referred this case to the U.S. Attorney’s

Office within eight hours of the collision, at approximately 6:00 a.m. on October 24, 2020. See

Trial Tr. Nov. 7, 2022 p.m. at 98:2-6; Trial Tr. Nov. 8, 2022 a.m. at 55:2-4. He explained:

Prosecutor: In your time at Internal Affairs, have you referred some

of your matters under investigation to the U.S. Attorney's

Office?

Agent Della Camera: Yes.

Prosecutor: Is that part of your job at Internal Affairs?

Agent Della Camera: Yes.

Prosecutor: And

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