UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

___________________________________ 

 ) 

UNITED STATES OF AMERICA ) 

 ) 

 v. ) 

 ) Criminal No. 21-0598 (PLF)

TERENCE SUTTON ) 

 and ) 

ANDREW ZABAVSKY, ) 

 ) 

 Defendants. ) 

___________________________________ ) 

OPINION AND ORDER

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

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

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

1

 The Court has reviewed the following documents and attachments thereto in 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

prior opinions in consideration of the pending motions: United States v. Sutton, 636 F. Supp. 3d 
2

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

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

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

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

helmet. Mr. Sutton tried to initiate a traffic stop of Mr. Hylton-Brown. When Mr. HyltonBrown refused to stop, Mr. Sutton followed him through the Kennedy Street neighborhood of 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

3d 57 (D.D.C. 2022) (“Daubert Op.”). 

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

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

at [Page:Line].
3

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

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

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

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

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

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

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

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

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

motions for judgment of acquittal are denied. 

TABLE OF CONTENTS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1. Obstruction of Justice ..................................................................................................... 44
4

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

V. CONCLUSION....................................................................................................................... 98
5

I. BACKGROUND

 

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

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

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

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

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

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

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

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

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

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

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

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

those opinions are quoted at length below. 

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

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

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

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

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

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

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

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

agent at MPD’s Internal Affairs Division (“IAD”) who investigated Mr. Sutton’s involvement in 
6

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

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

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

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

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

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

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

provides records management services to police departments. 

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

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

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

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

pursuit policies as those policies are taught to officers. 

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

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

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

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

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

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

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

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

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

with civilians, including “stops” and “frisks.” See Gov’t Ex. 401-G (MPD General Order on 
7

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

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

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

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

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

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

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

function). 

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

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

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

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

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

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

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

October 23, 2020; Jonathan Urrutia-Chavez, the driver of the Scion that struck Mr. 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 testified about Mr. Sutton’s commendation awards from MPD; MPD Senior 

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

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

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

Mr. Sutton; MPD Assistant Chief Wilfredo Manlapaz, who testified about Mr. Sutton’s 
8

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

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

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

Sean Ricardi. 

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

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

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

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

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

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

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

investigations. 

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

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

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

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

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

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

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

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

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

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

June 5, 2023. The Court also heard argument on May 17, 2023 on the defendants’ motions under 
9

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

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

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

oral presentations in resolving the Rule 29 motions. 

II. LEGAL STANDARD

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“viewing the evidence most favorably to the government and according the government the 
10

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

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

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

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

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

2019 WL 13110682, at *3. 

III. COUNT ONE: SECOND DEGREE MURDER

A. Elements of the Offense 

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

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

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

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

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

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

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

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

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

1. Malice Aforethought 

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

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

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

constitute malice aforethought even if there is not actual intent to kill or injure.’” July Mot. to 
11

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

As the Court has explained: 

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

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

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

malice aforethought because he subjectively knew that his conduct 

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

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

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

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

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

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

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

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

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

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

2006). . . . 

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

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

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

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

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

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

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

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

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

States, 584 A.2d at 39). 

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

 The Court has also explained that: 

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

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

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

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

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

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

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

whether the defendant was subjectively aware of the risk created by 

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

But whether there was a “gross deviation from a reasonable standard 
12

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

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

did the defendant grossly deviate from it? See id. 

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

Mot. in Limine Op. at 191-92. 

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

instructed the jury in this case: 

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

District of Columbia, defendant Terence Sutton, acting with 

conscious disregard of an extreme risk of death and serious bodily 

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

that is Mr. Sutton caused a traffic collision from which Mr. HyltonBrown sustained injuries and died. 

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

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

the Court explained that: 

The government must prove beyond a reasonable doubt that Mr. 

Sutton acted with a reckless and wanton disregard for human life 

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

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

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

callous and wanton disregard of human life and an extreme

indifference to the value of human life. 

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

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

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

2

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

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

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

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

relevant law. 
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 statute, “‘a defendant 

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

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

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

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

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

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

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

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

causal link between conduct and result is so attenuated that the 

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

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

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

intervening actions of a third party do not by themselves defeat 

proximate cause if those intervening actions were reasonably 

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

 

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

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

District of Columbia”). Accordingly, the government’s burden in this case was to establish that 
14

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

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

States, 571 U.S. at 210). 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

alter the applicable law. 

3

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

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

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

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

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

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

Judge McLeese’s majority opinion. See Fleming v. United States, 224 A.3d at 217. 
15

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

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

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

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

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

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

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

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

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

of vicarious liability and but-for causation interact in the “urban gun battle” context. Id. at 232.4 

4

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

depressing frequency, often with lethal results.

 

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

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

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

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

Moreover, to the extent that Judge Fisher and Judge Thompson expressed caution regarding the 
16

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Id. at 236. 

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

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

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

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

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

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

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

the facts at issue in this case. 
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. 

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

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

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

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

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

those terms as follows: 

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

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

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

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

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

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

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

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

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

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

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

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

unusual, abnormal, or extraordinary. 

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

There is evidence in this case that defendant Sutton did not 

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

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

Under such circumstances, defendant Sutton can be found to have 

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

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

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

defendant’s action and Mr. Hylton-Brown’s death. 
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 actions from the chain of 

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

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

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

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

B. Facts Established at Trial 

1. Events Preceding the Pursuit 

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

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

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

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

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

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

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

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

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

5

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

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

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

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

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

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

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

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

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

at 28. 
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 (AlShrawi testimony); Trial Tr. Nov. 2, 2022 p.m. at 44:6-12 (Tejera testimony). At that time, Mr.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

followed them, driving a marked police vehicle. Id. The CST vehicle, driven by Mr. Sutton, 
20

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

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

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

helmet at?” Id. at 55:21-24. Mr. Sutton initially drove past Mr. Hylton-Brown, but then did a Uturn and reapproached him. Id. at 57:14-58:15; Trial Tr. Nov. 2, 2022 p.m. at 49:1-50:6 (Tejera 

testimony). 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

suspected Mr. Hylton-Brown of committing a felony or violent crime. Trial Tr. Nov. 10, 2022 
21

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

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

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

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

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

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

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

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

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

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

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

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

something”); Trial Tr. Nov. 7, 2022 a.m. at 46:3-25 (Officer Tejera explained that Mr. HyltonBrown’s body language did not suggest he was concealing a weapon). When it became clear 

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

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

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

2. The Pursuit and the Collision 

 In their separate vehicles, Mr. Sutton and Mr. Zabavsky followed Mr. 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 radio 
22

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

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

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

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

 Seated in the front passenger seat, Officer Tejera was able to observe Mr. HyltonBrown riding on the moped while the MPD vehicles followed him, and Officer Tejera’s body 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

vehicle turned around, Officer Tejera lifted his arm and pointed, and as the CST vehicle drove 
23

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

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

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

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

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

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

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

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

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

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

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

moments before the collision, Mr. Sutton accelerated down the alleyway behind Mr. HyltonBrown, reaching a maximum speed of twenty-six miles-per-hour, while deactivating the CST 

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

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

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

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

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

at 61:7-16. 

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

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

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

end of the alleyway, which opened up onto the 700 block of Kennedy Street. The brake lights on 
24

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

his condition “appeared to worsen” as officers waited for the ambulance); Trial Tr. Nov. 10, 
25

2022 p.m. at 85:9-24 (Officer Al-Shrawi believed Mr. Hylton-Brown’s injuries were “lifethreatening”). Gonthel Tolliver, a paramedic at the District of Columbia Fire Department, 

testified that she arrived at the scene of the collision, and after quickly assessing Mr. HyltonBrown’s condition, she immediately put him in the ambulance to take him to the trauma center. 

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

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

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

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

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

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

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

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

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

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

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

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

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

Mr. Hylton-Brown was going to die). According to testimony and medical records, Mr. HyltonBrown died at the MedStar Washington Hospital Center in the early morning hours of 

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

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

(District of Columbia Office of the Chief Medical Examiner records). 
26

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

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

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

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

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

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

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

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

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

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

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

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

You are hereby issued this official reprimand for violating general 

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

pursuit shall be terminated when it becomes apparent that the 

vehicular pursuit could lead to unnecessary property damage, injury 

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

proximity to schools and hospitals and other locations with high 

pedestrian or vehicular activity.

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

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

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

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

Order 301.03. 
27

a. MPD Training and Testimony of Officer Carolyn Totaro

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

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

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

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

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

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

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

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

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

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

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

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

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

harm. It’s not a felony.”). 

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

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

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

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

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

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

the [MPD] is engaged in a vehicular pursuit, the overriding responsibilities are the protection of 
28

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

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

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

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

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

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

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

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

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

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

be professional. And being professional sometimes means cutting 

off the chase and turning away. . . . 

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

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

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

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

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

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

running from you or them fleeing from you. 

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

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

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

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

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

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

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

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

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

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

at 56:21-57-7. Officers are trained to “constantly cycle back and slow [themselves] down and 
29

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

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

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

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

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

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

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

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

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

officer was coming or see them in a consistent way.” Id. at 80:1-6.6

b. MPD General Order 301.03 on Vehicular Pursuits 

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

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

6

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

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

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

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

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

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

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

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

Jonathan Urrutia-Chavez, the man who was driving the Scion that collided with Mr. 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 vehicle training that officers receive centers on MPD General 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

helmet).

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

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

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

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

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

suspects who have committed offenses for which pursuits are not authorized). One of the 
31

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

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

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

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

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

progresses.” Id. 

c. Testimony of Robert Drago 

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

people on scooters, Mr. Drago explained that, “[t]he driver of the scooter obviously is going to 
32

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

injury.” Id. at 103:22-104:2. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1. Malice Aforethought 

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

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

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

second degree murder. 
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 officer should 

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

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

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

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

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

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

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

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

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

of the MPD vehicular pursuit policy. 

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

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

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

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

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

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

Mr. Hylton-Brown, who rode a moped without a helmet, at “a serious risk of death or serious 
34

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

evidence is necessarily insufficient to establish malice. He asserts that “[t]he government’s 
35

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The government has introduced evidence regarding certain MPD 

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

vehicular pursuits. The MPD general orders set internal policy for 

the Metropolitan Police Department. The general orders are not 

laws. Their provisions are administered exclusively by the 

Metropolitan Police Department. 

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

heard, and any testimony from any witnesses about the Metropolitan 

Police Department general order on vehicular pursuits. If you find 

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

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

factor in deciding whether the defendants had the necessary mental 

state or state of mind underlying the crimes charged. 
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. 

Jury Instructions at 17 (emphasis added). 

 Mr. Sutton is correct that evidence that he violated General Order 301.03 on 

Vehicular Pursuits is not sufficient, by itself, to prove that he acted with malice – as the jury was 

instructed. See Jury Instructions at 17. But Mr. Sutton is incorrect that the government’s only 

evidence of malice was his noncompliance with General Order 301.03. The government 

presented evidence about national policing standards through the expert testimony of Robert 

Drago and evidence about MPD vehicle skills training through the expert testimony of Carolyn 

Totaro. Although both Mr. Drago and Officer Totaro discussed General Order 301.03, their 

testimony provided additional evidence for the jury to consider when determining whether Mr. 

Sutton acted with malice. Mr. Drago, for example, discussed the weather and vehicle conditions 

that should factor into an officer’s decision to engage in a vehicular pursuit. Officer Totaro 

provided the jury with additional context for why officers must abide by the rules and regulations 

provided in General Order 301.03, and after watching Mr. Sutton’s body worn camera footage, 

she explained that she would instruct an officer in Mr. Sutton’s position to “let it go” rather than 

continue the pursuit. See Trial Tr. Nov. 15, 2022 p.m. at 57:13. Officer Totaro also testified at 

length about the principle of “due regard” and that MPD officers are trained to prioritize safety 

and accident avoidance. The jury was therefore able to rely on evidence independent of the 

violation of General Order 301.03 when deliberating. 

 The Court also disagrees with Mr. Sutton’s assertion that a judgment of acquittal 

is required because the government failed to present evidence that was “independent” of his 

conduct that potentially violated MPD General Orders. See Sutton Reply at 5. Mr. Sutton 
37

contends that the government’s evidence was necessarily insufficient to prove malice because 

“the government’s entire case was based on evidence and argument that Ofc. Sutton violated 

MPD General Orders,” which is insufficient on its own to establish guilt. See Sutton Mot. at 4; 

Sutton Reply at 4. As just discussed, the jury was able to find based on the government’s 

evidence that Mr. Sutton violated General Order 301.03. But whether Mr. Sutton violated this 

policy is not the central issue here. The government appropriately used the standards set forth in

General Order 301.03 – and evidence of the training that Mr. Sutton received about vehicular 

pursuits more broadly – to establish Mr. Sutton’s subjective awareness of the level of risk that 

attended his decision to follow a motorist who wore no helmet, in a city environment, at night, 

without the consistent use of emergency lights and sirens, and at relatively high speeds. See

June 5, 2023 Hearing Tr. at 58:22-59:7 (government counsel argued that the “MPD general 

orders tell the jury that [Mr. Sutton] was on notice [of] ways in which he was to behave”). The 

government also introduced substantial evidence about Mr. Sutton’s conduct – his actions, 

choices, and the circumstances in which he made those choices. Just because his conduct was 

“part and parcel of the chase” that could be considered a violation of MPD policy does not make 

such evidence insufficient as a matter of law to establish malice. See Sutton Reply at 5. 

 Relatedly, Mr. Sutton argues that the government’s evidence was insufficient to 

prove malice because the “rules” and “regulations” contained in General Order 301.03 are 

“discretionary” and “subjective” guidelines. Sutton Mot. at 16; Sutton Reply at 7-8; see Gov’t 

Ex. 401-D (MPD General Order 301.03 on Vehicular Pursuits) at 1-3. He maintains that this 

case is analogous to United States v. Wood, 207 F.3d 1222 (10th Cir. 2008). There, a medical 

doctor, Dr. Wood, was prosecuted for second degree murder following the death of a patient who 

had been “drowning” from “excess fluid in his lungs.” Id. at 1227. Believing the patient’s 
38

condition to be life-threatening, Dr. Wood administered potassium chloride to the patient in an 

amount and at a pace that exceeded hospital policies. Id. at 1230, 1232. The Tenth Circuit held 

that the district court erred by denying Dr. Wood’s motion for judgment of acquittal as to second 

degree murder. Id. at 1229. According to Mr. Sutton, the Tenth Circuit “concluded that the 

standard of care applicable to the circumstances allowed for a range of justifiable medical 

judgments,” and therefore it was inappropriate to send a charge of second degree murder to the 

jury. Sutton Reply at 7-8. Analogously, Mr. Sutton argues, where MPD general orders “set a 

policy for policing which is discretionary and subjective,” the government’s theory that Mr. 

Sutton “violated professional standards applicable to MPD officers” is insufficient to prove 

malice as a matter of law. Id. at 8. 

 The Tenth Circuit’s opinion in United States v. Wood, however, is inapposite. 

The court in Wood found the facts of that case insufficient to support an inference of malice 

because: 

Dr. Wood’s treatment of [the patient] involved a choice between 

several courses of action, some of which were more risky, but 

perhaps more efficacious, than others. A physician cannot be 

convicted of murder simply for adopting, in an emergency setting, a 

risky course of action intended to prolong life that, when carried out, 

fails to forestall or even hastens death. Instead, to permit a charge 

of murder with malice aforethought to go to the jury, that choice 

must be not only a gross deviation from a reasonable standard of 

care, but also extremely reckless and wanton. Dr. Wood’s goodfaith efforts at treatment simply do not rise to the “extreme” 

disregard for human life necessary to satisfy the malice aforethought 

standard. 

United States v. Wood, 207 F.3d at 1232 (internal citations omitted). 

 Unlike Dr. Wood, Mr. Sutton was not responding to a life-threatening emergency. 

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

crime or possessing a firearm; he was being stopped for a traffic violation, and pursued, at best, 
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 life.” Id. at 1233. Although Mr. Sutton may be 

correct that the general orders are “guidelines for officers subject always to the exercise of 

discretion,” see Sutton Mot. at 16, the fact that the MPD general orders require police officers to 

make judgment calls does not mean that the general orders may not be relevant evidence of Mr. 

Sutton’s subjective awareness of potential risks to human life. A person may have discretion to 

make a number of choices that constitute reasonable decisions consistent with the appropriate 

standard of care. It is only when a person’s choice “amount[s] to the extremely reckless and 

wanton disregard for life” that such an exercise of discretion can be said to “grossly deviate” 

from the standard of care. United States v. Wood, 207 F.3d at 1232-33. Unlike in United States 

v. Wood, it was reasonable for the jury in this case to conclude that Mr. Sutton’s conduct 

“display[ed] an extreme disregard for the wellbeing of others” based on the evidence the 

government presented. Id. at 1233. 

 To prove that Mr. Sutton acted with malice, the government was required to 

establish that Mr. Sutton acted with a “depraved heart,” meaning that he was “subjectively aware 

that his . . . conduct create[ed] an extreme risk of death or serious bodily injury.” Jennings v. 

United States, 993 A.2d at 1080 (quoting Comber v. United States, 584 A.2d at 39); see July 

Mot. to Compel Op. at *2. As the Court has explained: 

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

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

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

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

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

Comber v. United States, 584 A.2d at 39). 
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 disregard for human life that was extreme in nature, and that 

Mr. Sutton was aware that his conduct created an extreme risk of death or serious bodily 

injury.”). 

 The jury was tasked with determining whether Mr. Sutton’s familiarity with MPD

policies, his general training and experience, and his awareness that Mr. Hylton-Brown was not 

wearing a helmet made him subjectively aware that pursuing Mr. Hylton-Brown in the manner 

that he did would create an extreme risk of death or serious bodily injury and whether he acted 

with conscious disregard of that risk. It was not unreasonable for the jury to conclude, based on 

the evidence presented by the government, that Mr. Sutton was consciously, subjectively aware 

of the extreme risk to Mr. Hylton-Brown, and that he chose to disregard that risk when he chased 

Mr. Hylton-Brown down the alleyway in a manner inconsistent with MPD training and policies. 

Because the government was able to establish malice by showing that Mr. Sutton acted with 

conscious disregard of an extreme risk of death or serious bodily injury, whether the MPD 

General Order on Vehicular Pursuits provides a “definitive professional standard” is not 

dispositive. See Sutton Reply at 8. 

2. Causation 

 As Officer Tejera’s body worn camera footage depicted, Mr. Sutton attempted to 

initiate a traffic stop on Mr. Hylton-Brown, who did not comply. Mr. Sutton then pursued Mr. 

Hylton-Brown for at least two minutes. Mr. Sutton followed Mr. Hylton-Brown into an 

alleyway, where Mr. Sutton turned off his emergency lights and sirens; only seconds before the 

collision, Mr. Sutton accelerated. Absent Mr. Sutton’s decision to pursue, Mr. Hylton-Brown 
41

would not have died. See June 5, 2023 Hearing Tr. at 53:7-8 (government counsel arguing that, 

“[a]bsent that pursuit, Mr. Hylton-Brown would be here today”); Fleming v. United States, 224 

A.3d at 221 (“[T]he actual-cause requirement means that . . . if one subtracted the defendant’s 

actions from the chain of events, the decedent would not have been killed.”). These facts are 

sufficient for a reasonable jury to have concluded that Mr. Sutton was the but-for cause of Mr. 

Hylton-Brown’s death. See Jury Instructions at 29 (defining “but-for cause” and “proximate 

cause”).

 As to proximate cause, it was also reasonable for the jury to find that the 

government had proved beyond a reasonable doubt that Mr. Sutton’s conduct bore a close 

connection to Mr. Hylton-Brown’s death. The government argues, and the Court agrees, that the 

jurors saw evidence of proximate causation: they “saw and heard how in the final ten seconds of 

the chase, Defendant Sutton followed Hylton-Brown into a narrow alley, turned off his lights and 

sirens, and accelerated.” June 5, 2023 Hearing Tr. at 53:10-13. The government also presented 

testimony from Officer Totaro about how police must keep their lights and sirens on to alert 

other people, including other drivers, to the presence of police. Based on this evidence, and with 

all inferences being drawn in favor of the government, a reasonable jury could conclude that Mr. 

Hylton-Brown’s death was not a “mere fortuity.” Paroline v. United States, 572 U.S. at 445. 

 Evidence of Mr. Sutton’s training and experience also supports a finding of 

proximate cause. Mr. Sutton was familiar with Mr. Hylton-Brown and the Kennedy Street 

neighborhood. He had been trained to keep his emergency lights and sirens turned on whenever 

stopping or pursuing a suspect, to ensure that other drivers are aware of and can account for 

police activity. It was not unreasonable for the jury to conclude that it was “reasonably 

foreseeable” to Mr. Sutton that Mr. Hylton-Brown would be seriously injured as a result of being 
42

chased on a moped, without a helmet, through the city’s streets at nighttime – particularly given 

the lack of consistent police lights and sirens. See Fleming v. United States, 224 A.3d at 225. 

Notwithstanding evidence and testimony about how far Mr. Sutton’s vehicle was from the site of 

the collision, see Trial Tr. Dec. 9, 2022 p.m. at 40:10-18, the government’s evidence was

sufficient to establish both but-for and proximate causation. 

 Mr. Sutton argues that no reasonable juror could find beyond a reasonable doubt 

that he caused Mr. Hylton-Brown’s death because “the cause of the collision was the conduct of 

Hylton-Brown himself.” Sutton Mot. at 18-19; see Trial Tr. Nov. 21, 2022 p.m. at 25:11-13 

(defense counsel argued that Mr. Hylton-Brown’s death was caused by “an entirely voluntary act 

by Karon Hylton-Brown”). He suggests that Officer Tejera’s body worn camera footage shows 

Mr. Hylton-Brown “look to his left in the direction of the oncoming Scion” and “brake twice and 

turn to the left, at the last second turning a bit more to the left to avoid the oncoming Scion.” 

Sutton Reply at 12. This argument is one for the jury, not for the Court on a motion for 

judgment of acquittal. As the Court has explained, District of Columbia law allows for a person 

to be held “criminally responsible for causing a death even though the death would not have 

occurred but for the reasonably foreseeable intervening acts of another.” Fleming v. United 

States, 224 A.3d at 225. A jury certainly could have determined that Mr. Hylton-Brown’s own 

actions attenuated the connection between his death and Mr. Sutton’s conduct. But this 

conclusion is not required as a matter of law, and based on the evidence the government 

presented at trial, a reasonable juror could find that Mr. Sutton was both the actual and proximate 

cause of Mr. Hylton-Brown’s death. 

 Mr. Sutton also contends that the government’s framing of the evidence – that Mr. 

Sutton “flushed” Mr. Hylton-Brown into Kennedy Street, where he was struck and killed by 
43

another vehicle – was “not charged in the indictment” and therefore should not be permitted to 

support the verdict. Sutton Reply at 10; see Indictment ¶ 29 (alleging that Mr. Sutton “caused a 

traffic collision from which Hylton-Brown sustained injuries and died”). The Court is not 

persuaded. A reasonable jury could conclude that Mr. Sutton caused Mr. Hylton-Brown’s death 

by flushing him out of the alleyway. Furthermore, as the Court instructed the jury, “statements 

and arguments of the lawyers . . . are not evidence.” See Jury Instructions at 6. It is immaterial 

to the Court’s inquiry on a Rule 29 motion whether the government’s “flushing” rhetoric 

appeared in the indictment. As long as the government’s evidence was sufficient to establish 

both actual and proximate causation, the Court may not enter a judgment of acquittal merely 

because of the rhetoric used to describe Mr. Sutton’s conduct in the arguments of government 

counsel. 

 Finally, Mr. Sutton argues that the causation instruction given to the jury amounts 

to a directed verdict, as it instructed the jury to conclude that Mr. Hylton-Brown’s fatal injury

was “inflicted by a third party.” Sutton Reply at 13-15 (quoting Jury Instructions at 29). The 

jury instructions state, in relevant part, that “[t]here is evidence in this case that defendant Sutton 

did not personally inflict Mr. Hylton-Brown’s fatal injury and that Mr. Hylton-Brown’s fatal 

injury was inflicted by a third party.” Jury Instructions at 29. Mr. Sutton argues that this 

instruction “meant that the jury was to disregard Hylton-Brown’s conduct as the cause of his 

own death.” Sutton Reply at 14. As previously noted, “motions for an acquittal based on 

insufficient evidence cannot depend on jury instructions.” United States v. Khatallah, 41 F.4th 

at 626. This argument is not appropriately raised in Mr. Sutton’s motion for judgment of 

acquittal and is more appropriately addressed in Mr. Sutton’s Rule 33 motion. See id. (“[I]t does 

not matter for [a defendant’s] sufficiency of the evidence challenge if the jury was provided with 
44

an erroneous path to a guilty verdict . . . as long as a properly instructed jury had enough 

evidence for conviction.”). 

The government presented substantial evidence that Mr. Sutton was consciously 

aware of an extreme risk to human life when he chased Mr. Hylton-Brown, but that he 

disregarded that risk and continued a pursuit in violation of MPD trainings and policies. His 

motion for judgment of acquittal as to second degree murder is denied. 

IV. COUNT THREE AND COUNT TWO: 

OBSTRUCTION OF JUSTICE AND CONSPIRACY TO OBSTRUCT JUSTICE

A. Elements of the Offenses

1. Obstruction of Justice 

The obstruction of justice statute makes it a crime to “engage[] in misleading 

conduct toward another person, with intent to . . . hinder, delay, or prevent the communication to 

a law enforcement officer . . . of the United States of information relating to the commission or 

possible commission of a Federal offense.” 18 U.S.C. § 1512(b)(3). 

The Court explained to the jury that the government must prove the following

elements of obstruction of justice beyond a reasonable doubt:

1. The defendant engaged in misleading conduct, or attempted to 

do so, toward another person – in this case, other officials of the 

Metropolitan Police Department; and 

2. The defendant acted knowingly; and 

3. The defendant acted with the specific intent to hinder, delay or 

prevent the communication of information; and 

4. It was reasonably likely that the information would have been 

communicated to a law enforcement officer of the United States; 

and 

5. That the information related to the commission or the possible 

commission of a federal offense. 

Jury Instructions at 30. The Court further instructed the jury that: 

“Misleading conduct” includes 
45

(1) knowingly making a false statement; 

(2) intentionally omitting information from a statement and 

thereby causing a portion of such statement to be misleading; 

(3) intentionally concealing a material fact, and thereby creating a 

false impression by such statement; 

(4) with the intent to mislead, knowingly submitting or inviting 

reliance on a writing that is false; or 

(5) knowingly using a trick, scheme, or device with intent to 

mislead. 

“Specific intent” means that the defendant did so voluntarily, on 

purpose, and not by mistake or accident. 

Jury Instructions at 30-31. Finally, the Court explained: 

Because the statute explicitly refers to the possible commission of a 

federal offense, the government need not prove that any person was 

actually guilty of any underlying federal offense. 

Jury Instructions at 31.7 

 The first three elements of the obstruction of justice offense are relatively 

straightforward. “Misleading conduct” is defined by statute. See 18 U.S.C. § 1515(a)(3). 

7

 The Court also instructed the jury that “the government further alleges that the 

defendants aided and abetted each other in committing Obstruction of Justice,” and that both Mr. 

Sutton and Mr. Zabavsky could be found guilty of that offense if they “intentionally 

participate[d] in the commission of [the] crime” even if they did not “personally commit[] each 

of the acts that make up the crime.” Jury Instructions at 32. The Court instructed that, for a 

conviction based on aiding and abetting, the jury must find that either Mr. Sutton or Mr. 

Zabavsky 

. . . knowingly associated himself with the commission of the crime, 

that he participated in the crime as something he wished to bring 

about, and that he intended by his actions to make it succeed. Some 

affirmative conduct by the defendant in planning or carrying out the 

crime is necessary. Mere physical presence by a defendant at the 

place and time the crime is committed is not by itself sufficient to 

establish his/her guilt. However, mere physical presence is enough 

if it is intended to help in the commission of the crime. It is not 

necessary that you find that the defendant was actually present while 

the crime was committed.

Jury Instructions at 32. 
46

Section 1512(b)(3)’s knowledge element requires that a person knows that his or her conduct 

toward another person is misleading. See United States v. Brown, 934 F.3d 1278, 1301 (11th 

Cir. 2019) (affirming denial of motion for judgment of acquittal where “a reasonable jury could 

have found that [the defendant’s] statements and omissions were knowingly misleading”); 

United States v. Carson, 560 F.3d 566, 580 (6th Cir. 2009) (“[T]o obtain a conviction for 

obstruction of justice under 18 U.S.C. § 1512(b)(3), the government must prove that the 

defendant . . . knowingly and willfully engaged in misleading conduct toward another person.”). 

And Section 1512(b)(3)’s specific intent element requires the government to prove that a person 

had the purpose of hindering, delaying, or preventing some communication of information to 

federal law enforcement. See, e.g., United States v. Hertular, 562 F.3d 433, 443-44 (2d Cir. 

2009) (“On this record, a reasonable factfinder could easily have concluded that . . . [the 

defendant’s] specific intent was to hinder or prevent not simply the filing of an indictment but 

any communication to or among federal law enforcement officials that could lead to his 

indictment.”); United States v. Brown, 934 F.3d at 1300-01 (a reasonable jury could have found 

that the defendant intended to hinder federal law enforcement officers where the evidence 

established that he provided misleading statements during an interview with federal 

investigators). 

 Mr. Sutton and Mr. Zabavsky’s primary focus is on the fourth and fifth elements 

of obstruction of justice. The fourth element requires that a federal law enforcement officer be 

the potential recipient of some communication, and the fifth element requires that the 

information potentially communicated relates to the commission or possible commission of a 

federal offense. The defendants refer to these elements as the “federal nexus,” which the 

government must prove for a person’s conduct to constitute federal obstruction of justice. 
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)”). The fourth element is satisfied where it is “reasonably likely under the 

circumstances that . . . at least one of the relevant communications would have been made to a 

federal officer.” Fowler v. United States, 563 U.S. at 678; see United States v. Snyder, 865 F.3d 

490, 496 (7th Cir. 2017) (“[Section] 1512 requires showing a reasonable likelihood” of a 

communication to “a federal officer, not a state or local officer”); United States v. Ring, 628 F. 

Supp. 2d 195, 219 (D.D.C. 2009) (“[T]he government need only show that ‘the misleading 

information’ was ‘likely to be transferred to a federal agent.’”) (quoting United States v. Veal, 

153 F.3d 1233, 1251 (11th Cir. 1998), rev’d on other grounds by Fowler v. United States, 563 

U.S. at 678). See also United States v. Ronda, 455 F.3d 1273, 1288 (11th Cir. 2006) 

(Section 1512(b)(3) “criminalizes the transfer of misleading information” (quoting United States 

v. Veal, 153 F.3d at 1252)). 

 The fifth element of obstruction of justice requires that the information at issue – 

the communication of which a defendant intends to hinder, prevent, or delay – relates to some 

possible federal offense. See 18 U.S.C. § 1512(b)(3). Section 1512(b)(3) “does not require that 

a defendant know the federal nature of the crime” so long as the “misleading information . . . 

actually relates to a potential federal offense.” United States v. Veal, 153 F.3d at 1252; see

United States v. Chafin, 808 F.3d 1263, 1273-74 (11th Cir. 2015). The statute “applies only to 
48

obstructive behavior that the defendant knows could impede an investigation into conduct that 

could constitute a federal crime at the time of its commission,” though it “does not require that 

the defendant specifically know that the underlying conduct could constitute a federal offense.” 

United States v. Bailey, 405 F.3d 102, 109 (1st Cir. 2005); id. at 109 n.3; see United States v. 

Snyder, 865 F.3d at 494 (“The statute does not require proof that the defendant knew the federal 

status of the officer or underlying proceeding.”). See also United States v. Rodriguez-Marrero, 

390 F.3d 1, 13 (1st Cir. 2004) (it is “irrelevant” for the purpose of Section 1512 that a person 

“did not realize that he was helping to conceal a federal crime”); United States v. Hawkins, 185 

F. Supp. 3d 114, 124-25 (D.D.C. 2016) (enumerating the elements of obstruction of justice). 

 During litigation of the pretrial motions in this case, this Court held that the fifth 

element of Section 1512(b)(3) required the government to “prove ‘the possible existence of a 

federal crime and a defendant’s intention to thwart an inquiry into that crime.’” Bill of 

Particulars Op. at *8 (quoting United States v. Ring, 628 F. Supp. 2d at 200); see id. (“Thwarting 

an investigation before it can begin is sufficient.”). The Court further explained that “the 

prosecution is not conditioned on a federal civil rights investigation or federal civil rights 

prosecution ever coming into existence.” Mot. to Dismiss Oral Ruling at 28:20-23; see April 

Mot. to Compel Op. at *7 (“By its own terms, the statute criminalizes obstructing the 

transmission of information about an actual or potential federal offense.”). 

 Thus, the fifth element of obstruction of justice – commission or possible 

commission of a federal offense – does not require that the government prove that a federal 

offense actually has occurred, nor does it require that a federal offense has been in fact 

investigated or charged. As the Court has explained, the obstruction of justice statute “does not 

require that any federal civil rights investigation actually have occurred, let alone that the 
49

existence of one be pled in the indictment. Rather, the government need only prove ‘the possible 

existence of a federal crime.’” Bill of Particulars Op. at *8 (quoting United States v. Ring, 628 

F. Supp. 2d at 220); see April Mot. to Compel Op. at *7; Mot. to Dismiss Oral Ruling 

at 26:21-27:1. 

 This Court’s prior rulings are consistent with decisions from courts of appeals. 

When it comes to the possible federal offense underlying a Section 1512(b)(3) charge, the First 

Circuit has explained that “the dispositive issue is the federal character of the investigation, not 

guilty verdicts on any federal offenses that may be charged.” United States v. Baldyga, 233 

F.3d 674, 681 (1st Cir. 2000). The Third Circuit has held that guilt under Section 1512(b)(3) 

“does not depend on the existence or imminency of a federal investigation but rather on the 

possible existence of a federal crime.” United States v. Guadalupe, 402 F.3d 409, 411 (3d Cir. 

2005). The Fourth Circuit has rejected the argument that the government failed to satisfy the 

federal offense element of Section 1512 where a person’s underlying offense was ultimately 

prosecuted as a state crime, concluding that “the fact that the underlying crime could have been 

prosecuted under both state and federal law” did not preclude prosecution under Section 1512. 

United States v. Ramos-Cruz, 667 F.3d 487, 498 (4th Cir. 2012). And the Second Circuit has 

similarly rejected a defendant’s attack on his Section 1512(b)(3) conviction because his ultimate 

conspiracy prosecution was “a classic state case consisting of classic state charges.” United 

States v. Veliz, 800 F.3d 63, 74 (2d Cir. 2015). Where there is a possible federal offense, it is 

irrelevant under Section 1512(b)(3) that the crimes could also be pursued by state prosecutors or 

that the underlying offense is never prosecuted at all. Id. 
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 the 

person “knowingly participate[ed] in the conspiracy with the intent to commit the offense”; and 

(3) that at least one member of the conspiracy has committed “at least one overt act . . . in 

furtherance of the conspiracy.” United States v. Smith, 950 F.3d 893, 895 (D.C. Cir. 2020) 

(quoting United States v. Gatling, 96 F.3d 1511, 1518 (D.C. Cir. 1996)); see Ocasio v. United 

States, 578 U.S. 282, 287 (2016) (“[T]he fundamental characteristic of a conspiracy is a joint 

commitment to an ‘endeavor which, if completed, would satisfy all of the elements of [the 

underlying substantive] criminal offense.’”) (quoting Salinas v. United States, 522 U.S. 52, 65 

(1997)). An agreement may be “inferred from the facts and circumstances of the case.” Iannelli 

v. United States, 420 U.S. 770, 777 n.10 (1975). 

 The Court gave the following jury instructions explaining the elements of 

conspiracy: 

1. That Terence Sutton and Andrew Zabavsky agreed to commit 

the crime of Obstruction of Justice. . . . 

2. That Terence Sutton and Andrew Zabavsky intentionally joined 

in that agreement. . . . [and] 

3. That at least one of the defendants did something for the purpose 

of carrying out the conspiracy. This something is referred to as 

an overt act.

Jury Instructions at 33-34. The Court provided the jury with an appendix of alleged overt acts, 

see id. at 36-38, and instructed the jury that it had to unanimously agree on one or more specific 

overt acts that were committed. Id. at 34. The jury unanimously found that the government 

proved beyond a reasonable doubt Overt Act Thirteen, which stated: 
51

At the Fourth District police station, Sutton and Zabavsky met with 

the Watch Commander, the senior-most official in charge, and 

provided him with a misleading account of the incident: 

a. Sutton and Zabavsky portrayed the incident as a brief 

attempted traffic stop from which a moped driver took off and 

was then hit by a vehicle; 

b. Sutton minimized his conduct, saying that he did not engage 

in a vehicular pursuit; 

c. Zabavsky said that he did not know if Sutton had engaged in a 

vehicular pursuit; 

d. Zabavsky withheld information concerning his own 

involvement in the pursuit; 

e. Zabavsky said that Hylton-Brown had been drunk and had 

been slurring his words; and, 

f. Sutton and Zabavsky withheld all information about HyltonBrown’s serious injuries. 

Jury Instructions at 37-38; see Verdict Form [Dkt. No. 426] at 2. 

B. Facts Established at Trial 

1. The Pursuit 

 In addition to the facts described above, the government produced ample evidence 

at trial in support of the obstruction of justice and conspiracy counts as to both Mr. Sutton and 

Mr. Zabavsky. 

 Testimony from Officer Tejera established that Mr. Zabavsky was involved in the 

attempted traffic stop and pursuit of Mr. Hylton-Brown from the earliest stages of the chase. 

Officer Tejera explained that: “He [Mr. Zabavsky] was with us when we were following Karon. 

He was – for all I know, he was part of the whole incident.” Trial Tr. Nov. 2, 2022 p.m. 

at 66:19-68:1. Similarly, Captain Porter explained that he believed, based on his conversations 

with Mr. Zabavsky later that night, that Mr. Zabavsky was “paralleling the chase.” Trial Tr. 

Nov. 17, 2022 a.m. at 83:11-84:7; id. at 86:4-13 (Captain Porter believed Mr. Zabavsky was 

“trying to intercept the moped from a different direction”). Captain Porter also explained that he 
52

concluded definitively that Mr. Sutton was engaged in a chase after reviewing Officer Tejera’s 

body worn camera footage and observing that Mr. Sutton followed Mr. Hylton-Brown the wrong 

way down a one-way street. Trial Tr. Nov. 17, 2022 a.m. at 79:14-80:15. 

 The government also introduced evidence about MPD’s policies for using the 

shared police radio. Witnesses explained that all officers have access to the general Fourth 

District radio channel, also called the “main” channel. See Trial Tr. Oct. 26, 2022 p.m. 

at 95:14-99:17 (Ricardi testimony); Trial Tr. Nov. 15, 2022 a.m. at 87:6-88:17 (Totaro 

testimony). Officer Totaro explained that part of the reason why officers must broadcast their 

pursuits on the main channel is so that supervising officers can order that a pursuit be terminated 

if the pursuit is too dangerous or otherwise violates MPD policies. Id. Members of CST also 

have access to a separate radio channel, just for members of that team, which witnesses referred 

to as the “Ops” channel. Id.; see Gov’t Ex. 221-A (Ops channel radio recording); Gov’t 

Ex. 221-B (Fourth District main channel radio recording). Pursuant to MPD General 

Order 301.03 on Vehicular Pursuits, officers engaged in vehicular pursuits are instructed to 

broadcast that information over the main channel, so that everyone in the district can be aware of 

the pursuit’s location. See Gov’t Ex. 401-D (MPD General Order 301.03 on Vehicular Pursuits)

at 4; Trial Tr. Nov. 15, 2022 p.m. at 61:17-62:22 (Officer Totaro opined that using the Ops 

channel instead of the main channel to broadcast information about an ongoing pursuit violated 

General Order 301.03). 

 The government’s evidence indicated that Mr. Sutton and Mr. Zabavsky only 

communicated about the chase on the Ops channel, not on the main channel. See Gov’t 

Ex. 221-A (Ops channel radio recording); Trial Tr. Oct. 26, 2022 p.m. at 95:14-99:17 (Ricardi 

testimony); id. at 100:10-21. On the Ops channel recording, Mr. Zabavsky can be heard saying 
53

“We’re chasing Karon on a scooter right now.” Gov’t Ex. 221-A. Mr. Sutton’s voice can also 

be heard on the Ops channel recording, as he broadcasted his location at various intervals during 

the pursuit. Id. The last location Mr. Sutton announced over the Ops channel radio before the 

collision was “Eighth and Jefferson.” Id.; see Trial Tr. Oct. 26, 2022 p.m. at 107:3-108:7 

(Ricardi testimony). The government’s evidence suggested that at no time prior to the collision 

did any of the four officers in the CST vehicle use the main channel to broadcast information 

about their interaction with or pursuit of Mr. Hylton-Brown. See Trial Tr. Nov. 17, 2022 a.m. 

at 47:23-49:19 (Captain Porter testified that he first heard about this incident over the main radio 

channel a little after 10:00 p.m. the night of October 23, 2020); Trial Tr. Nov. 11, 2022 p.m. 

at 68:11-69:6 (Officer Al-Shrawi testified that Mr. Sutton used the Ops channel, not the main 

channel, to broadcast information about the pursuit and the CST vehicle’s location); see also

Gov’t Ex. 221-E (transcript of the full recording of the main radio channel). 

2. The Crash Site 

 The Court admitted into evidence body worn camera footage from several officers 

that captured the scene in the immediate aftermath of the collision. Officer Tejera’s body worn 

camera, for example, began recording audio seconds after the collision occurred. See Gov’t 

Ex. 202 (Tejera body worn camera). As the officers – including Mr. Sutton and Mr. Zabavsky – 

approached the crash site where Mr. Hylton-Brown and the moped were lying in the street, one 

of the officers said, “Holy shit.” Officer Tejera approached Mr. Hylton-Brown and exclaimed, 

“What the fuck, man?” Another officer asked Mr. Hylton-Brown, “Hey, are you good?” to 

which Officer Tejera responded, “No, he’s bleeding heavy.” Additional officers arrived at the 

scene and parked their vehicles up and down the street, activating the emergency lights and 
54

preventing other traffic from coming through as they waited for an ambulance. See Gov’t 

Ex. 202. 

 Body worn camera footage and testimony at trial indicated that Mr. Sutton and 

Mr. Zabavsky were aware of the serious nature of Mr. Hylton-Brown’s condition. Officer 

Novick and Officer Al-Shrawi, who had been seated in the backseat of the CST vehicle, 

crouched near Mr. Hylton-Brown and tried to stop his bleeding. See Gov’t Ex. 201 (Novick 

body worn camera); Gov’t Ex. 203 (Al-Shrawi body worn camera); Trial Tr. Nov. 14, 2022 p.m. 

at 43:3-8 (Novick testimony). Officer Novick testified that at some point while he and Officer 

Al-Shrawi rendered aid to Mr. Hylton-Brown, Mr. Sutton stood about a foot away. Trial Tr. 

Nov. 14, 2022 p.m. at 45:10-25. Officer Novick also testified that Mr. Zabavsky was nearby Mr. 

Hylton-Brown – standing only a foot away at times – as officers rendered aid. Id. at 47:1-20; id. 

at 49:1 (Officer Novick testified that “Lieutenant Zabavsky kind of panned” across the scene 

where Mr. Hylton-Brown was); Trial Tr. Nov. 10, 2022 p.m. at 96:16-98:8 (Officer Al-Shrawi 

testified that while he and Officer Novick attempted to stop Mr. Hylton-Brown’s bleeding, Mr.

Zabavsky was present at the scene); see Gov’t Ex. 201 (Novick body worn camera) (depicting 

Mr. Zabavsky standing between two and four feet away from Mr. Hylton-Brown’s body). 

 Mr. Sutton’s body worn camera shows that Mr. Sutton exited his vehicle and 

called out, “Karon!” as he walked over to where Mr. Hylton-Brown lay in the street. See Gov’t 

Ex. 200 (Sutton body worn camera). Mr. Zabavsky’s body worn camera depicts Officer Novick 

and Officer Al-Shrawi providing first aid to Mr. Hylton-Brown, rolling him on his side and 

applying pressure to his head wound in an attempt to stop the bleeding. Gov’t Ex. 204 

(Zabavsky body worn camera). Mr. Zabavsky’s body worn camera also captured audio and 

video of Mr. Hylton-Brown beginning to vomit. Id. 
55

 The government’s evidence demonstrated that multiple officers assumed that Mr. 

Zabavsky would be in charge of managing the crash scene. Officer Tejera explained that Mr.

Zabavsky, a lieutenant, was the highest ranking official on the scene, and therefore Officer 

Tejera assumed that Mr. Zabavsky was in charge of the scene. Trial Tr. Nov. 2, 2022 p.m. 

at 71:17-24. Similarly, Officer Arnone believed that Mr. Zabavsky was the only senior MPD 

official at the crash site, and accordingly, that he would be the person ultimately responsible for 

managing the scene, ensuring the preservation of evidence, and notifying the Major Crash Unit 

and the Internal Affairs Division. Trial Tr. Nov. 8, 2022 p.m. at 53:21-54:14. Captain Porter 

explained that a superior officer on the scene of a collision such as this – where a person has 

serious head injuries – would be expected to “call the watch commander and basically brief them 

on what steps they have done so far and what information they are waiting on from the officer at 

the hospital to decide if they are going to notify Major Crash.” Trial Tr. Nov. 17, 2022 a.m. 

at 68:22-69:10. Captain Porter testified that he was “confident that a lieutenant would make that 

notification” if a lieutenant were on the scene. Id. at 69:11-18; see id. at 44:17-20 (Captain 

Porter testified that Mr. Zabavsky “knew general orders very well”).

 Other witnesses testified, however, that while at the crash site, Mr. Zabavsky did 

not notify senior MPD officials or the Major Crash Unit about the serious nature of Mr. HyltonBrown’s injuries. See Trial Tr. Nov. 14, 2022 p.m. at 63:12-14 (Officer Novick did not hear 

anyone call the Major Crash Unit); Trial Tr. Oct. 28, 2022 p.m. at 7:2-15 (Special Agent Ricardi, 

who reviewed radio runs during his investigation, believed that there was no notification to the 

Major Crash Unit made by officers at the crash site).

 Body worn camera footage shows that as Mr. Hylton-Brown was being lifted into 

the ambulance, a small crowd of people began to congregate near the mouth of the alleyway. 
56

See Gov’t Ex. 200 (Sutton body worn camera); Gov’t Ex. 204 (Zabavsky body worn camera). 

Police remained on the scene, securing the crash site with police tape and trying to ensure that 

the people who had arrived remained calm. Mr. Zabavsky and Mr. Sutton took photos of Mr. 

Hylton-Brown’s moped, and Mr. Zabavsky spoke with Officer Arnone, ensuring that officers 

had photos of the other vehicle involved in the collision – the Scion. See Gov’t Ex. 200 (Sutton 

body worn camera); Gov’t Ex. 204 (Zabavsky body worn camera). Officer Arnone told Mr. 

Zabavsky, “I’m assuming I’m the one who’s going to be doing the report,” to which Mr. 

Zabavsky replied, “I think Sutton’s going to do it.” Gov’t Ex. 204 (Zabavsky body worn 

camera); see Trial Tr. Nov. 8, 2022 p.m. at 54:15-22, 83:17-23 (Arnone testimony). Mr. 

Zabavsky, while standing with Officer Arnone and Mr. Sutton, told Officer Arnone to stay at the 

scene and wait for the tow truck while he and Mr. Sutton went back to the Fourth District police 

station. Mr. Sutton and Mr. Zabavsky then walked away from the group of other officers 

standing at the mouth of the alleyway and both turned off their body worn cameras. See Gov’t 

Ex. 200 (Sutton body worn camera); Gov’t Ex. 204 (Zabavsky body worn camera); Trial Tr. 

Nov. 8, 2022 p.m. at 98:15-16 (Officer Arnone testified: “I do remember seeing Lieutenant 

Zabavsky and Officer Sutton talking”); Trial Tr. Nov. 2, 2022 p.m. at 99:8-13 (Officer Tejera 

testified that he observed Officer Sutton and Lieutenant Zabavsky standing together at the 

collision scene, though he never learned what transpired between them at that time). 

 Mr. Sutton, Mr. Zabavsky, and the other CST officers then left the scene to head 

back to the Fourth District police station. Mr. Sutton got back behind the wheel of the CST 

vehicle and drove away. Officer Arnone, who remained at the scene waiting for the tow truck, 

testified that she heard “crunching” as Mr. Sutton left the scene because Mr. Sutton “ran over 

some of the evidence” – a part of Mr. Hylton-Brown’s moped. Trial Tr. Nov. 8, 2022 p.m. at 
57

99:11-16; see Trial Tr. Nov. 10, 2022 p.m. at 102:1-2 (Officer Al-Shrawi observed “the vehicle 

running, going over the part [of] the scooter”). The government offered body worn camera 

footage depicting Mr. Sutton driving the CST vehicle away from the collision site and capturing 

the “crunching” noise that Officer Arnone testified about hearing. See Gov’t Ex. 202 (Officer 

Tejera body worn camera footage and audio); Gov’t Ex. 201 (Officer Novick’s body worn 

camera footage and audio). 

3. The Fourth District Police Station

 Much of the government’s case in chief focused on the events that occurred after

Mr. Sutton, Mr. Zabavsky, and the other CST officers arrived back at the Fourth District police 

station following the collision. Once there, Mr. Sutton and Mr. Zabavsky spoke with Captain 

Porter, their superior officer, who was on duty as watch commander that night. In addition, Mr. 

Sutton drafted a “PD-10” traffic crash report, in which he described the events leading up to the 

collision. See Gov’t Ex. 404-F (IAD’s preliminary investigation packet, which contained a copy 

of Mr. Sutton’s draft traffic crash report). The government also introduced evidence that Mr. 

Sutton was “pretty experienced” and knowledgeable about MPD protocols and procedures, see

Trial Tr. Nov. 10, 2022 p.m. at 31:19-24 (Al-Shrawi testimony), and that Mr. Zabavsky had “a 

lot of knowledge when it comes to police work.” Trial Tr. Nov. 17, 2022 a.m. at 42:23-24 

(Porter testimony).

a. Captain Porter 

 On October 23, 2020, Captain Franklin Porter was on duty as the watch 

commander of the Fourth District. Trial Tr. Nov. 17, 2022 a.m. at 22:17-23 (Porter testimony). 

In addition to a captain or lieutenant’s ordinary responsibilities, high ranking officers also rotate 
58

through shifts as watch commander, during which they are responsible for supervising the entire 

Fourth District – monitoring the district’s radio channel and responding to officers and citizens 

who call in. Id. at 26:7-27:4. Captain Porter explained that the watch commander is responsible 

for notifying higher-ups in MPD when certain circumstances arise – for instance, if there is a 

shooting. Id. at 29:9-22. The watch commander is also expected to be “on top of just about 

everything that goes on,” as everything that happens while officers are on patrol is expected to 

“come through” to the watch commander on duty. Id. at 26:18-23; id. at 28:24-29:8 (“The watch 

commander’s phone constantly rings.”); Id. at 43:4-14 (Captain Porter testified that, in his 

experience working with Mr. Zabavsky, Mr. Zabavsky “would call the watch commander” “all 

the time . . . [w]henever there’s issues that they are dealing with, he would definitely call the 

watch commander for any advice or for just giving me information that I needed”). Captain 

Porter explained how Mr. Zabavsky himself had served as a watch commander on multiple other 

occasions. Id. at 43:15-44:3 (Captain Porter estimated that Mr. Zabavsky had served as the 

watch commander “between fifty to a hundred times”). Captain Porter further explained that he 

had a “personal and professional” relationship with Mr. Zabavsky, that he relied on Mr. 

Zabavsky more than he relied on other lieutenants, and that the two men had worked their way 

up the MPD chain of command together. Id. at 41:9-42:21. Between 10:00 p.m. and 12:00 a.m. 

on the evening of the collision, neither Mr. Zabavsky nor Mr. Sutton called Captain Porter. Id. 

at 51:5-12. 

 One of the watch commander’s responsibilities is monitoring MPD officers that 

are engaged in vehicular pursuits. Trial Tr. Nov. 17, 2022 a.m. at 30:17-21 (Porter testimony). 

When a vehicular pursuit occurs, a preliminary investigation must be conducted; MPD officials 

respond to the scene, gather as much evidence about the pursuit as they can, and then forward 
59

that information to the Internal Affairs Division (“IAD”) for review. Id. at 33:16-34:9. IAD 

reviews the preliminary investigation and determines whether IAD will handle any subsequent 

investigation into an officer’s violation of MPD policy, or whether supervisors in the district 

where the chase occurred can handle any follow up investigation. Id. at 34:12-35:7. When MPD 

officers are involved in “serious misconduct that result[s] in a death,” IAD may respond to a 

scene right away to begin collecting information, rather than waiting to receive a preliminary 

investigation from a district supervisor. Id. at 35:13-36:14. 

 Around 10:00 p.m. on October 23, 2020, Captain Porter heard over the Fourth 

District’s main radio channel that “someone said we had a moped that just got struck on 

Kennedy Street.” Trial Tr. Nov. 17, 2022 a.m. at 48:1-19 (Porter testimony). This notification 

gave Captain Porter the impression that “it was just a regular accident with injuries,” like MPD 

officers “hear almost every day.” Id. When a crash involves serious injuries, Captain Porter

would expect the supervisor on the scene – the sergeant, lieutenant, or highest-ranking officer 

present – to notify the watch commander of those injuries. Id. at 49:20-50:8. Captain Porter 

explained that, while working as watch commander, he would want to hear about instances of 

serious bodily injury over the district’s main radio channel from the supervisor on the scene. If 

someone’s injuries might result in death, Captain Porter testified, he would “have the supervisor 

on the scene give [him] a call” to determine what next steps must be taken, including whether to 

contact the Major Crash Unit and IAD. Id. at 39:11-40:22. Captain Porter also explained that he 

would want to hear about a vehicular pursuit over the main radio channel. See id. at 66:11-18 

(Captain Porter testified that, once he learned that there had been a pursuit of Mr. Hylton-Brown, 

his “next question would have been why didn’t we come on the Fourth District radio zone to let 

anyone know that we’re chasing someone?”).
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. As 

Captain Porter testified: 

Zabavsky speaks first and he says, “Do you know that accident on 

Kennedy Street with the moped?” I said, “Yeah, I heard of it. I 

heard it.” He said, “Well, we might have been trying to stop 

him. . . .” He said something about, “We want to figure out if this 

is a chase or not.” And so I started talking to him and I said, “Well, 

if you tried to stop him and he takes off and goes and [gets] hit, that’s 

not a chase. That’s not your fault.” And then I think Sutton might 

have picked the conversation up I believe, and he says, “Well, we 

were following him for a little bit.” And I look at Sutton. I said, 

“Well, how long is a little bit?” He said, “Two minutes.” And I 

said, “Well, that’s a long time.” So, then I looked back at Zabavsky 

and I said, “Well, have you looked at his body worn camera to see 

if it was a chase?” And Lieutenant Zabavsky said, “Not yet.” And 

I said, “Well, go back and look at his body worn camera and then let 

me know if it’s a chase or not.” 

Trial Tr. Nov. 17, 2022 a.m. at 54:1-19. 

 During this initial encounter, Mr. Zabavsky told Captain Porter that “the person 

that was hit was intoxicated,” and that Mr. Hylton-Brown “slurred his words or something.” Id. 

at 55:16-56:1. Mr. Zabavsky also told Captain Porter that an officer had accompanied Mr. 

Hylton-Brown to the hospital. Id. at 57:1-17. Captain Porter explained that his initial 

conversation with Mr. Sutton and Mr. Zabavsky gave him the impression that the CST officers

were trying to effectuate a traffic stop on Mr. Hylton-Brown for driving his moped on the 

sidewalk. Id. at 58:3-11 (“[Officer Sutton] was trying to stop [Mr. Hylton-Brown] . . . because 

he was stopping and going on the sidewalk. That was my understanding.”). During that initial 

conversation, neither Mr. Sutton nor Mr. Zabavsky mentioned anything about Mr. 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. See id. at 64:11-25, 65:9-21 (Captain Porter 

testified: “I took that statement, that he was intoxicated, [to mean] that they must have found 

that out . . . after the accident when they went up to him and [were] speaking with him, he was 

slurring his words.”). Captain Porter also came away from this conversation with Mr. Sutton and 

Mr. Zabavsky thinking that an officer was “standing by” with Mr. Hylton-Brown at the hospital 

in case Mr. Hylton-Brown would be arrested for driving under the influence. See id. 

at 55:11-57:13. 

 During this initial conversation, neither Mr. Sutton nor Mr. Zabavsky mentioned 

to Captain Porter that Mr. Zabavsky was involved in the chase, leaving Captain Porter with the 

impression that “Sutton went to his manager [Lieutenant Zabavsky] to explain the situation,” 

rather than both men having been involved from the start. Trial Tr. Nov. 17, 2022 a.m. at 55:7-9. 

Captain Porter testified that he “definitely” would have wanted to know whether Mr. Zabavsky 

was involved in the chase before deciding how to proceed with investigating potential 

misconduct. Id. at 59:3-60:6. And Captain Porter “would not have [asked Mr. Zabavsky to] help 

. . . with the investigation” if Mr. Zabavsky was “part of the misconduct.” Id. at 59:23-60:5. 

Furthermore, neither Mr. Sutton nor Mr. Zabavsky told Captain Porter that Mr. Hylton-Brown’s 

injuries were serious during their initial conversation. Captain Porter testified that “the only time 

[Mr. Zabavsky] brought up injuries was because of the intoxication.” Id. at 57:3-9. Captain 

Porter explained that if he had learned right away that this was a pursuit resulting in a serious 

injury, he “would have had to make a lot of notifications” to the Major Crash Unit, to IAD, and 

to his superiors. Id. at 60:24-61:23. 

 About fifteen minutes after the initial conversation between Mr. Zabavsky, Mr. 

Sutton, and Captain Porter, Mr. Zabavsky re-entered Captain Porter’s office and told him, “We 
62

have a problem.” Trial Tr. Nov. 17, 2022 a.m. at 70:3-10 (Porter testimony). The officer who 

was at the hospital with Mr. Hylton-Brown, Officer Ernie Davis, reported that Mr. 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. Captain Porter also asked 

Mr. Zabavsky why Major Crash was not called to the scene immediately, and Mr. Zabavsky 

replied that he thought Mr. Hylton-Brown’s condition was not that critical. Id. at 102:3-5. 

Captain Porter explained that, upon hearing about Mr. Hylton-Brown’s serious condition: 

I said, what, we need to notify Major Crash. And [Mr. Zabavsky] 

said “I’m on the phone with [them].” And then I said, “Did you look 

at the body worn camera, it is a chase?” And he said he wasn’t sure, 

but it’s up on his computer if I want[ed] to come and look at it. At 

that point I said no, I’ll log in and look at it myself. So I started 

logging in. 

Trial Tr. Nov. 17, 2022 a.m. at 70:11-17 (Porter testimony); see id. at 71:7-14. 

 Captain Porter began watching the body worn camera footage “less than a 

minute” after Mr. Zabavsky told him about Mr. Hylton-Brown’s condition. Id. at 71:15-17. 

Captain Porter reviewed Mr. Sutton’s body worn camera footage as well as Officer Tejera’s. Id. 

at 75:2-20. While reviewing Officer Tejera’s body worn camera footage “from the time it started 

all the way to the crash,” Captain Porter determined that Mr. Sutton had engaged in a pursuit. Id. 

at 78:13-16. He turned to Mr. Zabavsky, who had come into Captain Porter’s office to watch the 

footage, and said: “This is a chase.” Id. at 78:5-8. At that point, Captain Porter immediately 

began the process for notifying IAD. Id. at 80:1-81:6. 

 Captain Porter then rushed to the scene of the collision himself, notifying his 

superior officer, Commander Brian Bray, on the way. Trial Tr. Nov. 17, 2022 a.m. at 81:8-24. 

Once at the scene, Captain Porter worked with an officer from the Major Crash Unit to 

investigate. Id. at 82:11-19. Captain Porter testified: “I needed more information because 
63

people were asking me for information, the investigators, the IAD investigator, the Major Crash 

investigator was asking me for information I did not have. So I was relying on Lieutenant 

Zabavsky for that information.” Id. at 85:24-86:3. Repeatedly, as Captain Porter assisted with 

the investigation at the scene, he called Mr. Zabavsky to ask clarifying questions and get more 

information about what had happened before the collision. Id. at 82:11-84:7. Mr. Zabavsky 

never volunteered that he was involved in the pursuit – even after Captain Porter asked him if he 

was. Id. 

b. Mr. Sutton’s Draft Report 

 Officer Al-Shrawi explained that, once back at the Fourth District, Mr. Zabavsky 

and Mr. Sutton spoke with Captain Porter, who told them to review the CST officers’ body worn 

camera from that evening. Trial Tr. Nov. 10, 2022 p.m. at 129:4-130:25. As Mr. Zabavsky and 

Officers Novick, Tejera, and Al-Shrawi began watching body worn camera footage, Officer 

Sutton sat outside, within earshot of Mr. Zabavsky’s office, writing the traffic crash report. Id. 

at 130:20-131:4. Mr. Sutton’s traffic report contained a narrative, which read as follows: 

On the listed date and time officers attempted a traffic stop on 

Vehicle #2 [Mr. Hylton-Brown] at 5th St NW and Kennedy St NW 

after observing the listed driver of Vehicle #2 riding on the sidewalk 

in the 500 block of Kennedy St NW without a helmet. Vehicle #2 

is a Revel electric scooter. The driver of Vehicle #2 continued to 

drive at a slow speed while braking and coming to random stops, as 

if he was going to bail off the listed vehicle. Officers deactivated 

their emergency lights and followed Vehicle #2 at a slow speed with 

distance in between their vehicle and Vehicle #2 into the 700 block 

of Ingraham St NW. At the time, there was little to no vehicular or 

pedestrian traffic. Officers observed Vehicle #2 enter an alley in the 

700 block of Ingraham St NW and lost sight of Vehicle #2 and began 

to canvas the area, in the event that the driver of Vehicle #2 had 

bailed out on foot. A short time later, Officers turned into the 5400 

block of 8th St NW and observed Vehicle #2 at the intersection of 

8th St NW and Kennedy St NW. Officers attempted a traffic stop 

again at 8th St NW and Kennedy St NW when the driver of Vehicle
64

#2 disregarded again and continued southbound at a slow speed in 

the 5400 block of 8th St NW. Vehicle #2 made a left turn into the 

700 block of Jefferson St NW and immediately into the alley. 

Officers deactivated their emergency lights again when entering the 

alley. Vehicle #2 was observed traveling northbound through the 

alley and failed to come to a stop or even attempt to slow as it exited 

the mouth of the alley into oncoming traffic in the 700 block of 

Kennedy St NW at which point Vehicle #1 [the Scion] which was

traveling eastbound on Kennedy St NW struck Vehicle #2. 

As officers pulled up to the accident, they immediately checked on 

the welfare of the driver of Vehicle #2. The officers immediately 

observed the driver of Vehicle #2 was lying on the ground 

unresponsive, and began to administer first aid. Officer Novick 

deployed his TECC Kit and gauze was applied to the head of the 

driver of vehicle #2 to stop bleeding. Officers remained on scene 

awaiting arrival of DCFEMS (Medic #14) who assumed care of the 

driver of Vehicle #2. Officers were only able to observe superficial 

abrasions on left eyebrow line to the driver of Vehicle #2’s head. 

The driver of Vehicle #2 was transported to WHC via Medic #14 

from the scene. Vehicle #2 appeared to sustain disabling damage 

from the collision.

Officers then checked on the welfare of the driver of Vehicle #1. 

The driver of Vehicle #1 appeared to be normal. The driver stated 

that he was “just traveling and he popped out of the alley” in 

reference to the driver of Vehicle #2. The driver of Vehicle #1 did 

not have any visible injuries and did not complain of any pain. 

Vehicle #1 had minor damage to the front bumper and a crack to the 

top passenger side of the windshield. Vehicle #1 was driven away 

from the scene by the listed owner. 

Gov’t Ex. 404-F.

 Joseph Della Camera, an agent with the MPD Internal Affairs Division, testified 

that, during the course of his investigation, he determined that the information contained in 

Officer Sutton’s draft traffic crash report was not “accurate or factual.” Trial Tr. Nov. 7, 2022 

p.m. at 73:1-15. He also testified that “[i]t’s very well known” that “[p]olice reports are 

supposed to contain factual and truthful information.” Id. at 74:7-18; see id. (Agent Della 

Camera explained that it would violate MPD policy to write false or misleading reports).
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. 

Officer Folts told the jury that while he was working the midnight shift on October 23, 2020, he 

received notification about the collision involving Mr. Hylton-Brown about an hour and a half 

after the collision occurred. Id. at 26:4-27:20. He explained that, in general, a “delay in 

notification” can affect a Major Crash Unit investigation by potentially making it harder to 

collect evidence and identify witnesses. Id. at 28:22-29:3. 

 Officer Al-Shrawi explained what was happening at the Fourth District police 

station prior to Officer Folts getting that call. He testified that, between returning to the Fourth 

District and notifying the Major Crash Unit about the incident, the CST officers received three 

calls from Officer Ernie Davis, who was at the hospital with Mr. Hylton-Brown. Trial testimony 

is ambiguous about what was conveyed during the first call, but during the second call, Officer 

Davis said Mr. Hylton Brown was in “critical condition,” and during the third call, Officer Davis 

said Mr. Hylton Brown was “on a breathing tube and he had a skull fracture.” Trial Tr. Nov. 10, 

2022 p.m. at 134:1-135:24 (Al-Shrawi testimony). After the third call, Mr. Zabavsky stood up 

and told the CST officers – for the first time that night – that “they had to notify Major Crash.” 

Id. at 138:15-22. Officer Folts spoke with Mr. Zabavsky for the first time at 12:20 a.m. the 

morning of October 24, 2020, and a second time around 2:00 or 3:00 a.m. that same morning. 

Trial Tr. Nov. 9, 2022 a.m. at 34:20-35:4. At no point during these conversations did Mr. 

Zabavsky disclose to Officer Folts his own involvement in the pursuit. Id. at 46:8-47:15. 

 While MPD police officers are permitted to handle ordinary traffic collisions, the 

Major Crash Unit usually gets involved whenever a collision results in the “possibility of death,” 
66

including where injured parties experience “labored breathing, a large amount of blood,” “losing 

consciousness,” or “head injur[ies].” Trial Tr. Nov. 9, 2022 a.m. at 19:16-25, 20:13-21:2 (Folts 

testimony); id. at 86:19-87:3; see Trial Tr. Nov. 10, 2022 a.m. at 53:23-54:9 (Officer Folts 

testified that Major Crash should be notified when someone injured in a crash is taken to the 

hospital); Trial Tr. Nov. 14, 2022 p.m. at 62:7-22 (Officer Novick explained that Major Crash 

should be called “in the event of a crash that results in a fatality or a very serious injury”). 

Officers should notify the Major Crash Unit “as soon as possible” after a serious collision, and 

Officer Folts said he would expect the “most senior official on the scene” to make that 

notification. Trial Tr. Nov. 9, 2022 a.m. at 23:15-24:1. 

 Although the Major Crash investigation was eventually completed by a different 

officer – Detective Victor DePeralta – Officer Folts responded to the crash site that evening and 

testified about various ways that the crash site was not properly preserved to facilitate a Major 

Crash Unit investigation. He explained that the driver of the Scion, the striking vehicle, “should 

have remained on the scene so he could be interviewed by someone from Major Crash” and so 

investigators could have observed and photographed “the condition of the vehicle, to see how 

much damage has been done, [and] the final resting position of the vehicle.” Trial Tr. Nov. 9, 

2022 a.m. at 53:4-8, 54:6-13; see id. at 72:2-5 (Officer Folts testified that he thought the collision 

scene was “preserved very poorly”). Officer Folts also told the jury that it is MPD policy to have 

officers “attempt to preserve or freeze” the crash scene in its original condition. Trial Tr. Nov. 

10, 2022 a.m. at 72:7-11. 

 The government also introduced an email from Mr. Zabavsky to Officer Folts and 

other officers in the Major Crash Unit. Trial Tr. Nov. 9, 2022 a.m. at 82:1-83:23; Gov’t Ex. 223. 

Mr. Zabavsky’s email contained, as an attachment, Mr. Sutton’s draft traffic crash report. See
67

Gov’t Ex. 223. Officer Folts explained that he forwarded this information, including the draft 

report, to the Internal Affairs Division investigators responsible for investigating the pursuit. 

Trial Tr. Nov. 9, 2022 a.m. at 82:1-83:23. 

5. Internal Affairs Division Investigation 

 Internal Affairs Division (“IAD”) Agent Joseph Della Camera explained that he

was the on-call IAD agent on October 23, 2020, when he received a notification about the 

incident involving Mr. Hylton-Brown. Trial Tr. Nov. 7, 2022 p.m. at 29:21-30:10. IAD 

“investigates serious misconduct” and the use of force by MPD officers. Id. at 15:18-21. IAD 

agents, like Agent Della Camera, are responsible for “gather[ing] all the facts and 

circumstances” surrounding an incident they are charged with investigating. Id. at 16:6-10; see

id. at 20:1-21:10 (Agent Della Camera testified that when IAD is called to initiate an 

investigation, the on-call agent will begin collecting “as much information as possible . . . to find 

out the circumstances and to preserve evidence”). Although IAD agents generally investigate 

“administrative” violations where MPD staff members are suspected of violating MPD policies 

and procedures, IAD investigations may also concern “potential criminal violations.” Id. at

16:14-19; see id. at 16:3-25 (Agent Della Camera testified that IAD investigates potential 

criminal offenses when “officer involved shooting[s], significant injuries to an individual,” and 

“other types of misconduct” occur); Trial Tr. Nov. 8, 2022 p.m. at 30:3-31:1 (Officer Arnone 

testified that she learned during training that failure to adhere to MPD general orders could result 

in administrative as well as criminal consequences); Trial Tr. Nov. 15, 2022 p.m. at 9:12-10:16 

(Officer Totaro explained that MPD officers learn about the “legal consequences for on-the-job 

driving incidents,” including civil and criminal liability if the officer’s conduct violates the law). 
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 “because of the chase, IAD would probably 

. . . take the case”). When a vehicular pursuit by a MPD officer results in serious injury or death, 

IAD and the Major Crash Unit assist one another in conducting their investigations. Trial Tr. 

Nov. 7, 2022 p.m. at 21:11-23. 

 Agent Della Camera testified that he was notified about this incident “sometime 

after midnight” on October 24, 2020. Trial Tr. Nov. 7, 2022 p.m. at 30:4-10. After receiving the 

notification, Agent Della Camera called Captain Porter, who provided an overview of what had 

occurred with the CST vehicle that evening. Id. at 30:11-31:19. At about 12:40 a.m. – 

approximately two and a half hours after the collision – Agent Della Camera began reviewing 

Mr. Sutton’s and Officer Tejera’s body worn camera footage. Id. at 40:7-43:24; see Gov’t Exs. 

219-C, 219-D (body worn camera audit logs indicating that Agent Della Camera accessed Mr. 

Sutton and Officer Tejera’s body worn camera footage on October 24, 2020 at 12:41 a.m. and 

12:47 a.m., respectively). Once he finished reviewing the footage, shortly after 1:00 a.m., Agent 

Della Camera responded to the scene of the collision to investigate the circumstances 

surrounding the collision. Trial Tr. Nov. 7, 2022 p.m. at 44:2-45:8. Agent Della Camera was 

concerned that the crash scene “wasn’t properly preserved” – the striking vehicle was gone, Mr.

Sutton’s vehicle was gone, and there were no witnesses on the scene to be interviewed. Id. 

at 48:12-49:25; see Trial Tr. Nov. 9, 2022 a.m. at 72:2-5 (Folts testimony). 
69

 As part of his IAD investigation, Agent Della Camera reviewed Mr. Sutton’s draft 

traffic crash report describing the incident and relied on Mr. Sutton’s draft report when writing 

his own preliminary IAD report. Trial Tr. Nov. 7, 2022 p.m. at 63:1-19, 66:20-23. After 

completing his preliminary report, Agent Della Camera conducted additional investigation, 

which included reviewing body worn camera footage and surveillance footage from the area 

where the chase occurred. Id. at 67:11-22. After reviewing this footage, Agent Della Camera 

concluded that the “information [he] had put into [his preliminary] report based on [Officer 

Sutton’s] traffic crash report was not factual.” Id. at 67:24-68:1. 

 Agent Della Camera explained that Mr. Sutton’s draft report stated that officers 

were “canvassing” the area for Mr. Hylton-Brown – but multiple surveillance videos did not 

show the CST vehicle canvassing the area. Trial Tr. Nov. 7, 2022 p.m. at 71:2-15. Rather, 

Agent Della Camera described what he saw on surveillance video as Mr. Hylton-Brown’s “direct 

flight from the unmarked vehicle” driven by Mr. Sutton. Id. Agent Della Camera similarly 

concluded that Officer Tejera’s body worn camera footage contradicted the information 

contained in Mr. Sutton’s draft report: that the CST officers “lost sight” of Mr. Hylton-Brown in 

an alleyway. See Gov’t Ex. 404-F. A second look at Officer Tejera’s body worn camera led 

Agent Della Camera to determine that “it doesn’t appear that they [the CST officers] lost sight of 

Mr. Hylton at all” during the pursuit. Trial Tr. Nov. 7, 2022 p.m. at 69:2-70:10. 

 Ultimately, Agent Della Camera concluded that “the information in the traffic 

crash report was not accurate or factual. . . . They [the CST officers] weren’t canvassing for him. 

They were actually pursuing him.” Id. at 73:1-15. See Trial Tr. Nov. 8, 2022 a.m. at 40:7-11 

(Agent Della Camera testified that the CST vehicle was not “canvassing” for Mr. Hylton-Brown, 

and the officers were “right behind him”); Trial Tr. Nov. 7, 2022 a.m. 67:2-68:6 (Officer Tejera 
70

testified that during the pursuit, the CST vehicle “always” managed to stay behind Mr. HyltonBrown, that the officers only lost sight of Mr. Hylton-Brown for “short periods” of time, and that 

the officers never “lo[st] him for so long [that they] had to canvass the area”). 

6. Evidence Relating to a Federal Nexus 

 In addition to explaining his own investigation into the chase that resulted in Mr. 

Hylton-Brown’s death, Agent Della Camera also described general MPD and IAD policies when 

MPD officers are suspected of misconduct or potential criminal violations. Agent Della Camera 

specified that when MPD officers are involved in serious misconduct, serious uses of force, and 

certain types of vehicular pursuits, IAD investigates those incidents both for potential 

administrative violations as well as possible criminal offenses, depending on the circumstances. 

Trial Tr. Nov. 7, 2022 p.m. at 16:14-17:3. For vehicular pursuits specifically, Agent Della 

Camera explained that IAD automatically investigates pursuits resulting in fatalities, serious or 

life-threatening injuries, and serious officer misconduct. Id. at 18:8-19:16. 

 Whenever a vehicular pursuit occurs, an MPD official is supposed to collect 

information related to the pursuit and send that information to the watch commander, who 

generates a report. Trial Tr. Nov. 7, 2022 p.m. at 25:18-27:19 (Della Camera testimony). The 

initial, district-generated report – the “pursuit package” – ultimately gets submitted to IAD, and 

IAD may investigate further based on the nature of the officer’s conduct and any fatalities or 

serious injuries that occurred. Id. at 26:2-29:20; see Trial Tr. Nov. 15, 2022 a.m. 

at 103:13-104:22, 106:17-107:9 (Officer Totaro explained that MPD officers learn about postpursuit investigations during their training, including that IAD and the Major Crash Unit will 

investigate all pursuits involving fatalities or serious bodily injury). 
71

 Agent Della Camera also explained IAD’s process for referring matters involving 

MPD officers to the U.S. Attorney’s Office. When an IAD investigation involves potential 

criminal violations, IAD agents “make notification to the United States Attorney’s Office” and 

“let them know [IAD] ha[s] a criminal referral.” Trial Tr. Nov. 7, 2022 p.m. at 17:4-10. Agent 

Della Camera explained that IAD always refers cases involving death or serious injuries to the 

U.S. Attorney’s Office. Id. at 75:18-76:21. After receiving an IAD referral, the U.S. Attorney’s 

Office conducts a “prosecutorial review of the circumstances of MPD involvement and what led 

up to the individual’s injuries or death” to determine if there was “criminal wrongdoing on the 

officer’s part.” Id. at 77:24-78:8. 

 Agent Della Camera testified that he referred this case to the U.S. Attorney’s 

Office within eight hours of the collision, at approximately 6:00 a.m. on October 24, 2020. See

Trial Tr. Nov. 7, 2022 p.m. at 98:2-6; Trial Tr. Nov. 8, 2022 a.m. at 55:2-4. He explained:

Prosecutor: In your time at Internal Affairs, have you referred some 

of your matters under investigation to the U.S. Attorney's 

Office?

Agent Della Camera: Yes. 

Prosecutor: Is that part of your job at Internal Affairs? 

Agent Della Camera: Yes.

Prosecutor: And what role do you have after the referral occurs in 

the investigation that’s conducted? 

Agent Della Camera: Once a referral is made [via] e-mail 

notification 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 the 

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: What 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 Superior 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 role that we have liaison 

with. 

The Court: Are you saying that any time 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 Office conducted. Trial Tr. Nov. 7, 2022 p.m. at 99:19-100:11. Based on 

his participation in meetings with witnesses, prosecutors, and other agents, Agent Della Camera 

was under the impression that the U.S. Attorney’s Office was taking steps to examine whether a 
73

federal civil rights violation had occurred. Id. at 100:13-101:20. Agent Della Camera’s 

testimony was as follows: 

Prosecutor: After the referral was made, did you have a role in some 

of the initial investigation conducted at the U.S. Attorney’s 

Office?

Agent Della Camera: Yes. 

Prosecutor: What role did you have? 

Agent Della Camera: Initially, I sat in on some of the interviews 

with witnesses. 

The Court: Sat in on what? 

Agent 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 prosecutors 

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: The 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 examine 

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 participation 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 are 
74

assigned to the U.S. Attorney’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 crash scene 

and everything that happened after the crash scene.” 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: That would be my supervisor Special Agent in 

Charge Bryan Molnar and then Assistant United States 

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 

looking for evidence about? 

Counsel 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 with 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 or 

obstruct any potential investigation. 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 following 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: Objection. Asked and answered. She’s 

going back to testimony –

The Court: She’s laying a foundation 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 into federal civil rights violations or D.C. code 

violations?

Agent Ricardi: Federal civil rights 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?

Agent Ricardi: Yes. 

Prosecutor: Are you familiar with the organization of the D.C. U.S. 

Attorney’s Office?

Agent Ricardi: Yes. 

Prosecutor: Does the office have some units that prosecute federal 

crimes?

Agent Ricardi: Yes. 

Prosecutor: Do some units prosecute local crimes?

Agent Ricardi: Yes. 

Prosecutor: What unit was AUSA Baset assigned to?

Agent Ricardi: He was assigned to Public Corruption and Civil 

Rights.

Prosecutor: Does that unit work on federal cases or D.C. Superior 

Court cases?

Agent Ricardi: Federal cases. 

Trial Tr. Oct. 28, 2022 p.m. at 64:22-66:2.

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

1. Misleading Conduct

The evidence presented at trial was sufficient for a reasonable jury to conclude 

that Mr. Sutton and Mr. Zabavsky “engage[d] in misleading conduct toward another person.” 18 

U.S.C. § 1512(b). The jury was entitled to rely on the testimony of Captain Porter, with whom

Mr. Sutton and Mr. Zabavsky spoke after the collision. Captain Porter’s testimony 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 concealing [] material 
76

fact[s].” 18 U.S.C. § 1515(a)(3)(b). Captain Porter 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 about the chase only after it had occurred, and he was not aware that Mr. 

Zabavsky himself was involved in the chase from the start. Captain Porter explained that he 

would have taken different steps if Mr. Sutton and Mr. Zabavsky had been truthful with him 

during 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 occurred 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 Della 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. Hylton-Brown, but both Agent Della Camera and Captain Porter testified that

video footage showed that the CST vehicle was not “canvassing” the area at all. Furthermore, 

the government introduced body worn camera footage from just after the collision, 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-Brown sustained and that Mr. Sutton’s decision 

to describe those injuries as “superficial” in his draft report was misleading. See 18 U.S.C 

§ 1515(a)(3)(B).

 Mr. 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 examination that officers are 

instructed to submit draft traffic crash reports to their supervisors and revise those reports before 

they become official). Because the report was a draft subject to revision and editing, Mr. Sutton 

asserts that his failure to include 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 statements in particular would be reviewed by other MPD 

officials during their investigations. Agent Della Camera, for example, did in fact rely on Mr. 

Sutton’s draft report when investigating the pursuit. Drawing all inferences in the government’s 
78

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 reasonable jury could also conclude that Mr. Sutton’s report 

– which omitted details about the blood and vomit and only described Mr. 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 had actually occurred 

. . . constituted ‘misleading conduct’”); United States v. Hawkins, 185 F. Supp. 3d at 125 

(misleading conduct includes “intentionally concealing material facts”); 18 U.S.C. § 1515(a)(3) 

(misleading conduct includes “intentionally concealing a material fact, and thereby creating a 

false 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 obstruct 
79

justice.” Zabavsky Mot. at 14. He 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 

report. Failure to establish any one of these facts is not dispositive. Rather, the jury was 

permitted to consider 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 

“misleading.” Moreover, in addition to evidence of Mr. Sutton’s draft report, the government 

introduced other testimony about Mr. Zabavsky’s misleading conduct – the most prominent 

being that Mr. Zabavsky omitted critical information about Mr. Hylton-Brown’s injuries and the 

nature 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. 

 Mr. Sutton and Mr. Zabavsky both argue that they made honest, accurate 

statements to Captain Porter, and therefore that no reasonable jury could conclude that their 

conduct was misleading. Mr. Sutton points out that he told Captain Porter 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). 

 That Mr. Sutton and Mr. Zabavsky may have made some truthful 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 certain 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 failed to mention 

the seriousness of Mr. Hylton-Brown’s injuries. They failed to provide Captain Porter with a full 

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 government, it was not unreasonable for a jury to conclude on this record that 

Mr. Sutton’s and 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 their 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 evidence – 

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-versed 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 lieutenant 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 immediately” once the officers the on scene learned about the serious 
82

nature of Mr. Hylton-Brown’s injuries – and Officer 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 omissions 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 knowledge). The jury heard testimony 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 conduct was misleading. 

 Mr. Sutton argues that “[t]he requisite criminal intent for obstruction of justice 

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 “obstructive” unless he “knew he had 
83

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 1512(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 specifically know that the underlying conduct could constitute a federal offense”). 

The jury could conclude 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-Brown 

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 statute itself prohibits obstruction related 

to “possible” federal offenses. See 18 U.S.C. § 1512(b)(3) (emphasis added). The government 

presented ample evidence from which a reasonable juror 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 collision, which Mr. Sutton was 

using, but both men refrained from using that language when speaking with Captain Porter; Mr. 

Sutton failed to preserve evidence at the collision site and provided an incomplete, inaccurate 

description 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. 

 Mr. Zabavsky similarly argues that the government did not prove that he was 

“aware of 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 was 
84

not in Officer Sutton’s car, and he did not witness the entirety 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 the 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 of the collision” does not preclude a reasonable juror from finding 

that he knew his statements to Captain Porter would be misleading. See 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 injuries 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 mens rea through direct evidence’ and therefore proof of 

intent must be inferred from circumstantial evidence.” United States 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 Folts and Captain Porter both explained that notification to the Major 

Crash Unit should have been 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 MPD 
85

policies direct MPD officers to “freeze” collision sites in their original condition, yet Mr. Sutton 

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-Brown’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 Mr. Sutton and Mr. Zabavsky had the purpose of making it harder for 

Major Crash Unit officers and 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. 

 Mr. 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 Unit was able to do a full investigation, he says, the 

government could not have established that any communication of information relating to the 

chase and collision was prevented, hindered, or delayed – let alone that the defendants intended 

to prevent, hinder, or delay any such communication. See Sutton Mot. at 24; Sutton Reply at 21 

(“Major Crash and IAD were advised of the collision within 3 hours of the event.”). It is

irrelevant, however, whether there was any “actual delay” in the Major Crash or IAD 

investigation, see Sutton Reply at 22, so long as Mr. Sutton intended to bring about a delay in 

some communication. See United States 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 to 
86

‘hinder, delay, or prevent’ communication with federal law enforcement officers. It does not 

require that the individual have succeeded.”). Based on the evidence established at trial, the jury 

was entitled to conclude that Mr. Sutton acted with the requisite intent. 

 Mr. Zabavsky argues that the government failed to prove that he acted with the 

requisite intent because 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, he also labeled his own body worn camera 

footage as relating to “Internal 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 that 

he acted with the specific intent 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 United States v. Borda, 848 F.3d at 1055 (holding that the government’s evidence was 

sufficient to affirm conviction despite “numerous examples of evidence [the defendants] believe 

to be exculpatory or contradicting”); United States v. Bell, 113 F.3d 1345, 1350 (3d Cir. 1997) 

(evidence was sufficient to sustain Section 1512 conviction 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 offense); 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 truthful 
87

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 involvement 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 told 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 he and Mr. 

Sutton turned off their body worn cameras at the crash scene before heading back to the Fourth 

District. Taken in the light most favorable to the government, a reasonable juror could easily 

conclude that Mr. Zabavsky acted with the requisite intent, notwithstanding the two 

“affirmative” actions he identifies in his motion. See Zabavsky Mot. at 12. 

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

 The government clearly established 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, the government presented testimony about the kinds of incidents that 

IAD and the Major Crash Unit investigate and the kinds of cases that IAD refers to the U.S. 

Attorney’s Office as a matter of course. The government’s evidence established that when an 

officer engages in a pursuit – and especially when a civilian is killed or sustains serious bodily 
88

injury during or as a result of that pursuit – IAD must be notified and will investigate the matter. 

MPD officers learn about this notification process during their training. When 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 together 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 prosecutorial 

screening, and MPD officers learn during training that they may be subject to criminal 

prosecution for on-the-job misconduct. Assistant United 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 responsible for investigating incidents 

of police misconduct after those incidents 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 

officer 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. Captain Porter testified that he called IAD as soon as he reviewed 

Officer 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, and 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 communication 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 Major Crash Unit and IAD “work in parallel,” 

and the fact that information would be communicated 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 investigation 

with the notification to federal authorities made by the Internal Affairs Division.”). 

8

 Agent Della Camera testified that IAD referrals always go to the same unit within 

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 it was reasonably likely 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 Office in the District of Columbia. Id. at 98:22-99:1; see Fowler v. United States, 

563 U.S. at 678. 
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 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 that

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 in fatalities. Trial Tr. Nov. 7, 2022 p.m. at 21:11-23. While Officer Folts was 

at the hospital with 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 Camera 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 the 

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) 

offenses); 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, the government was required to prove that the information that could 

have been communicated “relat[ed] to the commission or possible commission of a Federal 
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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 testimony 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 they believed this investigation concerned possible federal civil 

rights offenses, not only because they had personal knowledge of the investigation, but because 

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 

participation in a federal civil rights investigation and the statements of others that informed the 

agents’ states of mind – was sufficient to withstand a motion for judgment of acquittal. 

 Mr. Sutton and Mr. Zabavsky argue that the government failed to prove 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, he 
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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 investigation, Agent Della Camera 

testified 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 truth, but instead was

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 rights 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 Office 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 Special 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 FED. R. EVID. 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 technically not hearsay at all.”); Jones v. United States, 934 F. Supp. 2d 284, 290 

(D.D.C. 2013) (statements that were offered “to establish that certain statements were made and 

their effect on the listener” were offered for a non-hearsay purpose). From the admittedly 

limited evidence presented by the government about Special Agent Ricardi’s and Agent Della 
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Camera’s state of mind and about their 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 Government Has Met Its Burden as to Conspiracy to Obstruct Justice

1. Agreement and Intent 

 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 justice, and that 

both Mr. Sutton and Mr. Zabavsky intentionally joined in that agreement. “[D]irect evidence of 

agreement is not required, however; the jury may infer conspiratorial agreement from the 

circumstances and the defendant’s knowledge.” United States 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 United 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 commit 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 channel that they were “chasing” Mr. Hylton-Brown. Mr. Zabavsky’s body worn camera 

depicts a conversation he had with Officer Arnone, during which he made clear that Mr. Sutton, 
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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 agreement 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 from [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 sufficient 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 States 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 government introduced 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’ 

cooperative efforts . . . constituted an agreement to commit 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 a 
95

reasonable inference, particularly given the testimony from various officers about how Mr. 

Sutton and Mr. Zabavsky were knowledgeable about MPD policies and procedures, which 

provide guidance on preserving crash sites and making timely notification to the Major Crash 

Unit and IAD. Furthermore, when Mr. Sutton and Mr. Zabavsky spoke to Captain Porter for the 

first time that evening together, neither 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 presented evidence that both Mr. Sutton and Mr. Zabavsky knew, based on their 

training and experience, that they should have told Captain Porter more than they did. And 

testimony from various other officers established MPD’s policies and practices about notifying 

superior officers and other MPD departments when a pursuit occurs and results in lifethreatening injuries. Officer Totaro 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 

evidence, 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 obstruction of justice. 

2. Overt Act 

The government was also required to prove that Mr. Sutton or Mr. Zabavsky took 

some action with the purpose of carrying out the conspiracy. The jury unanimously found that 

the government proved beyond a reasonable doubt Overt Act Thirteen, which stated:

At the Fourth District police station, Sutton and Zabavsky met with 

the Watch Commander, the senior-most official in charge, and 

provided him with a misleading account of the incident: 

a. Sutton and Zabavsky portrayed the incident as a brief 

attempted traffic stop from which a moped driver took off and 

was then hit by a vehicle; 

b. Sutton minimized his conduct, saying that he did not engage 

in a vehicular pursuit; 
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c. Zabavsky said that he did not know if Sutton had engaged in a 

vehicular pursuit; 

d. Zabavsky withheld information concerning his own 

involvement in the pursuit; 

e. Zabavsky said that Hylton-Brown had been drunk and had 

been slurring his words; and, 

f. Sutton and Zabavsky withheld all information about HyltonBrown’s serious injuries. 

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. 

 Although the government introduced ample evidence about Mr. Sutton and Mr. 

Zabavsky’s misleading conduct, Captain Porter’s testimony alone is sufficient for their 

convictions to withstand a motion for judgment of acquittal. Captain 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 channel radio that they were “chasing” 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 potentially 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 representations gave Captain Porter the impression that Mr. Zabavsky was not 

involved in the incident, and that Mr. Zabavsky would have to review the body worn camera 
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footage in order to determine whether a chase had occurred – again, despite the fact that Mr. 

Zabavsky 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 injuries and admitted their 

involvement in the pursuit – would likely have 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 their conversation with Captain Porter. 

 Mr. Zabavsky raises similar arguments regarding the conspiracy conviction as he 

raised respecting the obstruction of justice conviction. Specifically, he argues that his truthful 

statements to Captain Porter make 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 

circumstances 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 

misleading account of the incident. See id. at 33:3-17. 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. 
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V. CONCLUSION

In October of 2020, a police officer engaged in a reckless 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 the officer of second-degree murder 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 withstand a motion for judgment 

of acquittal under Rule 29 of the Federal Rules of Criminal Procedure. Accordingly, it 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 DENIED; and it is 

FURTHER ORDERED 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