3 unless an exception applies.”) That is exactly the kind of the statements the Defendant is attempting to introduce.

As an initial matter, the Defendant faults the Government for removing the radio run from its exhibit list. But as the Court pointed out, in the lead-up to trial, the anticipated presentation of evidence and witnesses is fluid and likely to change. The radio run exhibit was included on the Government’s initial exhibit list because the Government sought to be over- inclusive and provide notice to Defendant of any potential exhibits it might introduce at trial. The Government never contemplated, and certainly never agreed, that exhibits listed on its exhibit list would be admitted by the Defendant.

Turning to the last of the Defendant’s statements he seeks to admit—the “prior conviction” notification by dispatch—that statement would only be admissible if the Defendant were to testify. With respect to the other three statements, the Defendant argues that they constitute present sense impressions and are therefore not hearsay. Although the first two statements— that the Defendant notified dispatch that he had initiated a traffic stop and that he needed backup—are closer calls with respect to the present sense impression exception, the third statement that the Defendant notified dispatch of “OC deployment and need for fireboard” do not fall within the exception. In order for the present sense impression exception to apply, , the statement must describe or explain an event or condition, which the declarant perceived firsthand, which was made contemporaneously – either during or immediately thereafter the event or condition.” United States v. Wills , Case No. 18-0117 (PLF), 2018 WL 6716096, at *4 (D.D.C. Dec. 21, 2018). The statement that EMS was needed because there had been an OC deployment was not made contemporaneously with the pepper spray. Nor does the statement describe anything about the pepper spray incident at all. Unlike the statement in Wills , in which the declarant stated that “he threw it in the bushes, . . he threw it to the right,” a call for EMS because there had been an OC deployment does not describe the event or condition that is the subject of the statement. In other words, if the statement in question had described any aspect of the pepper spray incident, the statement might fall within the exception. It does not, and thus, the statement is not admissible.

Furthermore, there is no indication from the Defendant about the amount of time that passed between the pepper spray incident and the Defendant’s call to dispatch. At a minimum, the statement to dispatch about OC deployment was not made contemporaneously. The amount of time that has elapsed between the statement and the qualifying event is an important factor, as the passage of time is “the effective proxy for the reliability of the substance of the declaration.” . Wills , 2018 WL 6716096, at *4. In the D.C. Circuit, it is clear that fifteen minutes is too long to satisfy the contemporaneity requirement, but beyond that, there is very little guidance. Compare Hilyer v. Howat Concrete Co ., 578 F.2d 422, 426 n.7 (D.C. Cir. 1978) (explaining that an “out-ofcourt statement made at least fifteen minutes after the event it describes is not admissible”), with Flythe v. District of Columbia , 4 F. Supp. 3d 222, 234 (D.D.C. 2014) (holding a statement admissible when the statement was made within moments or seconds of the event).

For these reasons, the statements on the radio run should not be admitted.

Christopher Howland and Sanjay Patel U.S. Department of Justice4 F rom: Christopher Macchiaroli < > Sent: Tuesday, June 4, 2024 7:29 PM

To: Kollar-Kotelly Chambers < > Cc: Howland, Christopher (USADC) < >; Patel, Sanjay (CRT) < >; Emma Mulford < > Subject: [EXTERNAL] United States v. Dupree: June 4, 2024

Chambers:

The Government intends to seek admission of the following statements from the radio run: (i) Officer Dupree’s immediate notification that he initiated a traffic stop on Mr. Sinclair and the providing of his license plate to Dispatch; (ii) Officer’s Dupree’s notification that he needed backup; (iii) Officer’s Dupree’s notification of OC deployment and need for “fireboard” (EMS); and (iv) Dispatch’s notification of Mr. Sinclair’s “prior” in PG County. The attached chronology of the radio run from the Report of Investigation (as excerpted) that was produced by the Government in discovery was in the attachment submitted earlier today and is also attached to this submission. It provides the chronology of the radio run at issue in this case based on a certified copy of the radio run provided by PG County. A copy of the radio run was produced by the Government to Chambers as part of its May 16 and May 23 Exhibit Productions and identified as Government Exhibit 200.

Subparts (i)-(iii) are all present sense impressions in that they are “statement[s] describing or explaining an event or condition, made while or immediately after the declarant perceived it.” FED. R. EVID. 803(1); see , e.g. , Flythe v. District of Columbia , 4 F. Supp. 3d 222, 233-34 (D.D.C. 2014) (admitting officer’s radio run statements as present sense impressions: “was on the “[f]our hundred block of Kenyon ,” “[t]ried to stab me, ma’’m. My gun jammed. Get official on this location”). Subparts (i)-(iii) were made in real time while the events were occurring. See United States v. Wills , No. 18-0117 (PLF), 2018 WL 6716096, at *4 (D.D.C. Dec. 21, 2018) (satisfying necessary factors).

During Officer Dupree’s notification of OC deployment, Mr. Sinclair is yelling/screaming in the background in response to the OC deployment. The words are not decipherable on the radio run. The entire episode, including, Officer Dupree making the radio run communication and Torrence Sinclair and his sister yelling are in the BWC video that the Government is seeking to admit into evidence without objection as GX 101. The audio on the video depicts dispatch communicating with Officer Dupree, but Officer Dupree’s words cannot be heard given the yelling/screaming in the background.

As it pertains to the radio run, the Defense is not seeking to identify the yelling in the background, but rather, Officer Dupree’s notification of the deployment. There will be zero prejudice as to the yelling in the background, when the jury will have the full audio of the BWC camera video to listen to the various yelling made during the identical period of time. In some instances, Mr. Sinclair is yelling, I cannot breathe, in other instances, he is yelling, get my lawyer. Even if not a present sense impression, which it is, the statement can also be admitted for the non-hearsay purpose of Officer Dupree providing notification to Dispatch, not for the truth of the matter asserted, that OC was deployed, which is undisputed in this case. This purpose is essential given that the Government as recently as in its Trial Memorandum (at 6) (D.E. 73) claimed that even though Officer Dupree was the officer in charge, Corporal Buie summoned EMS. Moreover, even if not otherwise admissible, which it is, if the Governme nt through witnesses or arguments, contends that Officer Dupree did not seek medical attention, the radio run could be used as impeachment evidence.

Finally, the defense never argued that Dispatch’s notification was admissible as a present sense impressi on. The defense is not arguing the truth of the matter asserted and accordingly, the information is not hearsay. The Government has conceded authenticity of the radio run. The defense is not trying to prove the prior criminal contact, it is proving what was told to Officer Dupree, regardless of whether it was true or not, which is6 was for burglary) would not be allowed; Defendant acknowledged this via email, staƟng that he would redact the radio run to remove any such references.

Second, Defendant argues that these communicaƟons contain Defendant Dupree’s present sense impressions. Under Federal Rule of Evidence 803, “[a] statement describing or explaining an event or condiƟon, made while or immediately aŌer the declarant perceived it,” is not excluded by hearsay “regardless of whether the declarant is available as a witness.” Fed. R. Evid. 803(1). The advisory commiƩee notes explain that “[t]he underlying theory of [this excepƟon] is that substanƟal contemporaneity of event and statement negate the likelihood of deliberate or conscious misrepresentaƟon.” Fed. R. Evid. 803(1) adv. comm. notes. The subject maƩer of any statement under the present sense impression excepƟon is limited “to descripƟon or explanaƟon of the event or condiƟon, the assumpƟon being that spontaneity, in the absence of a startling event, may extend no farther.” Id. Taken together, the statement must describe or explain an event or condiƟon, which the declarant perceived firsthand, which was made contemporaneously – either during or immediately thereaŌer the event or condiƟon. United States v. Wills , Case No. 18-0117 (PLF), 2018 WL 6716096, at *4 (D.D.C. Dec. 21, 2018). These elements must be proven by a preponderance of the
evidence. See Gilmore v. PalesƟnian Interim Self-Gov't Auth. , 53 F. Supp. 3d 191, 201 (D.D.C. 2014) (GK). The Court notes that the Government cites case law related to the excepƟon of excited uƩerance, which is a different excepƟon under Rule 803 that contains different requirements and is therefore inapplicable
here. See Fed. R. Evid. 803(2).

Defendant does not state which statements captured on the radio run communicaƟons would qualify as present sense communicaƟons, nor does he explain how each element is saƟsfied. While Defendant is correct that “courts across a mulƟtude of jurisdicƟons... have collecƟvely concurred that audio tapes and wriƩen logs of 911 calls, telephone calls, and police dispatches are admissible under the present sense impression and excited uƩerance excepƟons to the hearsay rule,” United States v. Morrow , No. 04–355 (CKK), 2005 WL 3163803, at *3 (D.D.C. June 9, 2005), this Court cannot do the same without knowing what the statements are and, therefore, whether they saƟsfy the elements. Defendant has stated that the communicaƟons include Defendant noƟfying dispatch of OC deployment and requesƟng EMS to arrive on the scene; such a noƟficaƟon and request do not seem to saƟsfy the elements. Similarly, Defendant has stated that the communicaƟons include dispatch informing Defendant of T.S.’s prior, which also does not saƟsfy the elements. Defendant says that the communicaƟons “contain[] Officer Dupree’s present sense impressions,” but does not include any
addiƟonal informaƟon. The Court ORDERS Defendant to provide informaƟon regarding which statements they seek to admit under the present sense impression excepƟon to hearsay and to explain how such statements saƟsfy the required elements by 7:15 pm tonight . Government may respond by 7:15 am

tomorrow

.

Separately, the Court also ORDERS Defendant to indicate if and how he would plan to admit the radio run communicaƟon “captur[ing] Mr. Sinclair screaming in the background,” including which witness would be used to admit this, how T.S.’s voice would be idenƟfied, and how that evidence would be used by 7:15 pm tonight . Government may respond by 7:15 am tomorrow

.

Finally, in addiƟon to the redacƟon of the nature of T.S.’s prior arrest, the Court notes that Defendant’s introducƟon of any radio run communicaƟons would be limited to that involving T.S.’s traffic stop and not those “concerning the unrelated calls” that the Government references.

From: Patel, Sanjay (CRT) < > Sent: Tuesday, June 4, 2024 12:30 AM8 C hambers:

In advance of tomorrow, below is the issue that the defense sought to raise earlier today:

As of last Friday’s Pretrial Conference, the Government had identified the radio run communications relating to the traffic stop of Mr. Sinclair by Officer Dupree on August 4, 2019 as a Government trial exhibit. The Government identified this Exhibit as GX200. The Defense also sought to admit the same radio run as Defense Exhibit 1. On Sunday, June 2, 2024, the Government produced amended exhibits. GX 200 became another exhibit and the radio run was no longer listed as a Government exhibit. The defense immediately sought confirmation of whether the Government was no longer seeking to admit the radio run and confirming that the Government did not oppose introducing the same exhibit that was on its exhibit list only hours earlier.

Earlier today, before jury selection, the Government notified the defense for the first time that it opposed the introduction of the radio run into evidence as hearsay. The radio run contains Officer Dupree’s present sense impressions and (in certain instances) also captures Mr. Sinclair screaming in the background at the parties. The radio run also contains dispatch informing Officer Dupree that Mr. Sinclair has a prior out of PG County conviction. The radio run also confirms that Officer Dupree notified dispatch of OC deployment and requested the Board (EMS) to arrive on scene. Pursuant to the Court’s Order, the defense plans to redact the radio run in two instances to remove the nature of the prior contact: “burglary in the second degree.”

Notwithstanding the Government’s objection to the admissibility of an exhibit that it was seeking to admit itself last Friday, a radio run does not contain inadmissible hearsay. Dispatch’s notification of a prior criminal contact for Mr. Sinclair is offered to show its effect on Officer Dupree, as well as, his state of mind when dealing with Mr. Sinclair. The communications on scene by Officer Dupree’s are his present sense impressions. See

, e.g. , Flythe v. District of Columbia , 4 F. Supp. 3d 222, 233-34 (D.D.C. 2014) (admitting officer’s statements on radio run as present sense impressions and excited utterances); United States v. Morrow , No. 04-cr-355-CKK, 2005 WL 3163803, at *3 (D.D.C. June 9, 2005) (“[C]ourts across a multitude of jurisdictions . . . have collectively concurred that audio tapes and written logs of 911 calls, telephone calls, and police dispatches are admissible under the present sense impression and excited utterance exceptions to the hearsay rule”); United States v. Cooper , No. 19-cr- 159 (ARR), 2019 WL 5394622, at *3 (E.D. N.Y. Oct. 22, 2019) (admitting officer’s radio run statement as a present sense impression, i.e. , “[j]ust tried to pull over New York Tags [JCS]8861 in a black hatchback. Subject tried to attempt to hit me. He’s now driving east on Belt Parkway, east of Rockaway Parkway.”)

This same rationale is the basis for how the Government is seeking to admit the various statements of the parties present at the scene as captured in Body Worn Camera (“BWC”) video and iPhone video recordings.

Regards,

Christopher Macchiaroli, Esq. Partner

Silverman, Thompson, Slutkin & White LLC 1775 I Street, NW, Suite 1150 Washington, DC 20006

www.silvermanthompson.com(1) “Officer Dupree’s immediate notification that he initiated a traffic stop on Mr. Sinclair and the providing of his license plate to Dispatch.”

T ranscription for timestamp 00:00 to 00:24 Dupree : This is Fairmount Heights 4. Dispatc h 1 : Fairmount Heights 4. Dupree: I got a traffic stop for you when you’re ready. Dispatch 1: Go ahead. Dupree: You can make it, uh, Eastern and Sheriff. It’s going to be on a DC tag of, uh,
Tom – Ocean – Union – Charles – Henry – Edward – Number 1, displayed on a white Chrysler 300 [ unintelligible ].

E stimated time of events: 1:14 am , Report of Investigation, Table 1 to Incident Report, US4810.

T ranscription for timestamp 02:43 to 03:30 Dupree: This is Fairmount Heights 4. 10- 29 10 -42 when you’re ready. Dispatch 1: Go ahead. Dupree: 10- 29 for a [unintelligible] male. Last of Sinclair, first of Torrence. Tom – Ocean – Robert – Robert – Edward – Noah – Charles – Edward. Middle of Ellis. Date of birth is going to be [redacted] break. DC Soundex is going to be 3-6-8-2-5-9-4. Dispatch 1: 29 negative. Has a prior in Montgomery for second degree burglary . 42 is

va lid through DC. Dupree: This is Fairmount Heights 4. Dispatch 1: Go ahead. Dupree: I missed that return. Dispatch 1: 29 negative. There’s a prior in Montgomery for second degree burglary. 42

t hrough DC is valid.

E stimated time of events: A definitive actua l time cannot be provided as there is no document in discovery confirming the actual re al time of the event as the time elapsed from radio run does not correlate with actual time.

(2) “Officer’s Dupree’s notification that he needed backup”

T ranscription for timestamp 00:54 to 01:04 Dupree: This is Fairmount Heights 4. Dispatch 1: Go ahead. Dupree: [ Unintelligible ] unit [ unintelligible ]. Dispatch 1: Unit to back Fairmount Heights for Eastern and Sheriff.

E stimated time of events: As discussed ab ove, no definitive actual time ca n be provided.

(3) “Officer’s Dupree’s notification of OC deployment and need for ‘fireboard’ (EMS)”

T ranscription for timestamp 15:31 to 16:00 Attachment

to Defendant's email from June 5, 2024 at 7:07 pm (page 1/2)D upree: Fairmount Heights 4. Dispatch 2: Uh, D3, do you copy? Dispatch 1: [ Unintelligible]

. Dispatch 2: And, I’m sorry, the last [unintelligible] that was came up, try it again. Fairmount Heights 4, was that you? Dupree: [Unintelligible] Fireboard [unintelligible ] OC deployment. Dispatch 2: Copy, OC deployment.

E stimated time of events: 2:01- 2:03 am ,

• 2:03 am , Report of Investigation, Table 1 to Incident Report, US4810 ;

• 2:01:57 a .m, Body Wo rn Camera Video of MPD Officer Lancelot Francioni , G X 10 1 at 23:45 play time, sh owing universal time of 2:01:57, di spatc h communication with Officer Dupree following deployment of OC spray.

I n response to the Court ’ s question, the time displayed on the radio run chart is the time duration on the radio run, which does no t directly correlate with the actual real time. Attachment to Defendant's email from June 5, 2024 at 7:07 pm (page 2/2)Attachment to Defendant's email from June 4 , 2024 at 7: 29 pm (page 1/ 3 )Attachment to Defendant's email from June 4, 2024 at 7:29 pm (page 2/3)Attachment to Defendant's email from June 4, 2024 at 7:29 pm (page 3/3)