UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

___________________________________ ) UNITED STATES OF AMERICA ) ) v. ) ) Criminal No. 21-0598 (PLF) TERENCE SUTTON ) and ) ANDREW ZABAVSKY, ) ) Defendant s. ) ___________________________________ )

OPINION AND ORDER
A fter a nine

- week trial, a jury convicted d efendant 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 Mo t.”) [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 S utton’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] ; a nd 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 consid eration of the pending motions: United States v. Sutton , 636 F. Supp. 3d2 occurred , Mr. Sutton and Mr. Zabavsk y were employees of the Metropolitan Police Department

. On October 23, 2020, while operating an unmarked police vehicle, Mr. Sutton encou ntered a young man named Kar on 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 o f Mr. Hylton- Br own. When Mr. HyltonBro wn 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 exit ed 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 notificatio n 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. Su tton , 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.”); Unite d 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 trans cripts are cited as : Trial Tr. [Date] [Time ] at [Page:Line].3 adequate steps were taken to preserve the crash scene for subsequent investigation

. And t hey failed to provide a f ul l , truthful, and unambiguous account of the pursuit and collision to their superior officer, the w atch c ommander who was on duty that night

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

mo ved for judgment of acquitt al. 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
h eard oral argument on the motions for judgment of acquittal on June 5, 2023. The Court ha s 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 acquitt al 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 Su bjective 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 JUSTIC E AND CONSPIRACY TO OBSTRUCT JUSTICE

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

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

................................ ................................ ................................ ..... 444 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 Gover nment 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

................................ ................................ ................................ ....................... 985 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 wr itten and oral rulings on the legal and ev identiary issues presented. The post- trial motions implicate many of the Court’s previous evidentiary and legal rulings. Specifically, the Court determine d 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 in6 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, a n emergency room doctor who works at the MedStar Washington Hospital Center; MPD Captain Fran klin Porter , who was on duty as the Fourth District’s w atch commander the night of the collision; and Justin White, who works at a software company that provides r ecords 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 off icers and in the MPD pursuit policies as those policies are taught to officers. Throughout its case in chief, the govern ment in troduced a great deal of body worn camera footage into evidence. As multiple witne sses 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. Whe n 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 t heir body worn cameras at the beginning of any “contacts” with civilians, including “stops” an d “frisks.” See Gov’t Ex. 401- G (MPD Genera l Order on7 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, a nd bicycle) and frisks,” and “[a]ll traffic crash scenes”). See also Trial
Tr. Nov. 2, 2022 p.m. at 59:1

- 60:6 (Office r Tej era testimony regarding what his body worn camera captured the night of the collision ); Trial Tr. Nov. 2, 2022 a.m. at 32:1- 13 (Offic er 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).
T he government rested its case in chie f 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 a ll the evidence

. See F ED

. R. C RIM

. 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, w ho Mr. Sutton and Mr. Zabavsky spoke with earlier in the day on October 23, 2020; Jonathan Ur rutia -Chavez, the driver of the Scion that struck Mr. HyltonBrown; 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 testifie d about Mr. Sutton’s commendation awards from MPD ; MP D Senior Sergeant Brian Bray, who is assigned to the Internal Affairs Division ; MPD Lieutenant Raul Figueras, who is assig ned to the bureau that oversees the Internal Affairs Division ; MPD Detective Alfo nso Matos and MPD Officer John Paul Gautreaux, who worked extensively with
Mr. Sutton ; MPD Assistant Chief Wilfredo Manlapaz, who testified about Mr. Sutton’s8 perf ormance on M PD’s Crime Suppression Team ; and retired MPD Lieutenant Derek Gray, who worked cl osely with Mr. Zabavsky . The defense re

- called several government witnesses, including Officer Tyler Toth, Officer Cory Novick, EMT Gonthel Tolliver, and Special Agent
Sean R icardi

. The defense also presented expert testimony from : Thomas Langley, wh o 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 qua lified 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 procedure s and MPD pol icies; 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 c ounsel for Mr. Sutton and Mr. Zabavsky r enewed 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 2 1 , 2022, finding Mr. Sutton g uilty 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 submis sions in support of their motions for judgment of acquittal

. The government opposed, and Mr. Sutton and Mr. Zabavsky submitted replies. The Court heard oral a rgument on the motions for j udgment of acquittal on June 5, 2023. The Court also heard argument on May 17, 2023 on the defendants’ motions under9 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 Rul e 34 motions relate to is sues 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.” F ED

. R. C RIM

. 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 clea r a ‘very high’ hurdle. ” Un ited 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 concl ude 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
acqu ittal 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. Safavia n, 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 th e evidence most favorably to the g overnment and according the government the10 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 motio n 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. Camp bell , 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 D istrict of Columbia code, which provides: “Whoeve r 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 , meani ng 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 D istrict 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 perso n “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. to11 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:
“M a lice aforethought” can be satisfied in one of four ways. See Jennings v. United States, 993 A.2d 1077, 1080 (D.C. 2010). As relevant h ere, 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 n onetheless.” 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 reason able 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. Unit ed 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 engage d 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 act s 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 dete rmine that the ‘defendant was aware of a serious risk of d eath or serious bodily har m.’” 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 standard12 of care” – a po tential predicate of that subjective inquiry – is necessarily objective: What is t he 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 w ith District of Columbia l aw, 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. HyltonBrown sustained injuries and died. Jury Instructions at 27. 2 After t he 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. Su tton 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 a cted 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. S utton 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.13 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 stat ute, “‘ a defendant general ly 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)). A ctual 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 wh ere 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 Appea ls 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 Mo t. in Limine Op

. at *5 ; see Mot. to Dismiss O ral 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 that14 Mr. Sutton was both the but- fo r cause of Mr. Hylton

- Brown’s death as well as the proxi mate 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 reiterate d the principle that a per son 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 t he 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 “rea sonably 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
D istrict of Columbia law on causation for seco nd- 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 B ecause 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 Bla ckburne-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 majo rity opinion. See Fleming v. United States , 224 A.3d at 217.15 The first concurrence , aut hored 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 homicid e statutes – means “t o 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 fores eeable.” 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., concur ring ) (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 prin ciples on whi ch 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 wi th lethal results. Fleming v. United States , 224 A.3d at 231 ( Fisher & Thompson, JJ., concur ring ). If Judge Fisher and Judge Thompson had wanted to narrow the scope of their agreement with Judge McLeese’s majority opinion, the con curr ing 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 t he16 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 foresee ability.” Id

. at 23 3 (quoting Paroline v. United States, 572 U.S. at 444). Judge Easterly and Judge Be ckwi th, however, would not allow second degree murder to reach circumstances where “a defendant has taken an earlier action in the causal chain of a dea th, 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 mur der 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 instr ucti on to other sets o f facts, such as the facts at issue in this case.17 “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

. Thu s , 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. Hylto n- Brown’s death occurred as a result of an action by d efendant Sutton. In other words, the government must prove that in the absence of an action by d efendant Sutton, Mr. Hylton-Brown’s death would not have occurred. . . . [P]roximate causation – th at th ere 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 mig ht re sult 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, abnorm al, o r extraordinary. Jury Instructions at 29. The Court further instructed the jury tha t: 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 t here is a close connection between the defendant’s action and Mr. Hylton-Brown’s death.18 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 act ions 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 ac tions.” (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 Crim e Suppression Team (“CST”). When members of the CST are on patrol, th ey 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 No vick and Ah med 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 t rial tha t 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 de ath of Mr. Hylton- Brow n; 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 manslaug hter only required that “he should have been aware” of the risk of death or serious bodily injury. Id

. at 28.19 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 Officer s 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 spok e 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 (A l- Sh rawi 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 describ ed the conversation with Officer Pitt and explained that he learned no information about whether Mr. Hylton-Brown had co mmitted a crime d urin g 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.
A fter 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 . T he CST vehicle , driven by Mr. Sutton,20 then encountered Mr. Hylton-Brown. Id

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

on a Revel m oped 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 dr ove past Mr. Hylton- Brown , but then did a Uturn and reapproach ed him. Id . at 57:14-58:15; Trial Tr. Nov. 2, 2022 p.m. at 49:1- 50:6 (Tejera testimony)

. A t 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 5 5:15-18 (Tejera testimony). Both Officer Tejera and Officer Al

- Shrawi testified that , at the moment Mr. Sutton began following Mr. Hylton- Brow n, 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, 202221 p.m. at 64:22-65:3 (Al-S hrawi testimony) ; Trial Tr. Nov. 2, 2022 p.m. at 54:20- 55:3 (Tejera testimony) . According to Officer Al- Sh rawi, 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 -Shra wi ex plained 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 .” T rial 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 5 6:4-2 5 (Tejera testimony) ; Trial Tr. Nov. 14, 2022 p.m. at 25:8- 16 (Officer Al

- Shrawi testified that no one mentioned seeing Mr. Hylt on- 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 explainedthat Mr. HyltonBrown’s body language did not suggest he was concealing a weapon). When it beca me 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. Zaba vsky followed Mr. HyltonBrown 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 radio22 recordings were admitted: a recording of the “main” radio channel, which every officer in the
Four th District ha d 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).
S eated in the front passenge r se at, Officer Tejera was able to observe Mr. Hylton

Brown riding on the moped while the MPD vehicle s 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. Of ficer 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 accelerate d. The red and blue lights from t he CST vehicle refl ected on the vehicle ’s front windshield, disappearing and reappearing when Mr. Sutton turn ed 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 Ken nedy 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 -poin t tu rn 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 continu ed following Mr. Hylton-Brown down Eighth Street tow ard Jefferson Street, Northwest). Seconds after the CST vehicle turned around, Officer Tejera lifted his arm and point ed , and as the CST vehicle dr ove23 forward, Mr. Hylton- Brown came back into view. Mr. Sutton took a left turn, followin g Mr. Hylton-Brown onto Jefferson Street, and quickly thereafter made another left turn, following Mr. Hylton-Brown down a narrow alley way. A few seconds after making the left turn into the alley , Mr. Sutton turned off the CST vehicle’s emergency lights. S ee Gov’t Ex. 202 (Tejer a body worn

camera ); Gov’t Ex. 111-C (map of Kennedy Street, Northwest neighborhood).
T he 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 camer a screenshot s). From his seat behind the wheel, Mr. Sutton’s camera captured the C ST 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 camer a screenshot) . The footage also shows t hat in the moments before the collision, Mr. Sutton accelerated down the alleyway behind Mr. HyltonBrown, reaching a maximum speed of twenty

- six mile s-p er -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 testifie d 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.
V ideo from Officer Tejera’s body worn camera also depict s the CST vehicle accelerating down the alleyway. See Gov’t Ex. 202 (Tejera body worn came ra ). Officer Tejera’s body worn camera captured Mr. Hylton-Brown riding the moped as he approached the end of the alleyway, which open ed up onto the 700 block of Kennedy Street. The brake lights on24 his moped glow ed red as he reached the end of the alley wa y, but the light disappeared as he exited the alleyway and began veering left onto Kennedy Street. A s 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 flash ed red as he continued making his left turn . The oncoming car ma de 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
l ights flash ed on. Mr. Hylton-Brown is no longer visible on screen. The CST vehicle comes to a stop at the end of the alleyway. Visible o n the far-right side of the screen, further east on Kennedy Street, a different police car – operated by Officer Tyle r Toth – turn ed on its emergency lights. Officer Tejera exited the vehicle and activated his body worn camera , which began recording audio. He and three other officers approach ed Kennedy Street, where the moped was lying in the road. About s ix feet to t he 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 came ra ) ; Trial Tr. Nov. 14, 2022 p.m. at 43:3-4, 50:1-15 (Novick testimony).
T he 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 “pret ty serious” injuries); Trial T r. 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); T rial Tr. Nov. 8, 2022 p.m. at 56:20-57:23 (Officer Arnone testified that she o bserved Mr. Hylton-Brown “bleeding from his head” and that his condition “appeared to worsen” as officers waited for the ambulance) ; Trial Tr. Nov. 10,25 2022 p.m. at 85:9- 24 (Offi cer Al -Shrawi believed Mr. Hylton- Brown’s injuries were “life

threatening”). Gonthel Tolliver, a paramedic at the D istrict of Columbia Fire Department, testified that she arrived at the scene of the collision, and afterquickly assessing Mr. HyltonBrown’s condition, she immediately put him in the ambulance to take him to the traum a 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 Hospit al 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 C enter 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. Str eet testified to the skull fractures that were present wh en Mr. Hylton-Brown arrived at the hospital, and he explained that by 5:00 a.m. on October 24, 2020, hospital staff had d etermined 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) ; s ee Trial
Tr. Nov. 9, 2022 a.m. at 68:16-20 (Officer Folts explained that he learned from Dr. Street thatMr. Hylton-Brown was going to die). According to testimony and medical records, Mr. HyltonBrown died at t he 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 Ex s. 407-B, 407- C ( District of Columbia Office of the Chief Medical Examiner records)

.26 3. Mr. Sutton’s Subjective Awareness of the Extreme Risk of Death or Serious Harm The government introduced evidence that Mr. Sutto n 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, indica te 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). H e 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 depa rtment, and the pursuit is in close proximity to schools and hospitals and other locations with high pedes trian 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 st andard 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
Or der 301.03.27 a. MPD Training and Testimony of O fficer Carolyn Totaro Officer Totaro works as an instru ctor 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 Tota ro testified as an expert witness on the driving training required for MPD officers, as well as the MPD policy on vehicular pursuits that is taug ht 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. No v. 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 g o” 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 5 8 :4 -18 ; see Trial T r. Nov. 17, 2022 a.m. at 32:21-33:1 (Captain Porter explai ned: “If it comes out and they’re just chasin g 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 .”)

. A ccording to Officer Totaro, MPD officers learn to prioriti z e “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 explai ned the concept of “due regard,” meaning the “protection o f 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 7 7:16-18 (General Order 301. 03 states: “When a member of

t he [MPD] is engaged in a vehicular pursuit, the overriding responsibilities are the protection of28 life and property”) ; see also Gov’t Ex. 401-D (MPD General Order 301.03 on Vehicular Pursuits) at 1

. Off icer Totaro explai ned that when she instructs student s, 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 o fficer 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 su spect will wreck o r 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 gett ing is driving lik e, kind of like erroneously, disob eying , y ou 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 traini ng places on the p rinciple 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 t hat 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.”). W hen

t eaching classes of new officers a bout 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 and29 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 o rder 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 th at 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 Ge neral 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 e vidence presented at t he 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 F ED

. R. C RIM

. 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 fromJonathan Urrutia-Chavez, the man who was driving the Scion that collided with Mr. HyltonBrown 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. UrrutiaChavez collided with Mr. Hylton-Brown, he “didn’t see any lights” or “see any police.” Id . at 33:6-7.30 explained that a majority of the ve hicle training that officers receive centers on MPD General Order 301.03 on V ehicular 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 V ehicular Pursuits)

. Officer Totaro and O ffic er 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. N ov. 15, 2022 a.m. at 78:16-80:13 (Officer Totaro testif ied 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) ; s ee a lso 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 so meone 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 ).
T he 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 ); Tria l Tr. Nov. 15, 2022 a.m.

at 90:24-92:2 (Officer Totaro explain ed that she instructs officers to get warrants for fleeing suspects who have committed offenses for which pursuits are not authorized). One of the31 policy’s “rules” i s 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 p resented expert testimo ny from Robert Dr ago, 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 poli ce training and national model police practices , procedures, and polic ies. 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 office r is] pursuing.” Trial Tr. Nov. 3, 2022 p.m. at 104:3-18.
M r. 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 consid er, for example, the we ather 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 to32 have less safety equipment, you know, and probably [would be] at greater danger for greater injury.” Id

. at 10 3:22-104:2.
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. T rial 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 “acti vate all emergency equi pment” during a chase. Id . at 119:11-16 ; see Trial Tr. Nov. 15, 2022 a.m. at 93:10- 19 (Officer Tot aro explained that MPD teaches and tests on the requirement to have all emergency equipment activated during a pursuit). And, consist ent with the national s tandard, 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 int o 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 traini ng 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 Afo rethought The government was required to prove that Mr. Sutton acted with m a lice; that is, that he acted w ith 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.33 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 offi cer 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 c lear tha t 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 lig hts and sirens mu st 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 f or faili ng 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

a lleyway , 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 ro de a moped without a helmet, at “a serious risk of death or serious34 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 insu fficient 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 reason s: the CST vehicle’s speed had “nothing to do with compliance with the general order”; Mr. Zabavsky authorized the pursuit by c alling it a “chase” over the Ops radio channel; the general order does not require officers to consider the safety of fleeing su spects ; 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 fa il to consider the evidence in the light most favorable to the govern ment , as the Court must on a motion under Rule 29. See Gov’t Opp. at 11 n.4 ; see als o Uni ted States v. Kayode, 254 F.3d at 212-13; Un ited States v. Borda, 848 F.3d 1044, 1055 (D.C. Cir. 2017). Although the jury could have concluded that Mr. Sutton did no t 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 M r. Hylton-Brown when Mr. Hylton-Brown had only committed minor traffic offenses; and he neglected to broadcast his pursuit over th e 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.
M r. Sutton next argues that the government’s only evidence of malice is his allege d noncompliance with the General Order 301.03 on Vehicular Pursuits, and that this evidence is necessarily insufficient to establish malice

. He asserts that “[t]h e government’s35 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, whethe r 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.”). B ecause the government only presented evidence relating to whether Mr. Sutton violate d the general order, Mr. Sutton
argues, the government’s evidenc e was necessarily ins ufficient to establish that he acted with malice , as the jury was prohibited from relying solely on evidence that Mr. Sutton vio lated the general order when determining guilt. See Sutton Mot. at 13, 17-18; Sutton Reply at 5-6. To
pro ve 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 admi tting 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 pol icy for the Metropolita n Police Department. The general orders are not laws. Their provisions are administered exclusively by the Metropolitan Poli ce 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 o f 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.36 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.
Ju ry Instructions at 17 (emphasis added). Mr. Sutton is correct that evidence that he violated General Order 301.03 on Vehicul ar 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 30 1.03. The government presented evidence about national policing standards through the expert testimony of Robert Drago and eviden ce about MPD vehicle skills training through the expert testimony of Carolyn Totaro. Although both Mr. Drago and Officer Tota ro 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 vehicu lar 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 foot age, she explained that she would instruct an officer in Mr. Sutton’s position to “let it go” rather than continue the pursuit. S ee Trial Tr. Nov. 15, 2022 p.m. at 57:13. Officer Totaro also testified at length about the principle of “due regard” and that MP D officers are trained to prioritize safe ty 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 judg ment of acquittal is required because the government failed to present evidence that was “ independent” of his conduct that pot entially violat ed MPD General Orders. See Sutton Reply at 5. Mr. Sutton37 contends that the government’s evidence was nece ssarily insufficient to prove malice beca use “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

. Th e government appropriately used the standards set for th in General Order 301.03 – and evidence of the training that Mr. Sutton received about vehicular pursuits more broadly – to establis h Mr. Sutton’s subjective awareness of the level of risk that attended his decision to follow a motorist who wore no helme t, 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 es tablish malice

. See Sutton Reply at 5. Relatedly, Mr. Sutton argues that the government’s evidence was insufficient to prove malice becau se 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 maintai ns that this

case is analogous to United States v. Wood, 207 F.3d 1222 (10th Cir. 2008). There, a medical doctor, Dr. Wood, wa s prosecuted for second degree murder following the death of a patient who had been “drowning” from “excess fluid in his lungs.” Id . at 1227. Bel ieving the patient’s38 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,” an d 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 malic e 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 a forethought to go to the jury, that choice must be not only a gross deviation from a reasonable standard of care, but also extr emely reckless and wanton. Dr. Wood’s good

faith efforts at treatment simply do not rise to the “extreme” disregard for human l i fe 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 ,39 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 li fe.” 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 b e 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 li fe” 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 conduc t “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 he art,” 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. a t * 2. As the Court has explained: Whether a particular defendant acted with a “depraved heart” “may be shown by a ‘gro ss deviation from a reasonable standard of care’ or by other ac ts 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).40 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 d isregard for human life that was extreme in nature, and that
Mr . Sutton was aware that his conduct created an extreme risk of death or s erious bodily injury. ”).
T he jury was tasked with determining whether Mr. Sutton’s familiarity with MPD policies, hi s general training and experience, and his awareness that Mr. Hy lton -Brown was not wearing a helmet made him subjectively aware that purs uing 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 disreg ard 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 camer a footage d epicted , 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 h is em ergency lights and sirens ; only s econds before the collision , Mr. Sutton accelerated . Absent Mr. Sutton’s decision to pursue, Mr. Hylton- Brow n41 would not have died. See June 5, 2023 Hearing Tr. at 53:7-8 (government counsel arguing that,

“ [a] bsent that p urs uit, 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 sub tracted the defendant’s actions from the chain of events, the decedent would not have been killed.”). The se 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 Instructi ons at 29 (defining “but- for cause” and “proximate cause”).
A s to proximate cause, i t was also reasonabl e 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 jur ors 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 testimon y 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. H e ha d 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 being42 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 governm ent’s evidence was sufficient to establish both but- for and proximate causation.
M r. Sutton argues that no reasonable juror could find beyond a reasonable doubt that he caused Mr. Hylton-Brown’s death because “the c ause 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 wo rn 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, D istrict 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 f or the reasonably foreseeable interven ing 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 de ath

. Mr. Sutton also contends that the government’s framing of the ev idence – that Mr. Sutton “flushed” Mr. Hylton-Brown into Kennedy Street, where he was struck and killed by43 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- Brow n’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
ap peared 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 t o describe Mr. Sutton’s conduct in the arg uments of government counsel.
F inally, 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 in jury and that Mr. Hylton- Brown’s f atal 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 acquitta l 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 with44 an erroneous path to a guilty verdic t

. . . as long as a properly instructed jury had enough evidenc e 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 disreg arded that risk and continued a pursuit in violation of MPD trai nings 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 Offense s

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 offic er . . . of the United States of information relating to th e commission or possible commission of a Federal offense.” 18 U.S.C. § 151 2 (b)(3). The Court explained to the jury th at the government must prove the following elements o f obstruction of justic e 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 communicat ed to a law enforcement officer of the United States; and 5. That the information related to the co mmission or the possible comm ission of a federal offense. Jury Instructions at 30. The Court further instructed the jury that: “Misleading conduct” includes45 (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 i ntent” means that the defendant did so voluntarily, on purpose, and not by mistake or accident. Jury Instructions at 30-31. Finally, the Court explained:
Becau se the statute explicitly ref ers to the possible commission of a federal offense, the government need not prove that a ny person was actually guilty of any underlying federal offense. Jury Instructions at 31. 7
The first three elements of the obstruction of justice offen se are re latively 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 “intentiona lly 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. Sutto n or Mr. Zabavsky . . . knowingly associated himself with the commission of the crime, that he participated in the crime as something he wishe d to bring about, and that he intended by his actions to make it succeed. Some affirmativ e 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 e nough if it is intende d 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 committ ed. Jury Instructions at 32.46 Section 1512(b)(3)’s knowledge element requires that a person knows that his or her conduct toward another person is misleadin g. 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 Sectio n 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 federa l law enforceme nt officials t hat 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 ).
M r. Sutton and Mr. Zabavsky ’s primar y 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.47 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)”) . T he fourth element is satisfied where it is “reasonably likely under th e 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 a gent.’”) (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) ).
T he 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 offen se
. 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 Sta tes 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 to48 obstructive behavior that the defendant knows could impede an investigation into conduct that could constitute a federal crim e 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 ; se e United Stat es v. Snyder, 865 F.3d at 494 (“The statute does not require proof that the defendant knew the feder al status of the officer or underlying proceeding.”). See also United States v. Rodriguez- Marrero , 390 F.3d 1, 13 (1st Cir. 2004) (it is “irre levant” for t he 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).
D uring liti gation 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 Particula rs Op . at *8 (quoting United States v. Ring, 628 F. Supp. 2d at 200); s ee 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 o r 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, t he statute criminalizes obstructing the transmission of information about an actu al or potenti al 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 the49 existence of one be pl ed in the ind ictment. 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 Rul ing
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 t he federal ch aracter of the investigation, not guilty v erdicts 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 t he 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). T he Fourth Circuit has rejected the argument that the government failed to satisfy the federal offense element of Section 1512 where a p erson’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 u nder 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 u nderlying offense is never prosecuted at a ll

. Id

.50 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 t he person “kno wingly 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 funda mental characteristic of a conspiracy is a joint commitment to an ‘endeavor which, if comple ted, woul d 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. T hat Terence Sutton and Andrew Zabavs ky agreed to commit the crime of Obstruction of Justice. . . . 2. That Terence Sutton and Andrew Zabav sky 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,

s ee 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:51 At the Fourth District police station, Sutton and Zabavsky met with the Watch Commander, the senior -mos t 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 co nduct, 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. Zabavs ky 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 informa tion 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 evidenc e 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 fro m the earlie st stages of the chase. Officer Tejera explained t hat: “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 expla ined 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 t o intercept the moped from a different direction”). Captain Po rter also explained that he52 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. Hy lton -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 gene ral Fourth
D istrict 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 of ficers must broadcast their pursuits on the main channel is so that supervising officers can order that a pursuit be terminate d if the pursuit is too dangerous or otherwise violates MPD policies. Id

. Members of CST also have access to a separate radio ch annel, just for members of that team, which witnesses referr ed 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 Vehicu lar Pursui ts , 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 Purs uits)

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 broa dcast information about an ongoing pursuit violated General Order 301.03 ).
T he government’s evidence indicated that Mr. Sutton and Mr. Zabavsky only communicated about the chase on the Ops channel, not on the main channel. Se e 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 O ps chan nel recording, Mr. Zabavsky can be heard saying53 “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 th e O ps 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 a t no time prior to the collision did any of the four officers in the CST vehicle use the main channel to broadcast information ab out 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 ch annel 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 th at captured the scene in the immediate aftermath of the collision. Officer Tejera’s body worn

camera , for exam ple, began recording audio seconds after the collision occurred

. See Gov’t
Ex. 202 (Tejera body worn camera ). As the officers – including Mr. S utton and Mr. Zabavsky – approached the crash site where Mr. Hylton-Brown and the moped were lying in the street, one of the officers sa id, “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 Of ficer 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 and54 preventing other traffic from coming through as they waited for an ambulance. See Gov’t
Ex. 202.
B ody worn camera footage and t estimony at trial indicated that Mr. Sutton and Mr. Zabavsky were aware of the serious nature of Mr. Hylton-Brown’s condition. Officer Novick and Offic er 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 4 3:3-8 (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 Zab avsky kind of panned” across the scene wh ere Mr. Hylton-Brown was) ; Trial Tr. No v. 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 scen e) ; 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).
M r. Sutton’s body worn camera shows that Mr. Sutton exited his vehicle and called out, “Karon!” as he walked over to w here 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 pressu re to h is 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

.55 The government’s evidence demonstrated that multipl e officers assumed that Mr. Zabavsky would be in charge of managing the c rash scene

. Officer Tej e ra explained that Mr. Zab avsky, a lieutenant, was the highest ranking official on the scene, and therefore Officer Tejera assumed that Mr. Zabavsky was in cha rge of the scene . Trial Tr. Nov. 2, 2022 p.m.

at 71:17-24. Similarly, O fficer 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 th e scene , ensuring the preservation of evidence, and notifying the Major Crash Un it 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 Port er 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 tha t Mr. Z abavsky “knew general orders very well”).
O ther witnesses tes tified, however, that while at the crash site, Mr. Zabavsky didnot notify senior MPD officials or the Major Crash Unit about the serious nature of Mr. HyltonBrown’s injuries. See Tria l 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 notificati on 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.56 See Gov’t Ex. 200 (Sutton body worn camera); Gov’t Ex. 204 (Zabavsky body worn camera).
P olice 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. Hylto n-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 ). Office r Arn one 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 w alk ed away from the group of other officers standing at the mouth of t he alleyway and both turn ed 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

co llision s cene, 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 vehi cle 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 pa rt of Mr. Hylton -Brown’s moped. Trial Tr. Nov. 8, 2022 p.m. at57 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 vehicl e away fr om 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. T he Fo urth 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 s uperior officer, who was on duty as w atch commander that night. In addition, M r. Sutton drafted a “PD-10” traffic crash report, in which he described the events leading up to the collis ion. 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 procedu res , 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 w atch 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 rotate58 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 e xplained 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. T he 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
“co me 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 tha t, in his experience working with Mr. Zabavsky, Mr. Zabavsky “would call the watc h 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 inform ation 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”). Captai n Porter further explained that he had a “personal and profes sional” 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 vehicula r 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 f orward59 that information to the Internal Affairs Divi sion (“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 collect ing information, rather than waiting to receive a pr eliminary 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 rad io 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,” li ke MPD officers “hear almost ever y 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 Por ter 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. I f someone’s injuries might resu lt in death, Captain Porter testi fied, 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 h e would want to hear about a vehicular pur su it over the main radio channel

. Se e id. at 66:11-18 (Capt ain 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?” ).60 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. A s 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 abou t, “We wa nt 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 pi cked the conversation up I believe , and he says, “Well, we were fol lowing 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 a nd 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- Bro wn 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. HyltonBrown’s injuries – all they said was that another officer was at the hospital with Mr. Hylton

-61 Brown, without further explanation. Id . at 57:1- 13 . S ee 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.”). Capt ain Porter al so 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.
Du ring this initial conversation, neither Mr. Sutton nor Mr. Zabavsky mention ed 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 ex plain the si tuation,” 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 proc eed 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, neith er Mr. Sutto n 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 5 7:3-9. 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 mi nutes after the initial conversation betwee n Mr. Zabavsky, Mr. Sutton, and Captain Porter, Mr. Zabavsky re-entered Captain Porter’s office and told him, “We62 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, Offi cer Ernie Davis, reported that Mr. HyltonBrown 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. Captai n 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 s ure, 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 Off icer Tejera’s body worn camera footage “fro m 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 P orter’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 offic er , 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 bec ause63 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 sc ene, 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 V ehicle #2 [Mr. Hylton -Brown] at 5th St NW an d 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 contin ued to drive at a slow speed while braking and coming to random stops, as if he was going to bail off th e listed vehicle. Officers deactivated their emergency lights and followed V e hicle #2 at a slow speed with distance in between their vehicle and Vehicl e #2 into the 700 block of Ingraham St NW. At the time, there was little to no veh icular 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 canva s the area, in t he 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 Vehicle64 #2 disregarded again and continued southbound at a slow speed in the 54 00 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 nort hbo und 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 immedia tely 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 ass umed 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.
Jo seph 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 t raffic 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 w ell known” that “[p]olice reports are supposed to contain factual and truthful information.” Id . at 74:7-18 ; see id . (Agent D ella Camera explained that it would violate MPD policy to wr ite false or misleading report s).65 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. Of ficer 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 th e collision occurred

. Id . at 26:4-27:20. He explained that, in gene ral, a “delay in notification” can affect a Major Crash Unit investiga tion 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

stat ion prior to Officer Folts getting th at 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 officer s – 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 morn ing. 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.
W hile MPD police officers are permitted to handle ordinary traffi c collisions, the Major Crash Unit usually gets involved whenever a co llision results in the “possibility of death,”66 including where injured parties experience “labored breathing, a large amount of blood,” “losing consciousness,” or “head injur[ies].” Tri al 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); Tr ial Tr. Nov. 14, 2022 p.m. at 62:7-22 (Officer Novick ex plain ed that Major Crash should be called “in the event of a crash that results in a fatality or a very serious injury”). Officer s s hould notify the Major Crash Unit “as soon as possible” after a ser ious collision, and Officer Folts said he would expect t he “most senior official on the scene” to make that notification. Trial Tr. Nov. 9, 2022 a.m. at 23:15-24:1.
A lthough 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 investig ation. 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 Folt s also told the jury that it is MPD policy to hav e officers “attempt to preserve or freeze ” the crash scene in its ori ginal condition. Trial Tr. Nov. 10, 2022 a.m. at 72:7-11.
T he 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. See67 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 no tification about the incident involving Mr. Hylton-Brown. Trial Tr. Nov. 7, 2022 p.m. at 29:21-30:10. IAD “investigates serious miscondu ct ” 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 w hen I AD is called to initiate an investigation, the on- call agent will beg in collecting “as much information as possible . . . to find out the circumstances and to preserve evidence” ). Although IAD agents generally investigate “administrative” violations whe re 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 1 6 :3 -25 ( Agent Della Camera testified that IAD investigates potential criminal offe nses 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

tes tified that she learned during training that failure to adhere to MPD general orders could result in administrative as well as criminal conseque nces); Trial Tr. Nov. 15, 2022 p.m. at 9:12-10:16 (Officer Totaro explained that MPD officers learn about the “l egal consequences for on -the-job driving incidents,” including civil and cr iminal liability if the officer’s conduct violates the law)

.68 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 “be cause 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.
A gent 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 wit h 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 c amera footage. Id . at 40:7-43:24 ; see Gov’ t Ex s. 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. Tri al Tr. Nov. 7, 2022 p.m. at 4 4 :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 testi mony).69 As part of his IAD investigation, Agent Della Camera reviewed Mr. Sutton’s draft traffic crash report describing the inciden t 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 review ing body worn camera footage and surveillance footage from the area where the chase occurred. Id . at 67:11-22. After reviewing this foot age, 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 repo rt 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. R ather, Agent Della Camera described what he saw on surve illance v ideo 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 rep ort: tha t 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 determin e 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.
U ltimately, Agent Della Camera concluded that “t he information in the traffic crash report was not acc urate or factual. . . . They [the CST officers] weren’t canvassing for him.
Th ey 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 Tejera70testified that during the pursuit, the CST vehicle “always” managed to stay behind Mr. HyltonBrown, that the officers only lost sight of Mr. Hylton- Br own 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. Hyl ton- 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, se rio us uses of force, and certain types of vehicular pursuits, IAD inves tigates 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.
W henever a vehicular pursuit occurs, an MPD official is supposed to collect information related to the pursuit and send that information to the w atch commander, who generate s a report. Trial Tr. Nov. 7, 2022 p.m. at 25:18-27:19 (Della Camera testimony) . The initial, district

- genera ted 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 ; s ee Trial Tr. Nov. 15, 2022 a.m.

at 103:13-104:22, 106:17-107:9 (Officer Totaro explained that MPD officers learn about postpursuit investigations during their training, including that IAD and the Major Crash Unit will investigate all pursuits involving fatalities or serious bodily injur y).71 Agent Della Camera also explained IAD’s process for referri ng 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 Attorne y’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. Attorne y’s Office. Id . at 75:18-76:21. Af ter receiving an IAD referral, t he 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 referr ed 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 Inter nal 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 Affair s? Agent Della Camera: Yes. Prosecutor: And what role do you have a fter the referral occurs in the investigation that’s conducted? Agent Della Camera: Once a referral is made [via] e- mail notific ation to the U.S. Attorney ’ s Office, I do a presentment report and turn that over to the U.S. Attorney ’ s Office for their review

. Prosecutor: Was there a referral to the U.S. Attorney’s Office made in this case? Agent Della Camera: Yes. Prosecutor: Who made it? Agent Della Camera: I believe I made it but it may have been someone else in my office. Prosecutor: When was it made? Agent Della Camera: Shortly after getting back to the office on the 24th. The Court: So referral was made that evening or the next morning?72 Agent Della Camera: The next morning, yes. Prosecutor: Approximately how many hours after the crash was th e referral made ? Agent Della Camera: Within eight hours. Prosecutor: Who was the referral made to? Agent Della Camera: Assistant United States Attorney Kendra Briggs. Prosecutor: Wh at part, what unit within the U.S. Attorney’s Office does she work in? Counsel for Mr. Sutton: Objection

. The Court: [after confirming the question] Overruled. Go ahead

. Agent Della Camera: The Public Corruption and Civil Rights Section. Prosecutor: Is that on the federal side of the U.S. Attorney’s Office or the Supe rior Court side? Counsel for Mr. Sutton: Objection. The Court: Overruled, if you know. Agent Della Camera: Federal. The Court: Did you, in making the referral or the IAD in making the referral, decide who in the U.S. Attorney ’ s Office or what section or unit to refer it to? Agent Della Camera : The unit is always the same. The particular individual who we refer to could change over time. It depends on who is in that particular ro le that we have liaison with. The Court: Are you saying that any tim e you make a report or referral from IAD to the U.S. Attorney ’ s Office, it always goes to the Public Corruption and Civil Rights Section ? Agent Della Camera : Yes, sir. Trial Tr. Nov. 7, 2022 p.m. at 97:2

- 99: 13. After making the referral, there was testimony that the U.S. Attorney’s Office began an investigation into the incident . Agent Della Camera explained that he transmitted documents to the U.S. Attorney’s office and “sat in on some of the interviews of witnesses ” that the U.S. Attorney’s Offic e conducted. Trial Tr. Nov. 7, 2022 p.m. at 99:19

- 100:11. Based on his participation in meeting s with witnesses , prosecutors, and other agents , Agent Della Camera was under the impress ion that the U.S. Attorney’s Office was taking steps to examine whethe r a73 federal civil rights violation had occurred. Id . at 100:13-101:20. Agent Della Camera’s

tes timony was as follows: Prosecutor: After the referral was made, did you have a role in s ome of the initial investigation conducted at the U.S. Attorney’s Offi ce? Agent Della Camera: Yes. Prosecutor: What role did you have? Agent Della Camera: Initial ly, I sat in on some of the interviews with witnesses. The Court: Sat in on what? Agen t Della Camera: I sat in with some of the interviews of the witnesses . I listened to some of the interviews. Prosecutor: Did you also participate in meetings with p rosecutors and federal agents? Agent Della Camera: Yes. Prosecutor: What was your understanding of what type of investigation this was? Counsel for Mr. Sutton: Objection, hearsay. The Court: Th e objection is noted. And the question is what is your understanding. Say it again, what was your understanding? Prosecutor: What was your understanding of what type of investigation this was? Agent Della Camera: At the time, according to AUSA Baset, it was a civil rights investigation. Prosecutor: Court’s brief indulgence. . . . In those witness interviews, were investigative steps taken to e xamine whether there was a civil rights violation? The Court: If you know. Agent Della Camera: It’s my understanding there were. Prosecutor: Is that based on your p articipation in those witness interviews? Agent Della Camera: Yes. Trial Tr. Nov. 7, 2022 p.m. at 100:2-101:20. Agent Della Camera later clarified that the steps that the U.S. Attorney’s Office was taking were to examine whether a possible federal civil rights offense had occurred . Trial Tr. Nov. 8, 2022 a.m. at 11:17-12:1. Special Agent Sean Ricardi also testified about the investigation into this incident that the U.S. Attorney’s Office conducted. Special Agent Ricardi is “a member of the criminal investigations unit of the U.S. Attorney’s Office, which is a group of special agents who are74 assigned to the U.S. Attorn ey ’ s Office and investigate crimes, generally federal crimes.” Trial Tr. Oct. 26, 2022 p.m. at 11:8-19. He explained that he was directed to investigate “the crash and everything that led up to that crash,” as well as “everything that happened at the cra sh scene and everything that happened after the crash sce ne.” Id . at 16:4-8. The following exchange then occurred: Prosecutor: And what kind of investigation was this referred for? Counsel for Mr. Sutton: Objection, your honor, legal question, beyond his competence. The Court: You can testify about what you were told you were looking at. Overruled. Agent Ricardi: We were told this was a civil rights investigation. The Court: Who told you that? Agent Ricardi: Tha t would be my supervisor Special Agent in Charge Bryan Molnar and then Assistant United S tates Attorney Ahmed Baset when I first met him. Prosecutor: And when you were investigating, did you have particular criminal violations that you were focusing on lo oking for evidence about? Couns el for Mr. Sutton: Same objection, your honor, calls for hearsay. The Court: This is foundational and talks about what was his state of mind and what motivated his contact and [is] similar to other rulings I have made wit h respect to other witnesses. The objection is overruled. Prosecutor: What kinds of criminal violations were you investigating? Agent Ricardi: So we were looking for civil rights violations. We were looking to see if there was any attempt to cover up o r obstruct any potential investigatio n. We were looking at if Mr. Hylton were perhaps targeted by any of the officers involved. We were really trying to look at the initial interaction from all angles

. Trial Tr. Oct. 26, 2022 p.m. at 16:9-17:17. The government also elicited the followin g testimony from Agent Ricardi: Prosecutor: Now you testified . . . when you got this assignment, you were told to do a civil rights investigation. Do you remember testifying to that?75 Counsel for Mr. Sutton: Objectio n. Asked and answered. She’s going back to testimony

– The Court: She’s laying a foundatio n for whatever question she is about to ask. Agent Ricardi: Yes. I remember that. Prosecutor: When you got that assignment, were you doing an investigation i nto federal civil rights violations o r D.C. code violations? Agent Ricardi: Federal civil rig hts violations. Prosecutor: You said you were put in touch with AUSA Ahmed Baset to work on this investigation. Is that what you testified to the other day? Ag ent Ricardi: Yes. Prosecutor: Are you familiar with the organization of the D.C. U.S. Attor ney’s Office? Agent Ricardi: Yes. Prosecutor: Does the office have some units t hat prosecute federal crimes ? Agent Ricardi: Yes. Prosecutor: Do some units p rosecute local crimes? Agent Ricardi: Yes. Prosecutor: What unit was AUSA Baset assigned to ? Agent Ricardi: He was assigned to Public Corruption and Civil Rights. Prosecuto r: Does that unit work on federal cases or D.C. Superior Court cases? Agent Ric ardi: Federal cases. Trial Tr. Oct. 28, 2022 p.m. at 64:22

- 66:2.

C. The Government Has Me t I ts Burden as to Obstruction of Justice 1. Misleading Conduct The e vidence presented at trial was sufficient for a reasonable jury to conclude that Mr. Sutto n and Mr. Zabavsky “engage[d] in misleading conduct toward another person.” 18 U.S.C. § 1512( b). T he jury was entitled to rely on the testimony of Captain Porter , w ith whom Mr. Sutton and Mr. Zabavsky spoke after the collision. Captain Porter’s t estimon y indicated that Mr. Sutton and Mr. Zabavsky “create[ed] a false impression” in Captain Porter ’s mind about what had occurred that night by “omitting information” and “intentionally con c ealing [] material76 fact[s].” 18 U.S.C. § 1515(a)(3)(b). Captain Port er was led to believe that an officer was standing by at the hospital to potentially arrest Mr. Hylton- Brown for driving under the influence, not to monitor his critical injuries

. Captain Porter also thought that Mr. Sutton had talked to Mr. Zabavsky abou t the chase only after it had occurred , and he was not aware that Mr. Zabavsky himself was inv olved in the chase from the start. Captain Porter explained that he

wou ld have taken different steps if Mr. Sutton and Mr. Zabavsky had been truthful with him du ring their initial conversation . For instance, Captain Porter testified that if he had known that Mr. Zabavsky was involved in the chase, he would not have enlisted Mr. Zabavsky to review the body worn camera footage to determine whether a chase had occur red or to otherwise participate in the investigation of the incident. Captain Porter also called IAD as soon as he realized that Mr. Sutton had engaged in a pursuit and suggested that he would have called IAD sooner had he known about the pursuit earlier in the evening. On this record, a reasonable jury could find that Mr. Sutton and Mr. Zabavsky engaged in “misleading conduct.” The jury was also entitled to rely on Agent Della Camera’s testimony about Mr. Sutton’s draft traffic crash report. Agent De lla Camera stated explicitly that Mr. Sutton’s report contained facts that were not accurate – Mr. Sutton described the CST vehicle as “canvassing” the area for Mr. H ylton-Brown, but both Agent Della Camera and Captain Porter testified that video footage show ed that the CST vehicle was not “canvassing” the area at all . Furthermore, the government introduced body worn camera footage from just after the collisio n, which shows that Mr. Sutton and Mr. Zabavsky were present on the scene and observed Mr. Hylton- Brown’s injuries – injuries that many other officers described as “serious.” See Gov’t Ex. 201 (Novick body worn camera); Gov’t Ex. 200 (Sutton body worn camera) ; Gov ’t Ex. 204 (Zabavsky body

worn camera ). Although Mr. Sutton was not one of the officers who rendered aid to Mr. Hylton-77 Brown, a reasonable juror could conclude from the body worn camera footage that Mr. Sutton was aware of the serious injuries that Mr. Hylton

- Br own sustained and that Mr. Sutton’s decision to describe those injuries as “superf icial” in his draft report was misleading. See 18 U.S.C § 1515(a)(3)(B).
M r. Sutton suggests that no reasonable juror could conclude that the draft traffic crash report he authored was misleading because it was just a draft that would “not become final until extensive review by him and others in the ordinary course.” Sutton Reply at 17 ; see Trial Tr. Nov. 10, 2022 a.m. at 48:6- 20 (Officer Folts explained on cross examinati on that officers are instructed to submit draft traffic crash reports to their sup ervisors and revise those reports before they become official). Because the report was a draft subject to revision and editing, Mr. Sutton

assert s that hi s failure to includ e information about the severity of Mr. Hylton-Brown’s injuries in that report cannot be interpreted as “misleading” conduct. Sutton Reply at 18 -19. The Court disagrees . The government’s evidence established that Mr. Sutton chased Mr. Hylton- Brown and that Mr. Hylton- Brown sustained serious injuries from a traffic collision , of which Mr.
Sutton was aware . The government also presented evidence that MPD officers receive training about when IAD and the Major Crash Unit conduct investigations, that supervisors within MPD are responsible for making notifications to the appropriate departments, and that Mr. Sutton was well -versed in MPD policies. Based on this evidence, a reasonable jury could conclude that Mr. Sutton knew that other MPD departments would investigate this incident, and that, because he was involved in this incident, his s tatements in particular would be reviewed by other MPD officials during their investig ations. Agent Della Camera , for example, did in fact rel y on Mr. Sutton’s draft report when investigating the pursuit. Drawing all inferences in the government’s78 favor, a reasonable juror could conclude that Mr. Sutton’s draft report was “misleading” and directed at another MPD officer , even though it was only a draft

. Mr. Sutton also argues that his description of Mr. Hylton-Brown’s injuries as “superficial abrasions” was consistent with the descriptions provided by medical professionals and therefore were not misleading . Sutton Mot. at 23-24. The Court also finds this argument unpersuasive. Mr. Sutton was present at the collision site and was in close proximity to Mr. Hylton-Brown’s body while other officers tended to Mr. Hylton-Brown, who was unconscious, bleeding from the head, and vomiting. See Gov’t Ex. 201 (Novick body worn camera ); Gov’t Ex. 200 (Sutton body worn camera ). Multiple officers at the scene with Mr. Sutton testified that they observed Mr. Hylton-Brown’s injuries and that those injuries were serious. Based on this evidence , a reasonable jury could easily conclude that Mr. Sutton was aware of the serious nature of Mr. Hylton-Brown’s injuries . A r easonable jury could also conclude that Mr. Sutton’s report – which omitted details about the blood and vomit and only described M r. Hylton

- Brown’s injuries as “superficial abrasions” – was misleading because it gives a reader an inaccurate impression about the nature of Mr. Hylton- Brown’s injuries

. See United States v. Veal , 153 F.3d

at 1254 (defendants’ “intentionally omitting and concealing important, relevant information . . . from the investigators, and, thus, creating a false impression about what ha d actually occurred

. . . constituted ‘misleading conduct’”) ; United States v. Hawkins, 185 F. Supp. 3d at 125 (misleading conduc t includes “intentionally concealing material facts”); 1 8 U.S.C. § 1515(a)(3) (misleading conduct includes “intentionally conce aling a material fact, and thereby creating a fal se impression by such statement”). Mr. Zabavsky argues that the government’s evidence about Mr. Sutton’s draft traffic crash report “cannot be used as evidence that Zabavsky or Sutton intended to obstruc t79 justice .” Zabavsky Mot. at 14. H e contends that “ [t] he Government at trial claimed that Zabavsky instructed Sutton to write the [traffic crash] report, that it was improper for Sutton to write the report, and that Zabavsky approved and adopted the report written by Sutton. However, no reasonable jury could find those facts beyond a reasonable doubt.” Id . at 13. Mr. Zabavsky misconstrues the government’s burden. The government was not required to prove that Mr. Zabavsky instructed Mr. Sutton to write the report, that it violated MPD policy for Mr. Sutton to write the report, or that Mr. Zabavsky adopted the facts contained in Mr. Sutton’s

re port. Failure to establish any one of these facts is not dispositive. Rather, the jury was permitted to consid er evidence about the authorship of the report – for example, that Officer Arnone expected to write the report and Mr. Zabavsky told her that Mr . Sutton would write the report instead – when determining whether Mr. Zabavsky’s conduct was knowingly “mislead ing.” Moreov er, in addition to evidence of Mr. Sutton’s draft report , the government introduced other testimony about Mr. Zabavsky’s misleading condu ct – the most prominent being that Mr. Zabavsky omitted critical information about Mr. Hylton

- Brown’s inju ries and the

natu re of the pursuit when speaking with Captain Porter, and that Mr. Zabavsky suggested that Mr. Hylton-Brown was intoxicated and was slurring his words, despite the body worn camera footage showing that Mr. Zabavsky never directly attempted to speak with Mr. Hylton- Brown that night. In total, the government presented sufficient evidence for a reasonable jury to conclude that Mr. Zabavsky’s conduct was misleading.
M r. Sutton and Mr. Zabavsky both argue that they made honest, accurate

state ments to Captain Porter, and therefore that no reasonable jury could conclude that their conduct was misleading. Mr. Sutton points out that he told Captain Port er that he had followed Mr. Hylton-Brown for “a little bit” and “for two minutes.” See Sutton Mot. at 22-23; Trial Tr.80 Nov . 17, 2022 a.m. at 54:10-14 (Porter testimony). Mr. Zabavsky similarly argues that he “affirmatively informed his commanding officer of his involvement in the incident” and told Captain Porter that Mr. Hylton-Brown was at the hospital. Zabavsky Mot. at 7 ; Trial Tr. Nov. 21, 2022 p.m. at 6:16-8:7 ; id

. at 7:1 -19 (counsel for Mr. Zabavsky argued that Captain Porter never testified to being misled).
T hat Mr. Sutton and Mr. Zabavsky may have made some t ruthful statements does not preclude the jury from determining that their conduct was misleading. See , e.g., United States v. Williams , 827 F.3d 1134, 1164 (D.C. Cir. 2016 ) (“ That there may be alternative interpretations of the evidence is not relevant because the court must presume that the jury resolved any conflicting inferences supported by the record in the Government’ s favor. ”); United States v. Ronga, 682 F. App’x 849, 854-55 (11th Cir. 2017) (rejecting the argument that “when an individual abandons his deceptive ways and provides truthful information, the [Section 1512(b)(3)] conviction cannot stand”). “Misleading conduct” includes the “intentional omission” of cert ain information or material facts “thereby creating a false impression” in the mind of the recipient of the information. 18 U.S.C. § 1515(a)(3) (B) . The trial record reflects that Mr. Sutton and Mr. Zabavsky stood together in Captain Porter’s office and f ailed to mention the seriousness of Mr. Hylton-Brown’s injuries. They failed to pro vide Captain Porter with a f u ll and truthful account of the events leading up to the collision, including the fact that Mr. Zabavsky was involved in the chase from the very beginning. Instead, the two of them left Captain Porter with the impression that Mr. Hylton- Brown might later be arrested for driving under the influence – not that he might die because of his injuries. Taken in the light most favorable to the governmen t, it was not unreasonable for a jury to conclude on this record that
Mr. Sutton ’s a nd Mr. Zabavsky’s conduct was misleading.81 2. Knowledge The trial record is sufficient for a reasonable juror to conclude that Mr. Sutton and Mr. Zabavsky knew that th eir conduct was misleading. The government introduced significant evidence that both Mr. Sutton and Mr. Zabavsky knew that certain information should have been transmitted to superior officers – specifically, that the Major Crash Unit should be notified when a collision involves serious injuries and that IAD should be notified whenever a pursuit occurs. Instead of making these notifications, Mr. Sutton and Mr. Zabavsky gave Captain Porter an incomplete account of the events leading up to the collision and failed to notify the proper departments within MPD

. The jury could infer Mr. Sutton ’s and Mr. Zabavsky’s knowledge from evidenc e – including body worn camera footage and testimony from other officers – about Mr. Sutton and Mr. Zabavsky’s observations, expectations, and training. See United States v. Guadalupe, 402 F.3d at 414-15 (“[K]knowledge can be inferred by virtue of the [defendant’s] position . . . [and] extensive knowledge of how investigations of the sort involved here proceed.”); United States v. Ring, 628 F. Supp. 2d at 214 (defendant’s familiarity with disclosure rules was sufficient to establish that he had the requisite knowledge when he made misleading disclosures). Multiple witnesses described both Mr. Sutton and Mr. Zabavsky as well- ver sed in MPD policies and procedures. The jury could infer that Mr. Zabavsky in particular was familiar with MPD policies and expectations of MPD officers because Mr. Zabavsky had previously served as a watch commander more than fifty times, and because a person with the rank of lieut enant would know to notify the watch commander and call the Major Crash Unit given Mr. Hylton- Brown’s condition. Officer Folts explained that, consistent with MPD policies, the Major Crash Unit “should have been notified immedi ately” once the officers the on scene learned about the serious82 nature of Mr. Hylton- Brown’s injuries – and Offic er Tejera and Officer Arnone both testified that they expected Mr. Zabavsky, the highest-ranking officer at the scene of the collision, to make any required notifications to the Major Crash Unit. The jury was entitled to consider all of the government’s evidence regarding Mr. Sutton’s and Mr. Zabavsky’s history and experience as MPD officers when determining whether their “statements and omission s were knowingly misleading. ” United States v. Brown, 934 F.3d
at 1301 ; see United States v. Carson, 560 F.3d at 584 (sufficient evidence to sustain Section 1512(c)(2) conviction where “there [was] ample circumstantial evidence” but “no direct evidence” of kn owledge) . The jury heard te stimony from Officer Arnone that MPD officers are trained on how to write reports and how to process traffic crash scenes. See Trial Tr. Nov. 8, 2022 p.m. at 31:2-14. And the jury heard from Agent Della Camera, who explained that Mr. Sutton’s draft report was inconsistent with body worn camera and surveillance footage, even though MPD officers are trained to write truthful, accurate police reports. Officer Folts and Agent Della Camera explained that the crash site was poorly preserved, and the jury heard testimony that Mr. Sutton and Mr. Zabavsky permitted witnesses to leave the scene. Captain
Porter also testified about his initial conversation with Mr. Sutton and Mr. Zabavsky, which gave Captain Porter the wrong impression about what had occurred leading up to the collision. Based on this direct and circumstantial evidence, as well as the evidence pertaining to MPD trainings and procedures, a reasonable juror could conclude that Mr. Sutton and Mr. Zabavsky knew that their cond uct was misleadi ng. M r. Sutton argues that “[t]he requisite criminal intent for obstruction of justic e was not proven to have occurred at the scene of the collision .” Sutton Mot. at 21 (emphasis added) . He contends that his conduct could not be “obstru ctive” unless he “knew he had83 engaged in a criminal act and knew that Hylton-Brown had suffered life threatening injuries and was likely to die as a result” at the time of his “obstructive” actions. Id . This argument is not persuasive because Section 151 2(b)(3) does not require such a specific showing for the government to prove knowledge. Rather, as the jury was instructed, a factfinder may infer someone’s intent or knowledge from all of the surrounding circumstances. See Jury Instructions

at 40 ; United States v. Bailey , 405 F.3d at 109 n.3 (Section 1512( b)(3) “does not require that the defendant specif ically know that the underlying conduct could constitute a federal offense”). The jury could concl ude that Mr. Sutton knew that his conduct – concealing details from Captain Porter and providing a watered-down description of Mr. Hylton-Brown’s injuries in his draft report – was misleading even if Mr. Sutton did not know for certain that Mr. Hylton- Brow n would die. And there is certainly no requirement under Section 1512(b)(3) that Mr. Sutton knew that his actions during the pursuit were criminal, as the s tatute itself prohibits obstruction related to “possible ” federal offenses

. See 18 U.S.C. § 1512(b )(3) (emphasis added). The government
pr esented ample evidence from which a reasonable jur or could infer that Mr. Sutton knew that his conduct was misleading, and no more was required: Mr. Zabavsky described Mr. Sutton’s conduct as a “chase” over the Ops radio channel before the co llision , which Mr. Sutton was using, but both men refrained from using that language when speaking with Captain Porter ; Mr.
Sutto n failed to preserve evidence at the collision site and provided an incomplete, i naccurate descripti on of the pursuit in his draft report; and Mr. Sutton and Mr. Zabavsky turned off their body worn cameras and had a private conversation at the scene of the collision

. M r. Zabavsky similarly argues that the government did not prove t hat he was
“aware o f the full circumstances of the collision prior to notifying Porter of these circumstances.” Trial Tr. Nov. 21, 2022 p.m. at 8:2-7 ; see Zabavsky Mot. at 8. Because he was84 not in Officer Sutton’s car, and he did not witness the ent irety of the chase or the collision , he argues that his representations to Captain Porter were not made with sufficient awareness to be knowingly misleading. This argument is also not persuasive. The government established that Mr. Zabavsky spoke over th e Ops radio channel and announced that Mr. Sutton was “chasing” Mr. Hylton-Brown. That Mr. Zabavsky “had no knowledge of the exact location of HyltonBrown or Sutton at the time o f the collision” does not preclude a reasonable juror from finding that he k new his statements to Captain Porter would be misleading. S ee Zabavsky Mot. at 8. The government presented sufficient evidence – including body worn camera footage depicting
Mr. Zabavsky in close proximity to Mr. Hylton-Brown’s body immediately after the collision – for the jury to conclude that, at the time Mr. Zabavsky initially spoke to Captain Porter, he was aware of Mr. Hylton-Brown’s serious injuries and he knew those injuri es occurred after Mr. Sutton had chased Mr. Hylton-Brown for several minutes.
3. Specific Intent to Hinder, Delay, or Prevent
“ In ‘ most cases in which the defendant ’ s state of mind is at issue, it may be near impossible to establish the requisite men s rea through direct evidence’ and therefore proof of intent must be inferred from circumstan tial evidence.” United Sta tes v. Wheeler , 889 F. Supp. 2d 64, 68 (D.D.C. 2012) (quoting United States v. Schaffer , 183 F.3d 833, 843 (D.C. Cir. 1999)). The government introduced more than sufficient evidence for a reasonable juror to infer that both
Mr. Sutton and Mr. Zabavsky had the specific intent to hinder, delay, or prevent certain information from being communicated to federal law enforcement. Officer Folt s and Captain Porter both explained that notification to the Major Crash Unit should have bee n made much earlier by an officer at the scene of the collision ; yet neither Mr. Sutton nor Mr. Zabavsky made that call. Officer Folts also explained that MPD85 pol icies direct MPD officers to “freeze” collision sites in their original condition, yet Mr. Su tton and Mr. Zabavsky failed to do so. See Trial Tr. Nov. 10, 2022 a.m. at 72:7-11. Multiple witnesses testified that Mr. Sutton ran over a piece of Mr. Hylton-Br own’s moped at the scene instead of ensuring that the scene was properly preserved. And body worn camera footage indisputably indicates that Mr. Sutton and Mr. Zabavsky turned their body worn cameras off while they spoke privately at the collision site. After all of this, when Mr. Sutton and Mr. Zabavsky arrived back at the Fourth District, they failed to provide Captain Porter with a complete account of what had occurred. Taken together, this evidence was sufficient for a reasonable jury to find that M r. Sutton and Mr. Zabavsky had the purpose of making it harder for Major Crash Unit officers a nd IAD agents to learn the truth about the pursuit and collision. Drawing all inferences in the government’s favor, the government presented sufficient evidence of Mr. Sutton and Mr. Zabavsky’s intent.
M r. Sutton argues that “nothing that was done by the defendants or anyone else in this case prevented [Major Crash] from doing their job.” See Trial Tr. Dec. 9, 2022 p.m.

at 30:2-4. Because the Major Crash Uni t was able to do a full investigation, he says, the government could not have established that any communication of informatio n relating to the chase and collision was prevented, hindered, or delayed – let alone that the defendants intended to prevent, hin der, or delay any such communication. See Sutton Mot. at 24; Sutton Reply at 21 (“Major Crash and IAD were advised of the collisio n within 3 hours of the event.”). It is irrelevant , however, whether there was any “actual delay” in the Major Crash or IAD investigation , s ee Sutton Reply at 22, so long as Mr. Sutton inten ded to bring about a delay in some communication. See United Sta tes v. Perry , 335 F.3d 316, 322 n.9 (4th Cir. 2003) ( “[ Section 1512(b)(3)] applies to one who engaged in misleading conduct with an intent to86 ‘hinder, delay, or prevent’ communication with fe deral law enforcement officers. It does not require that the individual have succeeded.”). B ased on the evidence established at trial, the jury was entitled to conclude that Mr. Sutton acte d with the requisite intent. Mr. Zabavsky argues that the government failed to prove that he acted with the requisite intent bec ause he took several affirmative steps to share accurate information about the events leading to Mr. Hylton-Brown’s death. For example, he notified the Major Crash Unit as soon as he learned that Mr. Hylton-Brown was going to die. See Zabavsky Mot. at 12. Within the MPD’s body worn camera video storage system, h e also labeled his own body worn camera footage as relating to “I nternal Investigations

. ” Id

. ; see Gov’t Ex. 219-E (body worn camera audit log for Mr. Zabavsky’s body worn camera footage from October 23, 2020). Mr. Zabavsky suggests that these two actions make it impossible for a reasonable juror to have concluded tha t he acted with the specific inten t to hinder, delay, or prevent the communication of certain information. Id . The Court disagrees. The two pieces of evidence Mr. Zabavsky cites do not outweigh the significant other evidence the government introduced about Mr. Zabavsky’s intent.
See Un ited States v. Borda, 848 F.3d at 1055 (holding that the government’s evidenc e was sufficient to affirm conviction despite “numerous examples of evidence [the defendants] believe to be exculpatory or contradicting”); Unite d States v. Be ll , 113 F.3d 1345, 1350 (3d Cir. 1997) (evidence was sufficient to sustain Section 1512 convictio n where defendant was “motivated at least in part by a desire to prevent” a communication to federal officers concerning the possible commission of a federal o ffense); United States v. Ronga, 682 F. App’x at 855 ( “Perhaps it is possible that when an individual comes clean, he or she may no longer possess the necessary

mens rea. However, the elements of the crime are met before the individual provides truthful87 information, and there is no requirement that the individual persist in deceptive behavior to support a conviction.” ). Although Mr. Zabavsky labeled his body worn camera as relating to “Internal Investigations,” he also obscured his own involv ement in the chase when speaking with Captain Porter. And, although he eventually called the Major Crash Unit, he did so more than an hour after the collision had occurred, after the striking vehicle and the CST officers had left the scene. He also t old Captain Porter that he was not sure whether Mr. Sutton had engaged in a pursuit, despite broadcasting over the Ops radio that the CST was “chasing Karon. ” And h e and Mr. Sutton turned off their body worn cameras at the crash scene before heading back to the Fou rth District. Taken in the light most favorable to the government, a reasonable juror could easily

co nclude that Mr. Zabavsky acted with the requisite intent, notwithstanding the two “affirmative” actions he identifies in his motion

. See Zabavs ky Mot. at 12.

4. Communication to a Law Enforcement Officer of the United States The government clearly estab lished that it was reasonably likely that information about the circumstances of Mr. Sutton ’s and Mr. Zabavsky’s involvement in Mr. HyltonBrown’s death would be communicated to a federal law enforcement officer. See Fowler v. United States , 563 U.S. at 678. The government presented testimony about communications that must be made after an incident like this one, including notifications to various departments within MPD and referrals to federal officials at the U.S. Attorney’s Office. Specifically, th e government presented testimony about the kinds of incidents that IAD and the Major Crash Unit investigate and the kinds of cases that IA D refers to the U.S. Attorney’s Office as a matter of course. The government’s evidence established that when an offi cer engages in a pursuit – and especially when a civilian is killed or sustains serious bodily88 injury during or as a resul t of that pursuit – IAD must be no tified and will investigate the matter

. MPD officers learn about this notification process during their training. Wh en any person sustains bodily injury or is killed in a vehicle collision, the Major Crash Unit will also investigate

. MPD officers learn about this during their training , as well

. As Agent Della Camera and Officer Folts explained, the Major Crash Unit and IAD work togeth er and share information with one another to complete their investigations. After an investigation, IAD always refers misconduct cases involving civilian deaths to the U.S. Attorney’s Office for prosecut orial screening , and MPD officers learn d uring training that they may be subject to criminal prosecution for on-the-job misconduct. Assistant U nited States Attorneys in the Public Corruption and Civil Rights Unit and special agents employed by the U.S. Attorney’s Office like
Sean Ricardi are federal law enforcement officers who are responsib le for investigating incidents of police misconduct after those incid ents are referred to the U.S. Attorney’s Office. See Trial Tr. Oct. 31, 2022 p.m. at 72:8-13 (Agent Ricardi explained that he is a federal law enforcement offi cer whose “ultimate boss” is the United States Attorney, who is the “chief federal officer in any given federal district”). These notification procedures establish that, in vehicular pursuit cases involving civilian deaths, communication to a federal law enforcement officer at the U.S. Attorney’ s Office is all but guaranteed. The government also introduced evidence that certain information was in fact communicated to federal law enforcement officers following the chase and collision that resulted in Mr. Hylton- Brown’s death

. Capta in Porter testified that he called IAD as soon as he reviewed Offi cer Tejera’s body worn camera footage and realized Mr. Sutton was engaged in a chase. Agent Della Camera explained that he received Captain Porter’s phone call, an d within an hour, had himself reviewed body worn camera footage and responded to the scene to investigate

.89 Officer Folts testified that he received Mr. Sutton’s draft traffic crash report from Mr. Zabavsky, and that he subsequently forwarded that report to IAD. Agent Della Camera also explained that within eight hours of the collision, he referred this matter to the U.S. Attorney’s Office for prosecutorial review. Special Agent Ricardi, a federal officer, testified about the investigation he conducted following Agent Della Camera’s referral. From this record, the c ommunication of information relating to the chase and death of Mr. Hylton- Brown to a federal law enforcement officer was “more than remote, outlandish, or simply hypothetical.” Fowler v. United States , 563 U.S. at 678. 8 Mr. Zabavsky and Mr. Sutton contend that the communication of information to federal law enforcement was not “reasonably likely ” based on the trial record. They argue that the government’s evidence established that the Majo r Crash Unit and IAD “work in parallel , ” and the fact that information would be communicate d to Major Crash does not mean that the same information would necessarily be communicated to the U.S. Attorney’s Office through an IAD referral

. See Trial Tr. Dec. 9, 2022 p.m. at 24:18-25:13; id . at 26:1-7 (“Communication to Major Crash does not go to the federal government, and it is not reasonably likely to do so.”) ; Zabavsky Mot. at 17-18 (“[T]he government improperly conflated the major crash inve stigation with the notification to federal authorities made by the Internal Affairs Division.”)

.

8 Agent Della Camera testified that IAD referrals always g o to the same unit wit hin the U.S. Attorney’s Office for prosecutorial review and potential prosecution: the Public Corruption and Civil Rights Unit. Trial Tr. Nov. 7, 2022 p.m. at 99:9-13. A reasonable juror could infer, based on that testimony , that i t was reasonably likel y that a communication – an IAD referral – would be received by federal law enforcement officers – the prosecutors and agents in the Public Corruption and Civil Rights Unit, which are on the “federal side” of the U.S. Attorney ’s Offic e in the District of C olumbia. Id . at 98:22-99:1; see Fowler v. United States, 563 U.S. at 678.90 Mr. Sutton and Mr. Zabavsky’s argument directly contradicts the testimony from Agent Della Camera and Officer Folts, who explained that IAD and the Major Crash Unit work together to investigate collisions involving serious injuries and officer misconduct – matters th at are typically referred to the U.S. Attorney’s Office. Officer Folts explained that IAD and the Major Crash Unit are supposed to conduct “joint investigation[s]” when serious traffic crashes involve police misconduct. Trial Tr. Nov. 9, 2022 a.m. at 55:6- 3. Agent Della Camera similarly testified that the two units “divide up the tasks” and “share information” when investigating pursuits that result i n fatalities. Trial Tr. Nov. 7, 2022 p.m. at 21:11-23. While Officer Folts was at the hospital w ith Mr. Hylton- Brown, he called Agent Della Camera to give him with “as much information” as Officer Folts could provide. Trial Tr. Nov. 9, 2022 a.m. at 69:5-70:3. Officer Folts also sent IAD the draft report that Mr. Sutton wrote, which Agent Della Came ra relied on extensively when drafting his preliminary IAD report. Agent Della Camera eventually did , in fact, make a referral to the U.S. Attorney’s Office, and he transmitted related documents about his investigation to the U.S. Attorney’s Office. See Trial Tr. Nov. 7, 2022 p.m. at 99:19-100:11 (Della Camera testimony). The jury could thus infer that any information communicated to t he Major Crash Unit would also be communicated to IAD, and from there, was reasonably likely to eventually be communicated to the U.S. Attorney’s Office. See United States v. Johnson, 874 F.3d at 1081-82 (applying Fowler’s reasonable likelihood standard to Section 1512(b)(3) of fenses); United States v. Guadalupe, 402 F.3d at 413 (affirming Section 1512(b)(3) conviction where defendant “intended to influence an investigation which later became federal”).

5. Commission or Possible Commission of a Federal Offense Finally, th e government was required to prove that the information that could have been communicated “relat [e d] to the commission or possible commission of a Federal91 offense

. ” 18 U.S.C. § 1512(b)(3). The government’s evidence on this element was not overwhelming, but, drawing all inferences in favor of the government, it was sufficient. Mr. Sutton, Mr. Zabavsky, and the government all agree that the only evidence tending to establish this element was testimo ny from Agent Della Camera and Special Agent Ricardi. Agent Della Camera explained that he understood that the U.S. Attorney’s Office was conducting a federal civil rights investigation, and that he attended some witness interviews during that investigation. He also said that he referred this case to a unit “on the federal side” of the U.S. Attorney’s Office for review and potential prosecution. Special Agent Ricardi similarly testified that he understood that the U.S. Attorney’s Office was investigating a possible federal civil rights offense and that he in fact investigated this incident consistent with this impression

. Both witnesses explained that th ey believed this investigation concerned possible federal civil rights offenses, not only because they had personal knowledge of the investigation, but becaus e members of the prosecution team told them that this was a federal civil rights investigation. This evidence – Agent Della Camera ’s and Special Agent Ricardi’s testimony about their first -hand parti cipation in a federal civil rights investigation and the statements of others that informed the agents’ states of mind – was sufficient to withstand a mot ion for judgment of acquittal. Mr. Sutton and Mr. Zabavsky argue that the government failed to prov e that “the target offense of the obstruction count was a federal offense ,” Sutton Mot. at 25 , because the government “presented only hearsay testimony” from Special Agent Ricardi and Agent Della Camera that the U.S. Attorney’s Office was investigating potential federal civil rights violations. Sutton Reply at 28-29 ; see Trial Tr. Dec. 9, 2022 p.m. at 50:19-21 (argument of counsel for Mr. Sutton); Trial Tr . Nov. 21, 2022 p.m. at 12:21-13:2 (argument of counsel for Mr. Zabavsky). When Agent Ricardi was asked what kind of investigation this case was referred for, he92 explained: “We were told this was a civil rights investigation.” Trial Tr. Oct. 26, 2022 p.m . at 16:9-17; see id . at 16:18-21 (Agent Ricardi then explained that his supervisor, Special Agent Molnar, and Assistant U.S. Attorney Ahmed Baset informed him that this was a civil rights investigation). When asked about his understanding of the investig ation, Agent Della Camera

test ified that “according to AUSA Baset, it was a civil rights investigation.” Trial Tr. Nov. 7, 2022 p.m. at 100:23-101:1. As the Court explained during trial, the testimony of Agent Della Camera and Special Agent Ricardi about what they were told was not admitted for its tru th , but instead w as admitted to establish the agents’ motivations for their subsequent actions. Trial Tr. Dec. 6, 2022 p.m. at 48:24-49:2 (the Court concluded that “Ricardi’s testimony about the civil righ ts or possible civil rights investigation was not hearsay. He was in the meeting, and he took specific action as a result”). After each agent was told that the U.S. Attorney’s Offi ce was conducting a civil rights investigation, he in fact participated in that investigation. Agent Della Camera explained that he sat in on witness interviews, and Special Agent Ricardi testified about the “top to bottom investigation” he conducted into this incident. Trial Tr. Oct. 26, 2022 p.m. at
14:13-17. Because these statements from the prosecutor and from Sp ecial Agent Ricardi ’ s supervisor were admitted foundationally to explain why each agent took certain actions – and not for their truth – they are not hearsay. See F ED

. R. E VID . 801(c) ; United States v. Evans, 216 F.3d 80, 87 (D.C. Cir. 2000) (“[W]hen the ‘background’ being offered is the state of mind of the police, it is te chnically not hearsay at all.”); Jones v. United States, 934 F. Supp. 2d 284, 290 (D.D.C. 2013) (statements that were offered “to est ablish th at certain statements were made and their effect on the listener” were offered for a non -hearsay purpose). From t he admittedly limited evidence presented by the government about Special Agent Ricardi’s and Agent Della93 Camera’s state of mind and about thei r subsequent actions , a reasonable jury could conclude that Mr. Sutton and Mr. Zabavsky intended to hinder, obstruct, or prevent the communication of information related to the “possible commission of a federal offense.” 18 U.S.C. § 1512(b)(3).

D. The G overnment Has Met Its Burden as to Conspiracy to Obstruct Justice 1. Agreement and Int ent To prove conspiracy, the government was required to establish that Mr. Sutton and Mr. Zabavsky made an agreement to commit the crime of obstruction of ju stice, an d that both Mr. Sutton and Mr. Zabavsky intentionally joined in that agreement. “[D]ir ect evidence of agreement is not required, however; the jury may infer conspiratorial agreement from the circumstances and the defendant’s knowledge.” United S tates v. Moore, 651 F.3d 30, 97 (D.C. Cir. 2011) (citing United States v. Childress, 58 F.3d 693, 710 (D.C. Cir. 1995)) ; see United States v. Paitsel , Crim. No. 19-0156, 2023 WL 2139366, at *4 (D.D.C. Feb. 21, 2023) (“An agreement to join a conspiracy need not be explicit and may be inferred from the facts and circumstances of the case.” (citing Unit ed States v. Smith , 950 F.3d at 895)). The Court concludes that the government established sufficient evidence that the defendants intentionally made an agreement to co mmit the crime of obstruction of justice

. At trial, the government presented evidence documenting how Mr. Sutton and Mr. Zabavsky turned off their body worn cameras and had a private conversation before leaving the collision site and returning to the Fourth District. The jury also heard testimony about how Mr. Zabavsky followed Mr. Sutton’s lead as Mr. Sutton chased Mr. Hylton- Brown for several minutes, “paralleling” Mr. Sutton’s route through the neighborhood and explaining on the Ops radio c hannel th at they were “chasing” Mr. Hylton-Brown. Mr. Zabavsky’s body worn camera depicts a con versation he had with Officer Arnone, during which he made clear that Mr. Sutton,94 not Officer Arnone, would be responsible for writing the report that was later sent to the Major Crash Unit and IAD investigators. Both officers left the scene of the collision and returned to the Fourth District, where they went together to Captain Porter and provided him with a misleading account of what had happened. Mr. Sutton and Mr. Zabavsky suggest that evidence “of an ag reement to conspire” is “completely speculative.” Sutton Mot. at 25. Although the jury was not permitted to find Mr. Sutton and Mr. Zabavsky guilty based solely on “mere speculation,” the jury was entitled to “draw a vast range of reasonable inferences f rom [the] evidence.” United States v. Gaskins, 690 F.3d 569, 579 n.3 (D.C. Cir. 2012) (quoting United States v. Long, 905 F.2d 1572, 1576 (D.C. Cir. 1990)). The Court concludes that the government presented suff icient circumstantial and indirect evidence of an agreement to conspire, and that the jury was not asked to “ cross [] the line from permissible inference to improper speculation.” United States v. Teffera , 985 F.2d 1082, 1088 (D.C. Cir. 1993) ; see United S tates v. Gaskins , 690 F.3d at 579 n.3. The government’s evidence was also sufficient to establish that Mr. Sutton and Mr. Zabavsky had an agreement to violate the law. See United States v. Quinn, 403 F. Supp. 2d 57, 66 (D.D.C. 2005). The gov ernment i ntroduced ample evidence that Mr. Sutton and Mr. Zabavsky “knew their specific conduct . . . was illegal at the time they engaged or planned to engage in the conduct, and . . . that, by virtue of that knowledge of illegality, the defendants’
coop erative e fforts . . . constituted an agreement to c ommit an offense.” Id . at 67. Multiple witnesses testified that the crash site was not adequately preserved, and the government suggests that the jury can infer from this fact that Mr. Sutton and Mr. Zabavsky “handled the scene in a manner that would not trigger the kinds of notifications that otherwise would be triggered.” Trial Tr. Nov. 21, 2022 p.m. at 59:7-12. The Court agrees that this is a95 reasonable inference , particularly given the testimony from var ious officers about how Mr. Sutton and Mr. Zabavsky were knowledgeable about M PD policies and procedures, which provide guidance on preserving crash sites and making timely notification to the Major Crash Unit and IAD. Furthermore, when Mr. Sutto n and Mr. Zabavsky spoke to Captain Porter for the first time that evening together , n either Mr. Sutton nor Mr. Zabavsky provided Captain Porter with a thorough, truthful account of the events leading up to Mr. Hylton

- Brown’s death . The government present ed eviden ce that both Mr. Sutton and Mr. Zabavsky knew , based on their training and experience , that they should have told Capt ain Porter more than they did . A nd testimony from various other officers established MPD’s policies and practices about notifying superio r officers and other MPD departme nts when a pursuit occurs and results in life

threatening injuries

. Officer Totar o and Agent Della Camera both explained that MPD officers are taught that they can face criminal penalties for misconduct that occurs on the job , a fact that the jury was entitled to infer that Mr. Sutton and Mr. Zabavsky were aware of

. Based on this evid ence, the jury was permitted to infer an agreement between Mr. Sutton and Mr. Zabavsky, as well as their mutual intent to commit the crime of obstruct ion of justice

.

2. Overt Act The government was also required to prove that Mr. Sutton or Mr. Zabavsk y took some action with the purpose of carrying out the conspiracy. The jury unanimously found that the government proved beyond a reasonabl e doubt Overt Act Thirteen, w hich stated: At the Fourth District police station, Sutton and Zabavsky met with the W atch Commander, the senior

- most official in charge, and provided him with a misleading account of the incident: a. Sutton and Zabavsky portr ayed the incident as a brief attempted traffic stop from which a moped driver took off and was then hit by a vehicl e; b. Sutton minimized his conduct, saying that he did not engage in a vehicular pursuit;96 c. Zabavsky said that he did not know if Sutton h ad engaged in a vehicular pur suit; d. Zabavs ky 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 in juries. Jury Instructions at 37-38; see Verdict Form [Dkt. No. 426] at 2. The trial record establishes that it was reasonable for the jury to conclude that an overt act – specifically, Overt Act 13 – was taken in furtherance of the conspiracy.
A lth ough the government introduced ample evidence about Mr. Sutton and Mr. Zabavsky’s misl eading conduct, Captain Porter’s testimony alone is sufficient for their convictions to withstand a motion for judgment of acquittal. Captai n Porter explained that when Mr. Sutton and Mr. Zabavsky initially came to his office that night, they told him that they “might have been trying to stop” Mr. Hylton-Brown and they were trying to determine if this “[was] a chase or not.” See Trial Tr. Nov . 17, 2022 a.m. at 54:1-19 (Porter testimony). Mr. Sutton and Mr. Zabavsky made those representations to Captain Porter despite Mr. Sutton following Mr. Hylton-Brown the wrong way down a one-way street and Mr. Zabavsky having already said over the Ops cha nnel radio that they were “ch asing” Mr. Hylton-Brown. Mr. Zabavsky and Mr. Sutton did not mention Mr. Hylton-Brown’s head injury or his vomiting, leaving Captain Porter with the mistaken impression that this was an ordinary accident rather than a potentia lly fatal one . Captain Porter also testified that Mr. Zabavsky told him that Mr. Hylton-Brown was potentially intoxicated and slurring his words, but Mr. Zabavsky’s body worn camera footage does not show him ever speaking to Mr. Hylton- Brown . Mr. Sutton’s and Mr. Zabavsky’s represen tations gave Captain Porter the impres sion that Mr. Zabavsky was not involved in the incident, and that Mr. Zabavsky would have to review the body worn camera97 footage in order to determine whether a chase had occurred – again, despite the fact that Mr. Zab avsky had deemed this a chase while it was happening and had participated in the chase.
An honest conversation with Captain Porter – in which Mr. Sutton and Mr. Zabavsky disclosed the seriousness of Mr. Hylton-Brown’s injur ies and admitted their involvement in the pursuit – would likely ha ve resulted in immediate notification to IAD, who would have provided a full and accurate account of the investigation to the U.S. Attorney’s Office. But Mr. Sutton and Mr. Zabavsky chose to go a different route , and as a result, IAD was not notified about this incident until approximately 12:30 a.m. on October 24, 2020. The government thus presented more than sufficient evidence that Mr. Sutton and Mr. Zabavsky took an overt act in furtherance of the conspiracy during th eir conversation with Captain Porte r. Mr. Zabavsky raises similar arguments regarding the conspiracy conviction as he raised respecting the obstruction of justice conviction. Specifically, he argues that his truthful

s tatements to Captain Porter ma ke it impossible for a jury to have concluded that he took an overt act in furtherance of a conspiracy to obstruct justice by misleading Captain Porter. See June 5, 2023 Hearing Tr. at 31:3-32:7. He also suggests that he was not aware of all of the circu mstances surrounding the collision when he spoke to Captain Porter, and therefore no reasonable juror could have concluded that he knowingly provided Captain Porter with a
mi s leading acco unt of the incident. See id . at 33:3-1 7. For the same reasons the Court rejected Mr. Zabavsky’s argument regarding the misleading nature of his conduct , the Court rejects this argument as it relates to an overt act in furtherance of a conspiracy.98 V. CONCLUSION In October of 2020, a p olice officer engaged in a reckle ss car chase that cost a young man his life. The officer and his supervisor worked together in an attempt to prevent the truth about that young man’s death from coming to light. After a nine

- week trial, a jury convicted t he officer of second

- degree murde r and the officer and his supervisor of obstruction of justice and conspiring to obstruct justice. The Court has thoroughly reviewed the extensive evidence presented at trial and finds the evidence sufficient to withstan d a motion for judgment of acquitta l under Rule 29 of the Federal Rules of Criminal Procedure

. Accordingly, i t is hereby ORDERED that Terence D. Sutton Jr.’s Motion for Judgment of Acquittal [Dkt. No. 447] as to Count One, Count Two, and Count Three is DE NIED; and it is
FURTHER ORDERE D that Andrew Zabavsky’s Motion for Judgment of Acquittal [Dkt. No. 445] as to Count Two and Count Three is DENIED.
SO ORDERED.

PAUL L. FRIEDMAN United States District Judge DATE: December 6, 2023