Sutton Motion For New Trial

Case 1:21-cr-00598-PLF Document 449 Filed 02/27/23 Page 1 of 71
UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA :

:
v. : Case No. 21-cr-598-PLF-01
:
TERENCE SUTTON and : Hon. Paul L. Friedman
ANDREW ZABAVSKY, :
:
Defendants. :
TERENCE D. SUTTON, JR.’S MOTION

FOR A NEW TRIAL AND ARREST OF JUDGMENT
Defendant Terence D. Sutton, Jr., by and through counsel, HANNON LAW GROUP,
LLP, respectfully moves, in addition to granting his Motion for Judgment of Acquittal filed here-
with, to arrest the judgment pursuant to Fed. R. Crim. P. 34 or, in the alternative, to set aside the
verdict and grant him a new trial pursuant to Fed. R. Crim. P. 33. In support of these motions,
Ofc. Sutton presents the following:
INTRODUCTION
The government’s theory of criminal liability in this case is unprecedented in both federal
courts and state courts nationwide. The government conceded the point.1 Then the government
1
The government admits this in its Opposition to our Motion to Dismiss:
The government does not dispute that those precedents [Supreme Court cases] set
the constitutional standard for officers’ use of force to seize civilians in highspeed
chases; indeed, if defendant Sutton were charged with violating 18 U.S.C. §
242, these cases would be relevant here. Here, however, no such seizure is
alleged. As a result, those precedents simply do not speak to the applicable legal
standard, which is instead applied by D.C.’s own proscriptions on an officer’s on
duty conduct.
Govt. Opp. to Mot. to Dismiss [ECF No. 206] at 12.

argued and the Court adopted, as a fundamental legal foundation for the prosecution, that Ofc.
Sutton should be denied the right to introduce evidence and to argue that his conduct was reason-
able under the Constitution of the United States, precedent of the United States Supreme Court,
and the principles of Constitutional Policing (a term we will use throughout this pleading) that
have been in effect nationwide since at least Graham v. Connor, 490 U.S. 386 (1989).
In addition, to achieve jurisdiction in this federal District Court, the United States Attor-
ney’s Office (“USAO”) created a pretext that its investigation was predicated on the possible
commission of a federal civil rights violation. The pretext was authored by Assistant United
States Attorney Ahmed Baset and used by the USAO to charge Obstruction of Justice under the
United States Criminal Code. This federal count was the only count for which federal jurisdic-
tion exists. The USAO refused to provide evidence – and the Court endorsed this refusal – that
the Civil Rights Division of the Department of Justice (“DOJ”) had authorized the filing of the
Indictment in this case. Pursuant to longstanding DOJ Policy, this investigation and prosecution
of a law enforcement officer should have been coordinated with the DOJ Civil Rights Division,
the unit responsible for ensuring uniformity in the prosecution of use of force cases nationwide.
Law enforcement departments all over the nation rely on DOJ to ensure uniformity in such in-
vestigations and prosecutions, as well as in the training of law enforcement officers.
ARGUMENT
I. ARREST OF JUDGMENT FOR LACK OF JURISDICTION
Fed. R. Crim. P. 34 provides that “upon the defendant's motion or on its own, the court
must arrest judgment if the court does not have jurisdiction of the charged offense.” The Rule is
mandatory.
2
A. STANDARD OF REVIEW
A “motion in arrest of judgment must be based upon failure of the indictment to charge
an offense or upon a finding that the court is without jurisdiction of the offense.” United States
v. Whitted, 454 F.2d 642, 646 (8th Cir. 1972); United States v. Rosenberg, 195 F.2d 583, 603 (2d
Cir. 1952). Under Federal Rule of Criminal Procedure 34, a motion in arrest of judgment is to be
granted based on the record in the case. The record – for purposes of a Rule 34 motion – con-
sists of the indictment, the plea, the verdict, and where relevant the sentence. United States v.
Mackie, 2017 WL 512787 *2 (N.D. Cal. 2017). If the Court does not have subject matter juris-
diction over the offense charged, the judgment is void. In re Bonner, 151 U.S. 242, 257 (1894).
Subject matter jurisdiction can never be forfeited or waived. United States v. Cotton, 535 U.S.
625, 630 (2002).
B. OBSTRUCTION OF JUSTICE
In a nutshell, the Indictment alleges that Ofc. Sutton knew that Hylton-Brown was mor-
tally injured in the collision with the Scion and knew that he had engaged in an impermissible
Vehicular Pursuit in violation of MPD General Orders. These two “truths” required the jury to
find that Ofc. Sutton had violated two MPD General Orders: “Traffic Crash Reports, 401.03”
and “Vehicular Pursuits, 301.03.” Both determinations are completely subjective and incapable
of proof. From these “truths”, the Indictment and the prosecution argued that Ofc. Sutton ob-
structed justice. He did so, the theory of the Indictment goes, by insisting he had not engaged in
a pursuit and by describing the visible injuries to Hylton-Brown, in a DRAFT PD-10, as lacera-
tions. The Indictment described the visible injuries as “a gash on his face.” Indictment [ECF
No. 1] at ¶. Then the theory goes on to transforms these “truths” into Obstruction of Justice,
simply because the Watch Commander later opined there was a pursuit (because he saw Ofc.
3
Sutton following on a one-way street),2 and the officers at the Fourth District later learned that
Hylton-Brown’s injuries were mortal.
The facts alleged in the Indictment were known to everyone on the scene that night – as
well as to IAD Investigator Joseph Della Camera and Major Crash Investigators Jeffrey Folts and
Victor DePeralta. Those facts – both alleged and proven at trial -- are that Hylton-Brown was
riding a moped without a helmet, “driving crazy” in the words of MPD CST Officer Carlos
Tejera.3 Della Camera, Folts and DePeralta watched the BWC of Tejera that night, and they all
saw Hylton-Brown brake and turn left into the path of the Scion. They all saw that the CST ve-
hicle stopped 24 feet away from the point of impact. Tr. Transcript 11/30/2022 PM at 11 (Lang-
ley). From the allegations on the face of the Indictment, there is no implication that either Ofc.
Sutton or Lt. Zabavsky, or any other officer, had used force against Hylton-Brown which could
constitute a federal civil rights violation as charged in the Indictment.
1. Proof of a Federal Offense is an Element of Obstruction of Justice and

the Absence of Proof of a Federal Offense Deprives the Court of Juris-
diction.
In relevant part, 18 U.S.C. § 1512(b)(3) defines obstruction of justice as “engag[ing] in
misleading conduct toward another person, with intent to ... hinder, delay, or prevent the com-
munication 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) (emphasis
supplied). Thus, to obstruct justice in violation of § 1512(b)(3), a defendant must knowingly,
willfully and with specific intent (1) engage in misleading conduct toward another person, (2)
2
Tr. Transcript 11/17/2022 AM at 79.
3
4
with the intent to hinder, delay or prevent the communication of information to a federal official,
(3) about the commission or the possible commission of a federal crime. United States v. Ronda,
455 F.3d 1273, 1284 (11th Cir. 2006) (citing United States v. Veal, 153 F.3d 1233, 1253 (11th
Cir. 1998)).
Count Three of the Indictment in this case reads in relevant part as follows: “Between
October 23, 2020, and October 24, 2020, in the District of Columbia, the defendants,... aiding
and abetting each other, knowingly engaged in misleading conduct toward another person, and
attempted to do so, with intent to hinder, delay, and prevent the communication to a law enforce-
ment officer of the United States information relating to the commission of a Federal offense—
that is, SUTTON and ZABAVSKY hid from MPD officials the circumstances of the traffic colli-
sion leading to Karon Hylton-Brown’s death, to prevent an internal investigation of the incident
and referral of the matter to federal authorities for a criminal civil rights investigation.” Indict-
ment [ECF No. 1] at ¶ 50. (Emphasis supplied).
The failure of the Indictment to allege sufficient facts to prove that Ofc Sutton knowingly
engaged in misleading conduct, intended to hinder or delay the communication of information to
a federal officer regarding the possible commission of a federal offense deprives this Court of ju-
risdiction over the prosecution. This jurisdictional requirement was discussed by the Supreme
Court in United States v. Fowler, 563 U.S. 668 (2011):
[T]he Government must show more than the broad indefinite intent we
have described, the intent to prevent communications to law enforcement officers
in general.
* * * *
That is so because to allow the Government to show no more than the broad in-
definite intent we have described (the intent to prevent communications to law en-
forcement officers in general) would bring within the scope of this statute many
instances of witness tampering in purely state investigations and proceedings,
thus extending the scope of this federal statute well beyond the primarily federal
area that Congress had in mind.
5
Id. at 674-755. Justice Breyer explained that “one cannot act with an ‘intent to prevent’ some-
thing that could not possibly have taken place regardless.” Id. at 674. He explained the statute
with the following example:
We can speak of a Colorado trout fisherman who tries to prevent his trout stream
from being invaded by pike or carp, but in ordinary circumstances we cannot
speak about trying to prevent the stream's invasion by whales.
Id. at 674-75.
2. No Civil Rights Violation Occurred Upon the Facts Alleged.
The government has conceded in its papers and by not charging Ofc. Sutton with a civil
rights violation that the facts alleged in the Indictment – and known to everyone at the time of
Ofc. Sutton’s allegedly obstructive conduct -- indicate that a prosecution for a federal civil
rights violation was impossible. Although the Court would not permit Sr. Sgt. Brian Bray to tes-
tify that the USAO has never charged a civil rights violation on these facts, nevertheless, it is
true as a matter of law that such a prosecution is impossible on the face of the Indictment. Such
a prosecution is the whale that Justice Breyer described.
While the record for purposes of a Rule 34 motion does not include the evidence in the
case, the government presented no evidence whatsoever from which either the Court – as a juris-
dictional issue – or the jury as an element of the offense could conclude that Ofc Sutton’s alleg-
edly obstructive conduct related to a federal offense. At trial, the Court took a “hands-off” ap-
proach to this issue, believing that the discretionary authority of the local United States Attorney
to charge either a U.S. Code offense or a D.C. Code offense does not require such proof. At one
point, the Court expressed its belief that the USAO predicated its jurisdictional argument on
6
Murder in the Second Degree being a federal offense, no doubt based on AUSA Baset’s declara-
tion in his opening statement that Ofc. Sutton covered up a “murder.” On this reasoning, anyone
interfering with any investigation of the U.S. Attorney’s Office is committing a federal offense.
This is a jurisdictional issue, and Congress is clear on the circumstances upon which the
USAO may prosecute D.C. Code offenses in this Court. See D.C. Code § 11-502(3). This case
is not one of them. As a consequence, the Court had no authority to adjudicate the case, and the
verdict of the jury is void.
3. The United States Attorney Abused His Authority
Congress – as well as Earl Silbert – worked mightily to enact Home Rule for the District
of Columbia. This delicate piece of comprehensive legislation granted to the United States At-
torney the duty to prosecute serious D.C. Code offenses in the newly created Superior Court.
Congress also granted the U.S. Attorney the power to bring D.C. Code offenses in the local fed-
eral court under limited circumstances. D.C. Code § 11-502(3). The U.S. Attorney has abused
his discretion by including the federal offense of obstruction of justice in the Indictment. This is
obvious for three reasons: obstruction of justice is available as a criminal charge in the Superior
Court; no case law justifies federal jurisdiction of the obstruction charge on the facts of this case;
and, the U.S. Attorney has chosen to decline to produce to the Court evidence that the Civil
Rights Division of DOJ approved both the initiation of the criminal investigation and the actual
Indictment in this case. Furthermore, the Court may consider that the government relied on the
hearsay statements made by AUSA Baset to its in-house criminal investigator, SA Sean Ricardi
and to IAD Investigator Della Camera, in evaluation of its motives. No documents reflecting the
opening of a civil rights investigation by the USAO, the FBI or the USAO were produced. In ad-
7
dition, the Court refused to require the government to produce the minutes of the grand jury pro-
ceedings. Those minutes would include statements to the grand jurors from the government re-
garding the nature of the crimes being pursued and considered by the grand jurors. Those
minutes would reflect whether a federal civil right investigation was opened formally before the
grand jury, and when if at all, such an investigation was abandoned.
This abuse of discretion prejudiced Ofc. Sutton. This Court may now revisit its denials
of Ofc. Sutton’s motion to dismiss the obstruction count [ECF No 188], and Ofc. Sutton’s mo-
tion for reconsideration [ECF No. 250].
C. MURDER IN THE SECOND DEGREE
Because the U.S. Attorney improperly joined in the Indictment the D.C. Code offense of
Murder in the Second Degree in the Indictment with the federal offense of Obstruction of Justice,
there was no federal jurisdiction of the D.C Code offense ab initio. Where such offenses are not
actually joined in a criminal case that proceeds to trial and conviction in this Court, the subse-
quent conviction on D.C. Code offenses must be vacated. See United States v. Koritko, 870 F.2d
738 (D.C. Cir. 1989).
D. CONSPIRACY
Conspiracy is a distinct offense from the underlying offense which is its object. See
United States v. Cisneros, 26 F.Supp.2d 24, 50 (D.D.C. 1998) (“The question is not whether or
not the Indictment alleges the underlying crime adequately but whether the Indictment alleges a
conspiracy to commit the underlying crime”). Where conspiracy is the “gist of the crime,” the
government must sufficiently identify the offense which the defendants conspire to commit.”
United States v. Cobb, 905 F.2d 784, 791 (D.D.C. 1990) (quoting Wong Tai v. United States, 237
U.S. 77, 81 (1927)).
8
In this case, the government specifically identified the federal offense of obstruction of
justice as the target offense for the conspiracy. From this analysis, it follows that where there is
no jurisdiction over the target offense, the Conspiracy count must fall.
II. NEW TRIAL IN THE INTERESTS OF JUSTICE
Under the Constitution the United States Attorney has discretion to determine what
criminal cases to charge with the concurrence of a grand jury. The accused has even more sub-
stantial constitutional rights to challenge the exercise of prosecutorial discretion by the U.S. At-
torney. In its investigation of the death of Karon Hylton-Brown, the U.S. Attorney chose to
prosecute these police officers on a theory of criminal liability never before tested in a federal
court or state court. That is his choice.
The theory of criminal liability has three major unprecedented components: (1) Ofc. Sut-
ton did not violate any restrictions on his conduct mandated by the principles of Constitutional
Policing; (2) Karon Hylton-Brown bears no responsibility for his voluntary conduct: his choices
are excused by the actions of law enforcement officers; and (3) a law enforcement officer can be
convicted of criminal conduct based on his violation of general polices of his own department.
The Court elected to adopt the government’s theory of criminal prosecution, and reject at
every step Ofc. Sutton’s reliance on Constitutional Policing and “longstanding fundamental prin-
ciples of our criminal justice system that we do not punish individuals for the independent, vol-
untary actions of others.” Fleming v. United States, 22 A.3d 213, 236 (D.C. 2020) (en banc)
(Easterly, J. concurring). Had the Court seen the case as Ofc. Sutton does, the Indictment would
have been dismissed. The Court chose to give the government its unique day in court.
9
Now that this unprecedented prosecution theory has proceeded through pretrial motions,
a trial, and a verdict of guilt, it is only just for the Court to review all that has transpired to deter-
mine whether the outcome complies with the fundamental “interest of justice.”
A. STANDARD OF REVIEW
Rule 33 of the Federal Rules of Criminal Procedure requires a trial court to grant a new
trial “if the interest of justice so requires.” Fed. R. Crim. P. 33(a). “Such a standard requires the
district court to balance the alleged errors against the record as a whole and evaluate the fairness
of the trial.” United States v. McBride, 862 F.2d 1316, 1319 (8th Cir. 1988).
The Sixth Circuit aptly describes the process: “[t]he cumulative effect of errors that are
harmless by themselves can be so prejudicial as to warrant a new trial.” United States v. Sypher,
684 F.3d 622, 628 (6th Cir. 2012), cert. denied, 568 U.S. 1256 (2013)). As such, “[t]o warrant a
new trial . . . the cumulative effect of the errors must have deprived [the defendant] of a trial con-
sistent with constitutional guarantees of due process.” Id. (citing United States v. Hernandez,
227 F.3d 686, 697 (6th Cir. 2000). The Eight Circuit has also recognized a trial court’s authority
to grant a new trial “in the interest of justice” when a trial court believes “the cumulative impact
of the [] errors resulted in a serious violation of [a defendant’s] right to a fair trial.” McBride,
862 F.2d at 1319.
B. THE COURT DENIED OFC. SUTTON THE DEFENSE OF

REASONABLE CONDUCT UNDER THE CONSTITION.
During the nearly year-long investigation by the government into the death of Hylton-
Brown, the District of Columbia saw an outpouring of violent and orchestrated protest against
the Metropolitan Police Department and Ofc. Sutton, as well as violence throughout the nation
arising from the deaths of other black men in the United States. See Appendix A to Ofc. Sutton
Motion to Dismiss Under Rule 12 [ECF 189-2]. The Department of Justice as an institution
10
promises that the prosecution of these cases is reviewed at the highest level. Cases involving use
of force by law enforcement in violation of constitutional rights are deemed cases of “national
interest.” Justice Manual 8-3.130. The Department of Justice also requires that in such cases,
close coordination take place between the local U.S. Attorney’s Offices and DOJ’s Civil Rights
Division because of “the desirability of uniform application of federal law in this field.” Justice
Manual at 8-1.010. In Ofc. Sutton’s case, the government refused to advise the Court whether
this high level review occurred.
Neither the government nor Ofc Sutton have found a case, federal or state, where a law
enforcement officer has been criminally prosecuted for common law homicide where the officer
was not alleged to have violated the constitutional rights of the decedent. The government’s ini-
tial response to the singularity of this prosecution was to direct the Court to several notorious
state prosecutions identified in footnotes 1-8 to the Government’s Opposition to Ofc. Sutton’s
Fourth Motion to Compel, [ECF No. 148] at 4. However, in every one of those cases, the state
prosecutors were obliged to prove that the officer’s use of force was unreasonable under Graham
v. Connor, 490 U.S. 386 (1989), or violated another constitutional right of the accused.
This is a universal defense in the prosecution of law enforcement officers in state courts.
“Every American jurisdiction recognizes some form of law enforcement authority justification.”
2 P. Robinson, Criminal Law Defense § 142 at 1 and fn. 1 (July 2021 Update). See also fn. 1 to
Ofc. Sutton’s Motion to Dismiss the Indictment [ECF No. 188] at 4. The same is true of the
prosecution of officers in federal courts under 18 U.S.C. § 242 for deprivation of civil rights.
These constitutional standards should have been applied to the common law homicide
charge against Ofc. Sutton. Were he charged under 18 U.S.C. § 242, these standards would ap-
ply and an Indictment alleging the same facts would be dismissed under Fed. R. Crim. P.
11
12(b)(3)(B)(v). Similarly, the same outcome would obtain in every State of the Union under the
“law enforcement authority justification” enacted by statute or case law in those jurisdictions.
See Rachel Harmon, The Law of Policing at 405.
The District of Columbia courts, Congress, and the City Council have never endorsed the
theory of prosecution represented by this case. Should this case become a standard, it will have
far-reaching and enormously costly effects on law enforcement. This new standard would up-
end the standard of Constitutional Policing that emanated from the Supreme Court’s decision in
Graham v. Connor, 490 U.S. 386 (1989).
Nevertheless, there has not been silence on this question. Congress acting before Home
Rule, and later the D.C. City Council, have touched on constitutional defenses for certain law en-
forcement officers, but not embraced them in the same manner as the federal government or the
states. Prior to October 23, 2020, the District of Columbia City Council through emergency leg-
islation, which remains in effect today under emergency authorization set to expire on March 23,
2023, legislated a version of the “law enforcement authority justification” in the “Comprehensive
Policing and Justice Reform Emergency Amendment Act of 2020,” which was initially enacted
on July 22, 2020. In relevant part, the applicable portion of this legislation provides:
(b) A law enforcement officer shall not use deadly force against a person unless:
(1) The law enforcement officer reasonably believes that deadly force is immedi-
ately necessary to protect the law enforcement officer or another person, other than the
subject of the use of deadly force, from the threat of serious bodily injury or death;
(2) The law enforcement officer's actions are reasonable, given the totality of the
circumstances; and
(3) All other options have been exhausted or do not reasonably lend themselves to
the circumstances.
(c) A trier of fact shall consider:
(1) The reasonableness of the law enforcement officer's belief and actions from
the perspective of a reasonable law enforcement officer; and
12
(2) The totality of the circumstances, which shall include:
(A) Whether the subject of the use of deadly force:

(i) Possessed or appeared to possess a deadly weapon; and
(ii) Refused to comply with the law enforcement officer's lawful
order to surrender an object believed to be a deadly weapon prior to the
law enforcement officer using deadly force;
(B) Whether the law enforcement officer engaged in de-escalation

measures prior to the use of deadly force, including taking cover, waiting
for back-up, trying to calm the subject of the use of force, or using non-
deadly force prior to the use of deadly force; and
(C) Whether any conduct by the law enforcement officer prior to the use
of deadly force increased the risk of a confrontation resulting in deadly
force being used.
D.C. Code § 5-351.01.
This emergency legislation in force in October of 2020 is an expression of the City Coun-
cil that in enforcing the laws, MPD officers enjoy virtually the same protections as established in
Graham v. Connor and other cases reflecting the standards for constitutional policing. This is
clear from the language of subsection (c) which notes the factors “the trier of fact” must con-
sider. However, because the Indictment in this case does not allege that Ofc. Sutton used
“deadly force,” he could not avail himself of this statutory defense.
Moreover, the District of Columbia has long had on the books other code provisions
which consider whether a police officer is subject to criminal prosecution. D.C. Code § 5-
123.02 provides: “Any officer who uses unnecessary and wanton severity in arresting or impris-
oning any person shall be deemed guilty of assault and battery, and, upon conviction, punished
therefor.”
As a matter of both notice and statutory construction, the Court should have viewed this
statute, as well as the recent emergency legislation, as occupying the field in terms of criminali-
13
zation of a police officer’s conduct occurring during the course of his employment. The govern-
ment argued that all common law crimes that are codified in the District of Columbia apply to
police officers, including Murder in the Second Degree. Gov’t Opposition to Ofc. Sutton’s Fifth
Motion to Compel [ECF No. 165] at 9. The government is correct that when an officer is not
acting within the scope of his employment, common law crimes apply. However, where the City
Council codifies express criminal statutes related to conduct of law enforcement officers, that
constitutes the law that must apply when they are acting within the constitutional scope of their
employment. The government’s argument at the hearing on Ofc. Sutton’s motion to dismiss
should not alter this analysis. A police officer charged with bribery for accepting money to al-
low an unsafe dump truck to operate on the roads is not acting with the scope of his employment.
A police officer working undercover who accepts the same bribe is not committing any crime.
Ofc. Sutton is charged explicitly in this case with acting in derogation of his duties.
This tenet of statutory construction is also reflected in the D.C. Council authorization of
the use of deadly force by private corrections officers. See D.C. Code § 24-261.02. That statute
includes the following provision: “The use of either deadly force or non-deadly force by a pri-
vate correctional officer employed by the private operator shall at all times be governed by De-
partment of Corrections Order 5010.9, as such order may from time to time be amended or modi-
fied.” The current iteration of that Order is Department of Corrections Order 511.3 which also
applies to D.C. Correctional Officers and cites as authority Tennessee v. Garner, 471 U.S. 1
(1985), and Graham v. Connor, 490 U.S. 386, 395-97 (1989). Department of Corrections Order
511.3 [ECF No. 189-3] at 3.
A further expression of the legislative intent in the District of Columbia is reflected in the
“Revised Criminal Code Act of 2021.” The Revised Code was adopted by the City Council on
14
November 15, 2022, and includes a public authority justification for alleged use of force by po-
lice in § RCC 22E-402, which protects an officer from criminal liability where “The conduct
constituting the offense is required or authorized by law.” This provision is derived from the
Model Penal Code. The Revised Criminal Code is the product of the Criminal Code Reform
Commission established in 2006, which includes members of the United States Attorney’s Of-
fice. See https://ccrc.dc.gov/page/recommendations. See also Reply in Support of Ofc. Sutton
Motion to Dismiss Pursuant to Rule 12 [ECF No. 200] at 8-13.
As explained in a state prosecution, “[A]n officer [acting under the law enforcement au-
thority justification] must not be hamstrung by an impending fear of penalty and liability in pro-
tecting society from those who would feloniously disregard the rights of others . . . .” Reese v.
City of Seattle, 81 Wn.2d 374, 383, 503 P.2d 64, 71, cert. denied, 414 U.S. 832 (1972).
The application of these standards was very recently illustrated by Judge McFadden in
Bushrod v. District of Columbia, 521 F.Supp.3d 1 (D.D.C. 2021), a 42 U.S.C. § 1983 action
predicated on a shooting of the plaintiff by police. Judge McFadden first noted that the issue of
qualified immunity is a question of law for the court to decide, turning on the reasonableness of
the officer’s actions. Id. at 20. Applying Tennessee v. Garner, 471 U.S. 1 (1985), and Graham
v. Connor, 490 U.S. 386 (1989), Judge McFadden found the officer’s conduct to be constitution-
ally reasonable. 521 F.Supp.3d at 21. The key lesson in the case was Judge McFadden’s treat-
ment of the common law offenses of assault and battery. Applying precedent Judge McFadden
held that the officer was immune from liability for these claims because the officer’s conduct
was “constitutional.” Id. at 30.
If the conduct of Ofc. Sutton is constitutional, even under the jurisprudence construing 42
U.S.C. § 1983, it is constitutional in the face of a criminal prosecution.
15
Ofc. Sutton also argued that as a matter of statutory construction, the common law in
1901 did not encompass a charge of murder against a police officer or constable acting within the
scope of his authority. We have found no evidence that it was. See generally, Jeffrey S. Adler,
Shoot to Kill: The Use of Deadly Force by the Chicago Police, 1875–1920, 38 J. of Interdisc.
Hist. 233, 237 (2007); Marilynn Johnson, Street Justice: A History of Police Violence in New
York City 15–16 (2003); Mark H. Haller, Historical Roots of Police Behavior: Chicago, 1890–
1925, 10 L. & Soc’y Rev. 303, 317–320 (1976). See also Fleming v. United States, 224 A.3d 213,
239 (D.C. 2020) (en banc) (Easterly, J., concurring).
The government failed to undertake an assessment of whether the common law of the
District of Columbia in 1901 applied murder in the second degree to police officers. If the com-
mon law did not apply to officers acting within the scope of their duties, then the codified ver-
sion cannot be applied to Ofc. Sutton. Id.
1. Reasoning of the Government and the Court
In its Opposition to Ofc. Sutton’s Motion to Dismiss the Indictment [ECF No. 206], the
government’s argument was singularly focused on one claim: that the D.C. Code offense of Mur-
der in the Second Degree does not require the government to allege a constitutional violation. Id.
at 9-13. The argument, of course, is a truism without reasoning. The argument distracts the
Court from Ofc. Sutton’s contention. Any law enforcement officer charged with committing
murder in the course of his duties – as alleged in the Indictment – must be permitted to defend
the charge on the grounds that his conduct comported with his training: i.e., that his conduct was
reasonable under Supreme Court precedent which is the foundation of law enforcement training.
The government cannot embrace training on the MPD General Orders and reject training on
Constitutional Policing. In that event, the Metropolitan Police Department would be enacting
16
criminal laws in making policy decisions. The government never directly engaged this argu-
ment, other than to say the Indictment does not charge any constitutional violation.4
On the other hand, the government conceded that Ofc. Sutton’s conduct was constitution-
ally permissible:
[T]he defendant claims that Count One fails to state a criminal offense because
“there is no legal theory under which the lawful conduct of a police officer creates
liability of any kind on account of the flight of the suspect.” ECF 188 at 15.
While the government does not dispute the truth of this assertion, it is not an accu-
rate characterization of the allegations contained in the Indictment.
Gov’t Opposition to Motion to Dismiss [ECF No. 206] at 13. Nowhere did the government ex-
plain how an “accurate characterization of the allegations contained in the Indictment” would de-
feat this application of Supreme Court precedent.
The Court denied Ofc. Sutton’s Motion to Dismiss in all respects in an oral ruling. Hr.
Transcript 08/03/2022; Opinion and Order [ECF No. 215]. In ruling, the Court adopted the gov-
ernment’s characterization of Ofc. Sutton’s argument:
Mr. Sutton's argument is premised in part, in large part in the assertion that there's
no charge that Officer Sutton violated the constitutional rights of Mr. Hylton-
Brown. And because the indictment contains no facts from which a reasonable
jury could find that Officer Sutton engaged in conduct that violated the constitu-
tional rights of Mr. Hylton-Brown, he can't be prosecuted for murder.
Hr. Transcript 08/03/2022 at 5-6.
4
Nevertheless, the government primed SA Sean Ricardi to volunteer in his testi-
mony on direct examination that Ofc. Sutton was engaged in a “seizure” of Hylton-Brown. The
Court struck the testimony. Tr. Transcript 10/26/2022 PM at 56. This should demonstrate to the
Court the desperation of the government to establish a constitutional violation. Another example
was the government’s effort to describe a vehicular pursuit as a use of force through the testi-
mony of MPD Driving Instructor Carolyn Totaro. The Court originally forbade such testimony.
Tr. Transcript 11/15/2022 AM 4-13, and 27-28. Over objection the Court then allowed her to
testify that she teaches that a vehicular pursuit involves a use of force. Tr. Transcript 11/15/2022
PM at 11-12. We discuss later how allowing this testimony was error.
17
The Court also adopted the government’s mischaracterization Ofc. Sutton’s argument on
the standard of Constitutional Policing as follows:
Now the second major argument with respect to second degree murder --
one second, is Mr. Sutton's arguments based on a number of Supreme Court
cases, that he argues lead to an inescapable conclusion that as a matter of law no
police officer following a fleeing suspect can be criminally liable for the death of
a suspect who negligently drives in front of a third vehicle. He basis [sic] his ar-
gument in part on the United States versus Lanier 520 U.S. 259, "which said a
public officer must be given fair notice that his conduct is criminal before being
charged with a criminal offense."
And Mr. Sutton argues that applies whether it's a federal offense, DC
Code offense or whatever. He essentially argues that he's entitled to qualified
constitutional immunity as a law enforcement officer in that a police officer can't
be charged with common law murders. It's essentially what he's arguing.
Now the argument that he makes in this brief and makes earlier, makes an
earlier brief says that the government should have proceeded under the civil rights
action, 18 U.S.C. 242. I've said before that the government has the prosecutorial
discretion to decide what statute to proceed under. But what I'll say about Lanier
is that it really matters that Lanier was a case under 18 U.S.C. 242 instead of un-
der other statutes.
Id. at 11-12.
These were not arguments that Ofc. Sutton actually made. These are the government’s
characterization of Ofc. Sutton’s contentions. Later in pretrial hearings, the Court recognized
that Ofc. Sutton was asserting as a defense to the charges that he acted reasonably according to
his training in Constitutional Policing. Nevertheless, the Court consistently denied to Ofc. Sut-
ton the use of such a defense.
As a consequence, the government was permitted to rely on its unprecedented theory of
criminal liability upon which the Indictment was founded: Ofc. Sutton violated the standards of
his profession as expressed in MPD General Orders, which are not statutes, regulations, or law.
Ofc. Sutton on the other hand was not to be permitted to rely on Supreme Court precedents that
18
declare the safety of the public the paramount goal of policing, in counterbalance to the self-de-
structive conduct of the suspect of lawful police conduct. See Cases in Ofc. Sutton Motion to
Dismiss Under Rule 12 [ECF No. 188] at 10-17.
2. The Court Refused to Permit Experts to Opine on the Constitutional

Standard of Policing
Also as a consequence of this pretrial ruling, the Court prohibited in limine the proposed
expert testimony of Bruce-Alan Barnard, JD, LLM, simply because he is an attorney. Similarly,
the Court precluded the remaining experts from rendering opinions in Ofc. Sutton’s defense that
Ofc. Sutton’s conduct was reasonable under the portions of MPD’s own teaching curriculum,
which discuss Supreme Court standards. Former MPD Sgt. Michael Wear was precluded from
testifying to the very curriculum he authored on the subject of Constitutional Policing. Retired
Sgt. John Brennan was precluded from similarly opining on the elements of Constitutional Polic-
ing which underlie the law enforcement strategies of MPD Units which were the precursors of
the Crime Suppression Team. This ruling denied Ofc. Sutton a defense, and allowed the govern-
ment to take advantage of the Court’s placing the elements of Constitutional Policing out of
bounds in other ways we discuss further.
Moreover, while considering its ruling on whether experts could opine on Constitutional
Policing, the Court would caution the Parties that the Court is the final word on the law, and
would provide appropriate instructions on Terry v. Ohio, for example, to the jury. However, the
Court ultimately refused to instruct the jury on Ofc. Sutton’s right to conduct a Terry stop based
both on Supreme Court law and the MPD General Order 304.10, Field Contacts, Stops, and Pro-
tective Pat Downs. See Ofc. Sutton’s Special Jury Instruction No. 7 [ECF No. 403] at 5-6. The
jury was given no instructions as to how to determine the standard of care for MPD officers,
other than to be told that violation of MPD General Orders alone does not justify a guilty verdict.
19
Jury Instructions [ECF No. 435] at 17. And, finally, the jury was not required to find a violation
of an MPD General Order beyond a reasonable doubt. Tr. Transcript 11/02/2020 PM at 111.
a. Ofc. Sutton’s Expert Witnesses
Mr. Barnard besides being an attorney is also retired from the United States Air Force as
a Major, a former Special Assistant U.S. Attorney prosecuting over 100 criminal cases, an advi-
sor and senior instructor at the Federal Law Enforcement Training Center for eight years, and an
expert in providing law enforcement training since 2011. See Barnard C.V., Govt. Motion to Ex-
clude Experts [ECF No. 291-1] at 21. The Court’s exclusion of Mr. Barnard solely because he is
an attorney was an abuse of discretion, even if the Court’s pre-emption of his opinions based on
Constitutional Policing is sustained. Mr. Barnard should have been able to testify to the same
opinions given by Ofc. Sutton’s other experts, and certainly the equivalent of the government’s
retained expert Robert Drago. That is so because of his pre-eminent expertise as an instructor at
FLETC and a teacher and curriculum master in law enforcement procedures.
Retired Sgt. John J. Brennan in his voir dire illustrates the prejudice of the government’s
limitation on the principles of Constitutional Policing as a defense. Sgt. Brennan testified that in
his training and supervising his officers on national standards, he would adhere to “the law”:
meaning dictates of the Supreme Court on Constitutional Policing. Tr. Transcript 12/18/2022
AM at 41-4, 49-51. The Court’s adoption of the government’s limitation on this testimony, com-
bined with the government’s exclusive reliance on MPD General Orders as a standard of care,
distorted the actual standard of care applicable to policing. Sgt. Brennan would not be permitted
to testify about “the law.”
20
Constitutional Policing relies on defined principles that derive from Supreme Court cases
which are taught to MPD officers and law enforcement officers everywhere. The overall stand-
ard for police conduct is “judged from the perspective of a reasonable officer on the scene, rather
than with the 20/20 vision of hindsight . . . . [T]he ‘reasonableness’ inquiry in an excessive force
case is an objective one: the question is whether the officers' actions are ‘objectively reasonable’
in light of the facts and circumstances confronting them, without regard to their underlying intent
or motivation.” Graham v. Connor, 490 U.S. 386, 397 (1989). The jury was not allowed to
know this.
The government’s use of MPD General Orders as the only standard of care applicable in
this case, of course, requires the Court to enter judgment of acquittal as we argue in our compan-
ion motion for judgment of acquittal. If the government can identify competent evidence of “de-
praved heart” malice other than the alleged violation of MPD General Orders, then the verdict is
infirm for another reason. MPD General Orders do not have the same quality of definitiveness
as do the principles of policing based on Supreme Court precedent. As Sgt. Brennan testified,
the “books” and police conduct “on the street” are different. Tr. Transcript 12/08/22 AM at 42.
The MPD General Orders are “guidelines. Id. at 51; Tr. Transcript 12/08/2022 PM at 84. An of-
ficer’s balance of safety with the need to apprehend a suspect in a vehicular pursuit is subjective.
Id. at 26. An officer may choose not to follow a general order, which exposes the officer only to
potential administrative penalties. Id. at 59. An officer can violate traffic laws. In reality, a sin-
gle juror’s supposedly rational view of what constitutes a violation of MPD General Policy is as
subjective as that of any single officer. Consequently, the Court was correct to instruct the jury
that violation of a general order is insufficient to find guilt beyond a reasonable doubt on any
count of the Indictment. And the standard and the evidence do not support the verdict
21
b. Cross Examination of the Government’s Experts
Not surprisingly, the government had difficulties finding “experts” to testify on its behalf
in this case. The government’s only “standard of care” expert was MPD Driving Instructor Car-
olyn Totaro. Ofc. Totaro was recruited as an expert by prosecutors, due to the death of a legiti-
mate expert training instructor Herbert Bell. Tr. Transcript 11/15/2022 PM at 80-1. Ofc. Sut-
ton’s counsel was unable to cross examine very damaging testimony Ofc. Totaro regarding Govt.
Ex. 412B. Before Ofc. Totaro’s testimony began, the Court entertained Ofc. Sutton’s objection
and commented as follows:
I'm very much inclined to exclude the entire exhibit. [412B] This takes the dia-
gram that is one page and explains civil liability, has legal concepts, shocks the
conscience, whether you should sue or not sue, citing case law. That's out. It's
out, period.
Not only does it have the same stuff about use of force that I said you cannot
show the jury, but maybe I'll let you ask a few limited questions about it. This
goes into huge detail and it's not going to happen.
But it discusses case law in great detail, civil liability. It says, and by the way,
you could -- look at the Hoffman decision. It could be a $6 million verdict.
* * * *
But the use of force stuff is excluded for the same reasons as the others, and civil
liability material and discussion of civil, criminal, shocking the conscience, spe-
cific cases is out.
Id. at 28.5
In the afternoon, over objection, Ofc. Totaro was allowed to testify that Ofc. Sutton re-
ceived the following training:
5
Mr. Baset also tried to bring “use of force” into the case through the testimony of Robert
Drago. Tr. Transcript 11/03/2022 AM at 47-48.
22
Q So this part of the training [Govt. Ex. 412B, p. 243] also explains that if
the officer's conduct goes outside the bounds of the law, the officer could face
civil or criminal liability?
A Yes.
Tr. Transcript 11/15/2022 PM at 11. Ofc. Totaro was also permitted to testify regarding “use of
force” as follows:
Q So do you teach that the level of force increases or that the risk of the
pursuit increases as it goes on?
A The risk of the pursuit increases as it goes on.
Id. at 12.
Testimony on the “use of force” just like SA Ricardi’s reference to a “seizure” should not
have been permitted, regardless of whether training on Constitutional Policing was permitted.
And as a consequence of the Court’s prohibiting reference to Constitutional Policing and allow-
ing this testimony outside her field of expertise, Ofc. Sutton was denied the opportunity to con-
duct a fair cross examination of Ofc. Totaro. That cross examination would have pointed out –
from her own slides in some instances – that MPD officers are also taught the principles of Con-
stitutional Policing, including some of the very cases on vehicular pursuits which Ofc. Sutton
discussed in his Motion to Dismiss Pursuant to Rule 12 [ECF No. 188] at 11-17. Ofc. Totaro
would concede that under Supreme Court cases taught at the Academy on vehicular pursuits,
Ofc. Sutton’s conduct would be reasonable. When Ofc. Sutton’s counsel attempted to pursue
this line of questioning regarding an officer’s exposure to civil and criminal liability, the Court
cut off the questioning in limine. Tr. Transcript 11/16/22 PM at 19-21 (COURT: “This is a legal
collusion. It is an ultimate issue. Objection sustained”).
23
3. The Court Erred in Permitting the Government to Use in Evidence

the MPD General Orders Which Became the Only Basis for the
Standard of Care for the Defendants.
The government explicitly placed at issue the relevance of the Metropolitan Police De-
partment’s nearly twenty-year-old General Order on vehicular pursuits when it indicted this case
on September 23, 2021. The Indictment charged that Ofc. Sutton is guilty of Murder in the Sec-
ond Degree because he violated MPD General Orders. The MPD General Order ultimately be-
came the only standard by which the jury would be asked to determine whether Ofc. Sutton acted
in conscious disregard of an extreme risk of death and serious bodily injury to Hylton-Brown.
The Court erred in permitting the government to introduce evidence of the violation of MPD
General Orders.
On September 7, 2022, Ofc. Sutton filed his Motion in Limine to exclude the admissibil-
ity of MPD General Orders. [ECF No. 260]. No criminal case has permitted the use of general
orders or agency policies as evidence in a death case. Ofc. Sutton argued that MPD General Or-
ders are renditions of the general policies by which a department governs itself. Like the DOJ
Justice Manual, police policies cannot be relied upon by the general public to sue, prosecute, or
punish police. We pointed out the dilemma the government’s unprecedented theory of criminal
liability posed for the Court. On the one hand, Ofc. Sutton maintains that his conduct is to be
measured by the same standard of a reasonably prudent police officer as established in Graham
v. Connor, 490 U.S. 386 (1989). Application of that standard and/or rejection of the admissibil-
ity of the MPD General Orders would require dismissal of the Indictment. Thus, the government
in its charging theory gambled that the Court would adopt its unprecedented theory of criminal
liability.
24
We argued that the government failed to carry a coherent message to the Court as to how
an alleged violation of the MPD General Order is even relevant to the mens rea for Murder in the
Second Degree. Certainly, the government would have had a coherent argument prepared had
the prosecution been supervised by the Civil Division of DOJ as it should have been. Instead,
the government eventually turned to local civil cases arising from the District of Columbia Em-
ployee Non–Liability Act. See, e.g., ECF No. 165, at 5; ECF No. 231, at 7-9.
Specifically, the government relied on a couple of civil cases from the D.C. Court of Ap-
peals that address whether a jury can consider an officer’s compliance or non-compliance with a
general order in determining if the officer was grossly negligent in her driving while acting in the
scope of her police duties. These cases do not approach the mens rea required for Murder in the
Second Degree. Moreover, those cases at best indicate that an MPD General Order may be “a
factor” in a jury’s evaluation of gross negligence in a civil case. Duggan v. District of Columbia,
783 A.2d 563, 570 (D.C. 2001)) (Duggan I). That is exactly the standard the Court adopted.
The government misleadingly relied on Williams v. United States which unexceptionably stated
that there are three ways to establish malice aforethought for Second-Degree Murder: “(1) a spe-
cific intent to kill, (2) a specific intent to inflict serious bodily injury, or (3) ‘acted in conscious
disregard of an extreme risk of death or serious bodily injury to the decedent.’” Williams v.
United States, 858 A.2d 984 (D.C. 2004) (quoting Comber v. United States, 584 A.2d 26, 38-39
(D.C. 1990) (en banc)). The Court of Appeals did not express any endorsement of any eviden-
tiary rule permitting police policies to act as a standard or even evidence in a murder prosecu-
tion.
Moreover, the D.C. Court of Appeals has held that the course of conduct of a police of-
ficer – even assuming that general orders apply – which takes place earlier and remotely from an
25
accident is irrelevant to causation. The Court states that only that conduct which immediately
caused the accident is relevant. District of Columbia v. Walker, 689 A.2d 40, 46-7 (D.C. 1997).
Despite this expression of caution about the general orders from the local court, this Court per-
mitted the government to contend that violations no matter where they occurred demonstrate de-
praved heart malice, and that the jury cannot hold Hylton-Brown responsible in any way for his
own death.
In those jurisdictions that apply a gross negligence or similar standard in civil case, it ap-
pears that virtually all appellate opinions addressing vehicular police pursuits of suspected law
violators that ended in collisions between the pursued vehicles and vehicles of third parties hold
as a matter of law that the police conduct at issue did not constitute gross negligence or its equiv-
alent. Id. at 48. MPD’s General Orders do not even enjoy the dignity of a municipal regulation,
and as a matter of constitutional law officers may violate general orders without violating the
constitutional rights of the suspect. See Whren v. United States, 517 U.S. 806 (1996).
The government’s reliance on the MPD General Orders resulted in the same infirmities
which dissuaded several Circuit Court’s to forbid their use as evidence in federal civil rights
cases, both criminal and civil. The policies are not co-extensive with constitutional law, a viola-
tion is neither sufficient nor necessary to prove a constitutional violation, and policy-makers
would become arbiters of the meaning of the Fourth Amendment. See Ofc. Sutton Motion in
Limine [ECF No. 260] at 7-9.
26
4. The Court Prohibited Relevant Evidence of the Criminal Acts and

Conduct of Hylton-Brown.
Another calculated risk taken by the government in this novel prosecution was somehow
to avoid evidence of Hylton-Brown’s criminal conduct. There is no question of the incredible
scope of criminality in which this 20-year-old had engaged. Selling drugs was his job. This evi-
dence included the following, some of which was learned during trial:
Hylton-Brown’ Extensive Criminal Record in the District of Columbia and Montgomery

County. (Sutton Exhibit 301A, Major Crash Case Jacket; Exhibit 302E, IAD Investiga-
tive Report)
Hylton-Brown’s Appearance in Rap Video at Starlight at Fifth & Kennedy NW and else-
where: in which he flashes large amounts of cash; smokes marijuana blunts; poses with
handguns; mimics use of a handgun (Sutton Exhibits 101, 102, 103, 104)
The Presence of Oxycodone and high levels of THC in his body at the time of death
Hylton-Brown’s listing in the “4D CST Gang Crew Member Profiles” as a member of the
KDY Crew
The MPD Intelligence Unit denominating Hylton-Brown, pursuant to MPD General Or-
ders, as a Validated Gang Member in the MPD Intelligence Unit’s Gang Database
Hylton-Brown’s prior arrests for possession of handguns
Hylton-Brown’s secretion on the night of the incident of $3,128 in small bills in plastic
wrap around his legs under his sweatpants
Hylton-Brown on the night of the incident was wearing an ankle monitor in connection
with a Montgomery County case in which he assaulted his mother
Hylton-Brown on the night of the incident had failed to appear in a pending Superior
Court criminal case
On September 7, 2022, Ofc. Sutton filed a Motion in Limine to Permit Evidence regard-
ing most of this information. [ECF No. 257]. The issue was further the subject of litigation dur-
ing trial, as the fact that Hylton-Brown had secreted the $3,128 in cash under his sweat pants was
27
disclosed by the government before the testimony of the D.C. Fire Department EMT who at-
tended to Hylton-Brown. [ECF Nos. 383, 384, 386]. To highlight the adverse impact of the
Court’s rulings on the admissibility of this evidence, we note part of the rebuttal closing argu-
ment of Mr. Baset where he falsely portrays Hylton-Brown:
You don't get to just chase people in certain parts of the city on a hunch
because they have a criminal history or they have an arrest history or because
they're out after 10:00 p.m. or they're sitting on a corner where there's been drug
sales before or whatever it is. That's not how that works. That's not freedom,
when you can't even mind your own business and look for your own keys without
being bothered.
We don't know why Mr. Hylton-Brown decided to drive his moped away
from Mr. Sutton and Zabavsky when he saw them. We don't. We'll never know
what the reason was. And frankly, if you look at the video, we maintain that he's
actually not fleeing at all, and we don't even know -- it's speculative to say he left
because he saw Sutton and Zabavsky roll up, because it's some time after they roll
up that he decides to go up the sidewalk.
Tr. Transcript 12/14/2022 PM at 79-80.
The Court precluded most of this evidence after a hearing at which officers from the
Fourth District testified before the Court. The Court’s initial basis for its ruling is again adopted
from the government: the evidence constitutes “character assassination” in the parlance used by
the Court. During the hearings and again later at trial, the Court would ridicule evidence which
is routinely presented in this Court and the Superior Court by the government: rap videos in
which drug dealers pose with weapons and drugs; validated membership by the MPD Intelli-
gence Unit in gangs; and the full panoply of evidence relied upon by the government every day
in affidavits for search warrants and motions hearings.
Later, the Court also ruled that such evidence was not admissible at trial to evidence
Hylton-Brown’s motive to flee the police that night:
If this issue were before the Court on a motion to suppress under the
Fourth Amendment or as an effort to raise a qualified immunity defense under
28
Section 1983, things would be different. But as the Court has noted before, Mr.
Sutton "continues to try to fit a square peg into a round hole." Oral Ruling Tr. at
33:12. It doesn't work. Mr. Sutton has failed to provide a single legally articula-
ble reason why Mr. Hylton-Brown's motive to flee is relevant to his defense under
the D.C. second degree murder statute.
Opinion and Order [ECD No. 382] at 10.
There are four reasons why both the Court rulings are wrong. First, the government dealt
the cards: its theory of prosecution is a square peg in a round hole. Second, the Court accepted
the premise that the evidence of Hylton-Brown’s criminal conduct is character evidence. Once
the Court adopted that premise, the conclusion followed. The evidence is not character evidence.
Hylton-Brown is dead. If the evidence were character evidence, the government would never
win any suppression motions.
Third, even construed as character evidence, its admission poses no legal prejudice to the
government, nor is the government entitled to such a calculus. If the evidence besmirches the
character of Hylton-Brown, the government cannot stand in his shoes and benefit from it when
Ofc. Sutton’s constitutional rights are at stake. In short, the evidence is direct evidence which
has a tendency to prove an issue of relevance at trial. How can a suspects motive to flee be logi-
cally irrelevant to an officer’s decision to follow him, when criminal courts everyday lend some
credence to flight as arousing suspicion.
Fourth, the idea that Hylton-Brown’s motive to flee is irrelevant to Ofc. Sutton’s defense
is another declaration without reason. More importantly, the ruling denied Ofc. Sutton a de-
fense: he acted reasonably based on his training on Constitutional Policing.
a. Terry v. Ohio and MPD General Order 304-10
An officer may conduct a brief investigatory stop when the officer has a reasonable, artic-
ulable suspicion that criminal activity is afoot. Terry v. Ohio, 392 U.S. 1, 30 (1997). Reasonable
29
suspicion requires at least a minimal level of objective justification for making the stop. United
States v. Sokolow, 490 U.S. 1, 7 (1989); see also United States v. Lawing, 703 F.3d. 229, 236
(4th Cir. 2012) (“Reasonable suspicion is simply a particularized and objective basis for suspect-
ing the person stopped of criminal activity”) (internal quotations omitted).
When assessing reasonable suspicion determinations, the Supreme Court has directed re-
viewing courts “to look at the 'totality of the circumstances' of each case to see whether the de-
taining officer has a “particularized and objective basis” for suspecting legal wrongdoing.”
United States v. Arvizu, 534 U.S. 266, 273 (2002) (citing United States v. Cortez, 449 U.S. 411,
418 (1981)) (emphasis added). To look to the totality of the circumstances “allows officers to
draw on their own experience and specialized training to make inferences from and deductions
about the cumulative information available to them that 'might well elude an untrained person.'"
Id. Further, the Courts may also consider “facts communicated to [an officer].” See Carroll v.
United States, 267 U.S. 132, 161 (1925); see also Furlow v. Belmar, 52 F.4th 393, 411 (6th Cir.
2022) (“[T]he Supreme Court explained how one officer could pass probable cause on to an-
other.”) (internal citations omitted); see also United States v. Wills, 316 F.Supp.3d 437 (2018);
Hargraves v. District of Columbia, 134 F.Supp.3d 68 (D.D.C. 2015).
These standards required admission of the criminal background and criminal conduct of
Hylton-Brown on the night in question to explain both the conduct of the officers and that of
Hylton-Brown.
b. The Court’s Ruling Suppressed Truthful Testimony of

MPD Officers
Counsel for Ofc. Sutton was careful to apprise MPD officers called to testify in his case
of the parameters of the Court’s ruling. MPD IAD Agents attended almost every session of the
trial, and were present whenever an MPD officer or supervisor testified. Their presence had an
30
intimidating effect on some officers. Members of the defense also observed SA Ricardi leave
counsel table to consult with the IAD Agent present. It was an IAD Agent who advised Mr. Ba-
set, apparently through SA Ricardi, that certain MPD General Orders allegedly required officers
to talk with prosecutors.6 Subsequently, Mr. Hannon had an exchange with the IAD Agent re-
garding the implicit threat of punishment for officers refusing to meet with prosecutors or their
agents before testifying.
These tactics aside, perhaps the best evidence of the government’s use of the Court’s rul-
ing regarding the criminal background of Hylton-Brown came in the prolonged cross-examina-
tion of former MPD officer and Calvert County Deputy Sheriff Cory Novick. The government
peppered him with repeated questioning whether he had only a “hunch” regarding Hylton-
Brown’s flight; whether he thought Hylton-Brown was committing a crime; whether Hylton-
Brown had a gun; and other carefully tailored questions to which Sheriff Novick could not pre-
sent a completely truthful answer. The same conundrum was also evident in the key testimony
of Ofc. Kathryn Pitt. These problems were not cured by the Court’s finding that the government
had opened the door to testimony by Novick that he was aware Hylton-Brown had a prior arrest
for possession of a handgun. Pursuant to Terry v. Ohio, the officers should have been able to tes-
tify to Hylton-Brown’s offenses, and they should have been admissible to show his motive to
flee.
6
On the morning of November 30, 2022, Mr. Baset sent an email to the Court and counsel
seeking to strike for the second time the testimony of Ofc. Tyler Toth in Ofc. Sutton’s case. Mr.
Baset argued that MPD General Order 701.01 (Courts and Hearings), at page 23 required Ofc.
Toth to contact the prosecutors before his testimony for the defense and apprise them of what he
would say. Mr. Baset also said that MPD General Order 201.36 (MPD Code of Ethics), at page
2 also required Ofc. Toth to report the full scope of his testimony. Tr. Transcript 11/30/2022
AM at 19-20.
31
5. The Court Improperly Denied Defense Jury Instructions Regarding

the Standard of Constitutional Policing
The Court instructed the jury that part of Ofc. Sutton’s theory of defense was “ Mr. Sut-
ton's operation of the CST vehicle complied with the MPD General Order on Field Contacts, Stops
and Frisks.” Jury Instructions [ECF No. 435] at 42. The Court should similarly have given Ofc.
Sutton’s requested Special Jury Instruction No. 6 “MPD General Order on Field Contacts Conduct of
Terry Stop” [ECF No. 6] at 4. Without such an instruction, the jury had no idea how to judge the
conduct of Ofc. Sutton, and the Court had promised to do so to avoid the jury becoming confused as
to the law. Moreover, in keeping with Ofc. Sutton’s training in Constitutional Policing, the Court
should have given Ofc. Sutton’s requested jury instructions as relate to the conduct of Hylton-Brown.
These instructions were on the following topics:
Special Jury Instruction No. 3 – Voluntary Acts of Others. Id. at 3.
Special Jury Instruction No. 4 – Fleeing From a Police Officer. Id.
Special Jury Instruction No. 5 -- No Right to Flee a Police Officer . Id. at 4
Special Jury Instruction No. 6 – Standard of Care for Police Officers. Id (note that there are
two No. 6s)
6. The Court’s Rulings Violated Ofc Sutton’s Constitutional Right to

Present a Defense
The Compulsory Process Clause of the Sixth Amendment guarantees the right of a de-
fendant to “obtain[ ] witnesses in his favor.” Makiel v. Butler, 782 F.3d 882, 907 (7th Cir. 2015).
This right, “embodies a substantial right to present a meaningful and complete criminal de-
fense.” Id. (internal quotations and citations omitted). This right is “in plain terms ... the right to
present the defendant's version of the facts as well as the prosecution's to the jury so it may de-
cide where the truth lies.” Id. (quoting Washington v. Texas, 388 U.S. 14, 19 (1967)).
This right to a defense is violated where “(1) the testimony would have been ‘both mate-
rial and favorable’ to his defense,” id. (quoting United States v. Valenzuela-Bernal, 458 U.S.
32
858, 867 (1982)), and “(2) the exclusion was ‘arbitrary’ or ‘disproportionate’ to the evidentiary
purposes advanced by the exclusion.” Id. (quoting United States v. Scheffer, 523 U.S. 303, 308
(1998) (citations omitted)). The exclusion of evidence is “material only if there is a reasonable
likelihood that the testimony could have affected the judgment of the trier of fact.” Harris v.
Thompson, 698 F.3d 609, 627–28 (7th Cir. 2012) (citing Valenzuela-Bernal, 458 U.S. at
874); see also Chambers v. Mississippi, 410 U.S. 284, 302–303 (1973); Caffey v. Butler, 802
F.3d 884, 896 (7th Cir. 2015).
Neither the government nor the Court relied on any evidentiary purpose for exclusion of
Ofc. Sutton’s Constitutional Policing defense. The government simply stated that since Murder
in the Second Degree does not require proof of a violation by Ofc. Sutton of the Constitution, his
defense is irrelevant. The Court adopted this reasoning. Similarly, the Court refused to permit
Ofc. Sutton to present the full panoply of Hylton-Brown’s criminal conduct as a corollary to his
Constitutional Policing defense. The Court simply dismissed this argument:
Mr. Sutton has failed to provide a single legally articulable reason why
Mr. Hylton-Brown's motive to flee is relevant to his defense under the D.C. sec-
ond degree murder statute.
Opinion and Order [ECD No. 382] at 10.
No serious question can be raised that a police officer charged with murder in the second
degree should be able to present a defense that his conduct was “reasonable.” Such evidence in
this case could have taken many forms. Ofc. Sutton could testify that pursuant to his training in
Constitutional Policing, he believed he was not only acting reasonably, but acting in conformity
with his duty. The other officers in the CST vehicle similarly could testify that they believed
their conduct was reasonable based on their training in Constitutional Policing. Ofc. Sutton simi-
33
larly presented the opinions of three prominent experts in Constitutional Policing: one whose ex-
perience derives from 44 years on the street; one with similar enforcement experience enhanced
by his teaching at the MPD Academy; and, a third with a law degree which enables him to teach
policing.
The Court recognized generically that evidence that Ofc. Sutton’s conduct was reasona-
ble was admissible. In granting Ofc. Sutton’s request that the government produce IAD Vehicu-
lar Pursuit investigation reports, the Court made clear that Ofc. Sutton could testify to his belief:
“[T]he IAD pursuit investigations may be relevant only insofar as they were accessible to Mr.
Sutton and [therefore] may have informed his subjective awareness of the risk of death or serious
bodily injury to third persons [based on] other officer pursuits in comparable circumstances.”
United States v. Sutton, Criminal No. 21-0598, 2022 WL 1202741, at *12 (D.D.C. Apr. 22,
2022). In other words, Ofc. Sutton should be permitted to testify that he believed his conduct
was reasonable based on IAD’s determinations in similar cases of which he was aware.
Thereafter, Ofc. Sutton requested that the Court order the production of a greater number
of IAD Vehicular Pursuit investigations notwithstanding whether they were accessible to Ofc.
Sutton. In a Memorandum Opinion and Order on July 20, 2022, the Court granted the motion on
the following grounds:
Under D.C. law, to prove second degree murder, the prosecution must estab-
lish that the defendant acted with “malice aforethought.” One way to prove this is to
show that the defendant acted with a “depraved heart” – that is, that the defendant en-
gaged in conduct that “involve[s] such a wanton and willful disregard of an unreason-
able human risk as to constitute malice aforethought even if there is not actual intent
to kill or injure.” Comber v. United States, 584 A.2d at 38-39; see 2 WHARTON’S
CRIMINAL LAW § 21:7 (16th ed. 2021) (“The defendant does not intend to kill. The
actor is indifferent as to whether death results, or the actor may even hope that it will
not result.”).
Memorandum Opinion and Order [ECF No. 198] at 3.
34
Because IAD pursuit investigations construe and apply the MPD General Orders to a
range of pursuits – including circumstances in which IAD investigators ultimately
find that an officer engaged in misconduct that warrants discipline – the IAD pursuit
investigations may illuminate the contours of the reasonable standard of care that ap-
plied to Mr. Sutton as he pursued Mr. Hylton-Brown on October 23, 2020.
The Court is persuaded that the requested IAD pursuit investigations are “ma-
terial” to preparing Mr. Sutton’s defense.
Id. at 6.
The conclusion of the Court was that IAD Vehicular Pursuit investigations are relevant to
both the subjective mens rea for Murder in the Second Degree and the objective standard of care
implicated by adherence to the MPD General Order on Vehicular Pursuits. Consequently, the
only issue is whether there is any fundamental difference between a defense based on compli-
ance with the MPD General Orders and a defense based on compliance with the principles of
Constitutional Policing. The answer must be no from the standpoint of balancing Ofc. Sutton’s
constitutional right to present a defense against the grounds upon which the Court denied such a
defense. Consequently, denial of the defense of Constitutional Policing through testimony, ex-
pert opinions, and cross examination of government witnesses and government experts is a viola-
tion of the Constitutional Right to present a defense.
The grounds upon which this defense was denied in all its parameters was simply the fol-
lowing: the government has not charged a constitutional violation in the Indictment; therefore,
reliance on Supreme Court standards of Constitutional Policing is irrelevant. This rationale for-
bidding the defense, however, does not in any manner logically impair the right of Ofc. Sutton to
present a defense based on the fact that his conduct was reasonable. Among the reasons his con-
duct was reasonable would be Ofc. Sutton’s subjective knowledge of Supreme Court case law
from his training as well as the objective understanding that this case law forms the national
standard for policing. Had the government similarly charged a physician or other professional
35
with Murder in the Second Degree, the professional could certainly defend the case on the
grounds that her conduct complied with the standard of care of her profession.
Neither the government’s argument for exclusion nor the Court’s ruling was based on
“reasonable restrictions such as evidentiary and procedural rules.” United States v. Scheffer, 523
U.S. 303, 308 (1998). Even if the Court’s exclusion of this defense were predicated on the fed-
eral rules of evidence, “a defendant's right to a complete defense ‘is abridged by’ application of
rules of evidence that either ‘serve no legitimate purpose or ... are disproportionate to the ends
that they are asserted to promote.’” United States v. Smith, Crim. No. 19-324 (BAH), 2020 WL
5995100, at *21 (D.D.C. Oct. 9, 2020), quoting Holmes v. South Carolina, 547 U.S. 319, 324–
326 (2006); see also United States v. McLaughlin, Crim. No. 96-0045 (PLF), 2007 WL 2119043,
at *3 (D.D.C. July 23, 2007). Can one legitimately say a defendant in a criminal case cannot de-
fend on the grounds that his conduct is endorsed by the Constitution? Such defenses are pre-
sented every day.
The same can be said regarding the Court’s adoption of the government’s contention that
the criminal background of Hylton-Brown constitutes “character evidence.” While we contend
such evidence is not character evidence, the exclusion of such “character evidence” by applica-
tion of Fed. R. Evid. 404 is “disproportionate to the ends that [the Rules of Evidence] . . . are as-
serted to promote.” United States v. Smith, 2020 WL 5995100, at *21.
7. The Court Impermissibly Permitted Opinion Testimony by Police

Officers
During the government’s examination of the first MPD officer called in its case, counsel
for the government went to incredible lengths in her attempt to qualify that officer -- with one-
year’s experience at the time of the incident -- to opine on whether the conduct of the CST offic-
36
ers and CST Lt. Zabavsky at the scene complied with MPD General Orders. When the Court at-
tempted to call a halt to the effort, counsel confessed to a fundamental void in the government’s
evidence:
THE COURT: You've got experts who are going to talk about what CST
does, what traffic units do, what major crash people do.
MS. BERKOWER: We don't, Your Honor, we actually don't. That's the

defense experts.
Tr Transcript 11/02/22 AM at 60.
The context of AUSA Berkower’s admission was her protracted efforts to obtain opinion
testimony from MPD Officer Tyler Toth as to the propriety of certain conduct by the CST offic-
ers on the scene. The Court promptly observed: “I just don’t think this is appropriate.” Id.
Nevertheless, the Court ultimately permitted several MPD officers and supervisors to provide
opinion testimony on the discretionary MPD General Orders which prejudiced Ofc. Sutton.
When a witness is not testifying as an expert, Federal Rule of Evidence 701 allows lay
opinion testimony only if the testimony “has the effect of describing something that the jurors
could not otherwise experience for themselves”, to offer the trier of fact a more “accurate repro-
duction of the event.” United States v. Diaz, 951 F.3d 148, 156 (3d Cir. 2020). However, Rule
701 places limitations on lay opinion testimony by requiring the testimony be “(a) rationally
based on the witness's perception; (b) helpful to clearly understanding the witness’ testimony or
to determining a fact in issue; and (c) not based on scientific, technical, or other specialized
knowledge . . . .” Fed. R. Evid. 701. If a non-expert witness does not identify the “objective ba-
ses” for the opinion, the witness has failed to satisfy Rule 701 because (1) “there is no way for
37
the court to assess whether it is rationally based on the witness's perceptions”, and (2) “the opin-
ion does not help the jury but only tells it in conclusory fashion what it should find.” United
States v. Hampton, 718 F.3d 978, 981 (D.C. Cir. 2013).
Furthermore, judicial scrutiny of lay opinion testimony is “especially important” when
applied to a law-enforcement officer’s lay opinion testimony. This is so “because of the risk that
the jury will defer to the officer's superior knowledge of the case and past experiences with simi-
lar crimes.” Id. Accordingly, lay opinion testimony must be based on “personal knowledge of
the events that occurred in the case being tried.” United States v. Williams, 827 F.3d 1134, 1156
(D.C. Cir. 2016). The burden of laying an adequate foundation is on the proponent of the lay
opinion testimony. Diaz, 951 F.3d at 156.
United States v. Diaz is instructive in this case. DEA Task Force Officer Gula testified in
this drug conspiracy trial that Diaz worked as “a subordinate to Jeffrey Guzman, working at the
‘direction of Jeffrey Guzman’ to bag and distribute drugs.’” Gula also testified to his interpreta-
tion of Diaz’s un-coded statements. The admission of the testimony was error. The testimony
was unhelpful to the jury and usurped the fact-finding function of the jury. Gula’s opinion on
Diaz’s involvement in the conspiracy was the “ultimate issue at trial.” Id. Gula’s testimony was
“conclusory,” as it “articulated precisely the conclusion the government asked the jury to infer
from the evidence presented at trial.” Id. at 156-57; see also United States v. Perkins, 470 F.3d
150, 155-56 (4th Cir. 2006) (distinguishing permissible police officer lay opinion and impermis-
sible expert opinion).
In the case of Ofc. Toth – as with many other police witnesses and experts – the critical
determination whether to call the Major Crash Investigations Unit under MPD General Order,
Traffic Crash Reports, 401.03, Sutton Exhibit 303D, is purely a judgment call. Ofc. Toth had no
38
experience in such an activity because of his time on the job, and because the decision is made
by a supervisor. Tr. Transcript 11/02/2022 AM at 15-16. As with other witnesses, the govern-
ment contended the decision is based on “common sense,” a completely subjective standard
which demonstrates why federal courts preclude evidence of departmental policy in criminal
cases. When Ofc. Toth was unhelpful, the government was allowed to go on one of its custom-
ary accusatory series of questions whether Ofc. Toth saw Ofc. Sutton do X, Y, or Z, the predicta-
ble answers to which were always “No”. Id. at 80. In such case, the questions are evidence.
The government was particularly persistent in questioning police officers who were on
the scene of the collision about their opinions regarding the injuries to Hylton-Brown. Their tes-
timony strayed into opinion when prosecutors would ask them whether the Major Crash Unit
should have been called. This opinion testimony was highly prejudicial not only because of the
discretionary nature of the determination whether an injury would lead to death, but also because
the decision to call Major Crash is made by the supervisor on the scene.
Another example is reflected in the following exchange:
MS. BERKOWER: And given your knowledge and training about the
body worn camera policy, would you expect that the other officers at this point in
time would still have theirs on, too?
MR. HANNON: Objection, Your Honor. The policy speaks for itself.
Asking for an opinion.
THE COURT: Based on your training?
TEJERA: Yes.
THE COURT: So I'm overruling the objection.
MS. BERKOWER: Sorry.
THE COURT: I've overruled the objection and he's answered my question.
Tr. Transcript 11/02/2022 PM at 98-99.
39
Another is the questioning of officers regarding how they would have described the facial
injuries of Hylton-Brown – described in the Indictment as a gash – in preparing a police report:
MR. BASET: Now, based on what you knew, and if you had actually
written the report in this case, would you have characterized the injuries in this
report as a superficial abrasion?
OFC. ARNONE: No.
MR. HANNON: Objection, Your Honor.
THE COURT: There's an objection. How would you characterize the in-
juries if you had written a report? And if that's objectionable, you can say so.
How would you have characterized the injuries if you had written the report?
OFC. ARNONE: If I had written the report, I would characterize them as

serious injuries.
Tr. Transcript 11/08/2022 PM 60-61. Even if Ofc. Arnone had as much knowledge of Hylton-
Brown’s injuries as Ofc. Novick who was tending to Hylton-Brown, this simply remains a judg-
ment call by a non-medical person. Ofc. Folts of Major Crash testified they are sometimes called
too soon and sometimes called too late. The subjectivity of application of the MPD General Or-
der on Traffic Crash Reports in this regard is simply not a standard that permits lay opinion testi-
mony.
The Court, in ruling on a later objection to the testimony of Ofc. Arnone, attempted to ex-
plain its views on what is permissible or not in questioning the police witnesses. See Id. at 65-
70. Opinions on subjective elements of police policy should not have been permitted, no matter
what foundation was laid. The same is true regarding the lengthy inquiry of Ofc. Arnone as to
what she would have done if she were taking the police report that night. Id. at 82-84.
40
C. THE JURY INSTRUCTION ON MURDER IN THE SECOND DEGREE

WAS ERROR.
The second-degree-murder statute was enacted for the District of Columbia by Congress
in 1901. See An Act to Establish a Code of Law for the District of Columbia, 31 Stat. 1321, ch.
19, § 800 (1901). Congress was merely codifying the common law definition of murder which
existed in 1901. Comber v. United States, 584 A.2d 26, 38 n.9 (D.C. 1990) (en banc). Relevant
to this case, members of the Metropolitan Police Department were vested with the “common-law
powers of constables.” D.C. Code § 5-127.04.3. The statutory version of the common law of
homicide makes it a crime to “kill[ ] another”. D.C. Code § 22-2103. To “kill another” has been
interpreted by the D.C. Court of Appeals as to have “caused the death of” another. See, e.g., Wil-
liams v. United States, 52 A.3d 25, 31 (D.C. 2012); see also Criminal Jury Instructions for the
District of Columbia, Instruction No. 4.213 A.1. HOMICIDE (“[Name of defendant] caused the
death of [name of decedent]”). More particularly, the D.C. Court of Appeals has stated that to
“kill another” the defendant must have inflicted an injury or injuries upon the deceased from
which the deceased died. Jones v. United States, 828 A.2d at 180. Actual cause requires a
showing beyond a reasonable doubt that “the harm would not have occurred in the absence of—
that is, but for—the defendant's conduct.” Id. at 211. See also McKinnon v. United States, 550
that the defendant's conduct ... was a cause in fact of the harm”).
The count for Murder in the Second Degree states: “Hylton-Brown drove onto Kennedy
Street and was immediately struck by an oncoming automobile traveling westbound.” Indict-
ment [ECF No. 1] at ¶ 28. “SUTTON caused a traffic collision from which Hylton-Brown sus-
tained injuries and died.” Id. at ¶ 29 (emphasis supplied). Early in the pretrial proceedings, the
government signaled that it intended to rely on the D.C. Court of Appeals decision in Fleming v.
United States, 224 A.3d 213 (D.C. 2020) (en banc): “In addition, several months before the fatal
41
collision at issue in this case, the D.C. Court of Appeals made clear that § 22-2103 permits
‘[holding] a defendant criminally responsible for causing a death even though the death would
not have occurred but for the reasonably foreseeable intervening acts of another.’” Opp. to Ofc.
Sutton’s Fifth Motion to Compel Discovery [ECF No. 165] at 5.
In the Fleming trial, Fleming appeared to join a gun battle between his group and another
group including Michael Jones. There were multiple shooters in the battle, and Jones was killed
by a shot to the back of his head. No one saw Fleming fire a shot let alone shoot Jones, and the
slug was fragmented and could not be matched to any of the guns found at the scene, including
those found near Fleming. The en banc court reversed the conviction, overruling the gun battle
jury instruction invented in Roy v. United States. The court did so because the gun battle instruc-
tion allowed the jury to convict Fleming without finding that his conduct was the “but for” cause
of the death of Michael Jones. In doing so, the court made clear that “but for” causation must be
found by the jury in every case charging a homicide. The concept of “proximate cause”, the
court explained, is a separate issue which allows a defendant whose act is the “actual” and “but
for” cause of death to be relieved of responsibility for the death if the actions of others intervene
to cause the death. Fleming, 224 A.3d at 221 and 223. In Fleming, the government conceded at
oral argument that it could not prove that Fleming’s conduct was the actual cause of Michael
Jones’ death. After remand, the government declined to prosecute Mr. Fleming again for second
degree murder.
The majority of the en banc court then decided to craft a new jury instruction for
second degree murder. The Fleming instruction is intended for use where there is evidence that
the death dealing blow is struck by an intervening actor. The Indictment charged that Ofc. Sut-
ton “caused a traffic collision.” The word “caused” is used in its ordinary sense. The undisputed
42
evidence is that not only did the Major Crash Investigation Unit determine that the collision was
“caused” by Hylton-Brown’s failure to yield right of way, but also the undisputed evidence sup-
ports only that conclusion.
Therefore, there was no evidence whatsoever which would support the Fleming instruc-
tion in this case in the first instance. Hence, the jury instruction given by the Court is improper:
“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.” Jury Instructions [ECF No. 435] at 29. That is not a correct statement of the evidence,
and Hylton-Brown cannot legally be an intervening cause of his own death. Consequently, this
is not a case in which the Fleming instruction was merited on the facts.
Moreover, the instruction directs the jury to conclude that the fatal injuries were inflicted
by “a third-party,” the Scion. This amounts to a critical and prejudicial comment by the Court on
the evidence. The instruction, therefore, should not have been given at all; however, in the form
given it directs the jury to conclude that the Scion was at fault. This is clear error.
So the initial error in denominating – as undisputed – that the Scion was the “intervening
cause”, there is another issue with the instruction, which essentially allows the jury to find guilt
based on a civil standard. The error is easily exemplified by a mere reading of the Court’s in-
struction on “but for” causation:
First, the government must prove actual causation- that Mr. Hylton-Brown's death
occurred as a result of an action by defendant Sutton. In other words, the govern-
ment must prove that in the absence of an action by defendant Sutton, Mr.
Hylton-Brown's death would not have occurred.
Jury Instructions [ECF No. 435] at 29. In the context of the facts presented by the government,
under this instruction the jury is free to conclude that Ofc. Sutton is responsible for Hylton-
Brown’s death based on virtually any “action” he took during that evening, or conceivably at any
43
time in his career. The instruction applies a civil standard that ignores the common law meaning
of “to kill” another. Indeed, in opposing Ofc. Sutton’s motion to dismiss, the government relied
exclusively on civil cases in support of the Fleming instructions. See Ofc. Sutton’s Reply in
Support of Motion to Dismiss Under Rule 12 [ECF No. 200] at 3-6.
The reason this is akin to a civil standard – or indeed a jury instruction directing a finding
of guilt – is that no “action” of Ofc. Sutton on the night in question has ever been prosecuted as a
homicide in the District of Columbia or likely anywhere. The instruction allows the government
to prove guilt without evidence of any death blow. The Court must look beyond the Fleming
case, as proposed by the government, and look to the core of District of Columbia law on Murder
in the Second Degree.
In Comber v. United States, 584 A.2d 26 (D.C. 1990) (en banc), the Court set out the four
ways in which the government may prove the mens rea of “malice aforethought”: (1) specific in-
tent to kill; (2) specific intent to inflict serious bodily harm; (3) such a wanton and willful disre-
gard of an unreasonable human risk as to constitute malice aforethought even if there is not ac-
tual intent to kill or injure; and, (4) felony murder. The Court then said, “In Byrd v. United
States, supra note 9, 500 A.2d at 1385, we referred to this kind of malicious killing as ‘depraved
heart’ murder.” Id. at 38-39. Helpful to the analysis of depraved heart murder is footnote 13 in
Comber:
Examples of conduct rising to the level of depraved heart malice include:
firing a bullet into a room occupied, as the defendant knows, by several peo-
ple; starting a fire at the front door of an occupied dwelling; shooting into ... a
moving automobile, necessarily occupied by human beings ...; playing a
game of “Russian roulette” with another person....; selling “pure” (i.e., undi-
luted) heroin.
2 W. LAFAVE & A. SCOTT, supra note 6, § 7.4, at 202–03 (footnotes omitted).

An example of “depraved heart” murder in this jurisdiction appears in Powell v.
44
United States, supra, 485 A.2d 596. There, the defendant disregarded a police of-
ficer's signal to stop his car and pull over. He then led police on a harrowing high
speed chase, sped through a tunnel at a speed in excess of ninety miles per hour,
turned onto a congested exit ramp blocked by vehicles, and struck the rear of an-
other vehicle, killing one of its occupants. Id. at 598. The defendant was con-
victed of second-degree murder on the theory that his conduct “showed a wanton,
reckless disregard for life.” Id. at 601.
Id. at 39, n. 13.
A survey of District of Columbia cases involving “depraved heart” murder in the second
degree, reveals the obvious: every case involves the use of guns, knives, weapons, fire, poison,
other inanimate objects to inflict death upon the victim. The jury instruction proposed by the
government in Ofc. Sutton’s case, and given by the Court, allows the jury to disregard the com-
mon law requirement that the “action” of the defendant must consist of death-dealing conduct
which in the ordinary course would cause death. This is what is meant by “to kill another.”
Consequently, the “actions” of Ofc. Sutton do not come close to approaching Murder in
the Second Degree.
D. THE GOVERNMENT’S MISCONDUCT PERMEATED THE TRIAL.
1. Suppression of the Testimony of Chinendu Ukeekwe
The established “proper uses of rebuttal evidence include the contradiction, impeach-
ment, or defusion of the impact of the evidence offered by an adverse party.” United States v.
Bell, 624 F.3d 803, 810 (7th Cir. 2010). Ofc. Sutton attempted to offer the testimony of eye-wit-
ness Chinendu Ukeekwe (“Mr. Ukeekwe”) as evidence to attack the credibility of the govern-
ment’s “thorough” investigation. As such, Defendant filed a Motion in Limine [ECF No. 387]
indicating that the validity of attacking “the reliability of the [government’s investigation].” ECF
No. 387 (citing Kyles v. Whitley, 514 U.S. 419, 446 (1995)).
45
Following the Defendant’s Motion in Limine [ECF No. 387], the Court initially deter-
mined “Mr. Ukeekwe can be called to testify. And if in the course of his testimony he testifies,
as this letter suggests from his lawyer, that Agent Ricardi told him, quote, just say you lied and
you will never see me again, if that’s his testimony, that’s his testimony.” Tr. Transcript
12/06/2022 AM at 4. The Court further decided “the body-worn camera of Price of the conver-
sation between Ukeekwe and Price, can be used in the examination of Ukeekwe.” Tr. Transcript
12/06/2022 at 4. The government argued that any testimony outside of what Mr. Ukeekwe saw
as an eye-witness on the night of the accident was irrelevant and violated the Court’s prior rul-
ings regarding any alleged Brady violations regarding Ukeekwe. Tr. Transcript 12/06/2022 at 5.
After brief questioning between the Court and Ms. Berkower, the Court amended its ini-
tial position:
Mr. Ukeekwe can testify on a limited basis. The body worn camera is out.
Price is out. I don’t know who Tobe is. Somebody will tell me, and he will be
limited to what he says he saw. And he can be cross-examined on what he says
he saw. He cannot be cross-examined on his conversation with Mr. Ricardi.
Take it to the Court of Appeals if there is a conviction.
Tobe is apparently Price’s supervisor who wrote the memo summarizing

the body-worn camera. So if the body worn camera is out and Price is out, so is
Tobe.
So basically I have been persuaded that what Mr. Ukeekwe says he saw is
relevant. What he said to the police officer is not relevant. And Ricardi’s interac-
tion with him – we would be relitigating the Brady issue.
Tr. Transcript 12/06/2022 AM at 11. By suppressing and limiting the testimony of Mr.
Ukeekwe, the Court deprived Ofc. Sutton of the right to contradict and impeach the govern-
ment’s investigation. See Bell, 624 F.3d at 810.
The point to be made here, however, is that Mr. Ukeekwe’s testimony was appropriate to
contest the credibility of the government’s case agent who testified for four days. SA Ricardi
46
touted the thoroughness and fairness of his investigation. SA Ricardi’s credibility as the case
agent and as the government’s de facto “client” in the courtroom was a major key to the defense.
The Court should note that when questioned by the government about what he learned in his in-
vestigation, his answers were practiced and precise. When asked on cross examination what he
learned about Ofc. Sutton or Hylton-Brown, he went brain dead.
The Federal Rules of Evidence provide that: “[a]ny party, including the party that called
the witness, may attack the witness’s credibility.” Fed. R. Evid. 607. In application, “[t]he
Courts of Appeals have upheld use of extrinsic evidence to show bias both before and after the
adoption of the Federal Rules of Evidence.” United States v. Abel, 469 U.S. 45, 51–52 (1984).
The Supreme Court has defined bias “to describe the relationship between a party and a witness
which might lead the witness to slant, unconsciously or otherwise, his testimony in favor of or
against a party. Bias may be induced by a witness' like, dislike, or fear of a party, or by the wit-
ness' self-interest.” Id. at 52 (emphasis added). Further, “proof of bias is almost always relevant
because the jury, as finder of fact and weigher of credibility, has historically been entitled to as-
sess all evidence which might bear on the accuracy and truth of a witness' testimony.” Id.
The conduct to which Mr. Ukeekwe would testify is abhorrent, if believed. The jury
knows that SA Ricardi is employed by the U.S. Attorney’s Office. He works every day with
prosecutors alongside them. He is directed in his investigative steps by prosecutors. He was ob-
viously directed to take the “investigative measures” regarding Chinendu Ukeekwe by the prose-
cution team. His desire to please could not be more at issue in the case. The jury is the sole
judge of credibility. The Court erred in not permitting evidence that SA Ricardi lied to an eye-
witness in the very case he was investigating.
47
The exchange with the Court on the in limine refusal to permit Mr. Ukeekwe to testify
also exposed an unspoken thought of the Court which might have informed its ruling that the
government had not violated Brady in its suppression of Mr. Ukeekwe’s testimony. Mr. Hannon
argued that Mr. Ukeekwe’s admission through his attorney that SA Ricardi told him to lie was
not known at the time of the Brady hearing. The Court responded:
It could have been known if you had used your investigator to further your
Brady arguments. But you were afraid of what you would find, so you didn't do
so.
Tr. Transcript 12/06/2022 AM at 9. This observation is telling in two ways. First, it is not accu-
rate that Mr. Ukeekwe would have spoken with Mr. Hannon’s investigator. The record was that
he refused to speak with the investigator. Second, the only way Mr. Ukeekwe’s participation
could be procured was by serving him with a subpoena and an accompanying letter urging him to
obtain counsel through the Federal Defender or otherwise. Only after Mr. Ukeekwe obtained
counsel was the perfidy of SA Ricardi exposed in the letter from Mr. Ukeekwe’s attorney, which
was sent both to the government and to Mr. Hannon. Moreover, Mr. Ukeekwe’s attorney would
not allow him to be interviewed by Mr. Hannon or his investigator.
2. Presentation of the Perjured Testimony of Kavonn Mason
The government presented the testimony of witness Kavonn Mason in its case in chief.
The government represented to defendants before trial that Mr. Mason had no criminal record.
Attorney Ahmed Baset made the same representation to the Court before Mr. Mason testified,
with the Court asking Mr. Baset whether Mr. Mason “ever” had a criminal record. SA Ricardi
was present in the courtroom when Mr. Baset made this representation; yet, SA Ricardi did not
correct Mr. Baset’s false statement in court. There is no evidence of what SA Ricardi said to
prosecutors after Mason testified.
48
Depending on Mr. Baset’s representations that Mason had no criminal record, on cross
examination, Mr. Mason confirmed that he had managed to “stay out of trouble,” although he
had grown up on Longfellow Street between 5th and 6th Street, NW. This was a lie.
Counsel for Ofc. Sutton notified the Court on November 7, 2022, that Mr. Mason actually
had five criminal cases filed against him in the Superior Court of the District of Columbia. See
[ECF No. 349] Exhibits A through J. On May 14, 2019, The Honorable John Ramsey Johnson
sentenced Mr. Mason to 90 day(s) incarceration under D.C. Code § 24-903(b) YRA, execution of
sentence suspended as to all, YRA Unsupervised Probation for 12 month(s), for the charge of
Contempt-Conditions of Release Violation. See Sentence at Exhibit F. On the same date, Judge
Johnson also sentenced Mr. Mason to 90 day(s) incarceration under § 24-903(b) YRA, execution
of sentence suspended as to all, YRA Unsupervised Probation for 12 month(s) on each of two
counts of Simple Assault. See Sentence at Exhibit G.
As part of a plea agreement, case 2018 CMD 018715 charging simple assault and threats
to do bodily harm was dismissed. The Gerstein filed in that case states the following:
While assigned as special beat 403 I, Officer Boyd,K 5379 received a call for in-
dividuals selling drugs in front of the listed location. Once [on] the scene I, ad-
vised D-1 (Mason,Kevonn) to leave the property. D-1 was standing directly in
front of the store entrance. D-1 walked off, then momentarily stopped and turned
around and stated that I, don't have to go anywhere. I then advised D-1 to leave
the private property and that the owner called. D-1 then stated in an angry manner
with his fist clinched I'm not going anywhere. D-1 then walked up to me again
with closed fist, with less than a half inch from my face. D-1 than spit on me at
which time I, pushed D-1 from in front of me to clear space between us for my
safety.
I, Officer Boyd,K 5379 advised D-1 to leave again. D-1 than walked up to me
with booth [sic] hands bald [sic] up and in a fighting and striking mode and stated
"I will floor you like I, knocked out three other Officer's. I will APO you too, I
don't have go anywhere. I, Officer Boyd,K attempted to place D-1 under arrest by
hand controls by grabbing D-l's upper body with my hands. D-1 than pushed me
on top of a car trunk causing injuries and pain to my left hand, wrist and pain to
my right knee.
49
D-1 was taken to the Fourth District for APO - and threats on a police officer and
processed. D-1 was identified verbally.
Exhibit H.
Neither conviction had been set aside. See CSOSA Orders Exhibits I and J.
Compounding the misconduct of the prosecution team, when Mr. Baset presented Mason
on direct examination, Mr. Mason lied about what he saw the night of the incident. Both Mr. Ba-
set and SA Ricardi knew that Mason lied. Mason told the jury that he saw Reggie Ruffin turn
the moped over to Hylton-Brown directly in front of the bus stop on Kennedy Street next to the
Starlight Convenience Store. We know Mr. Mason lied because this event does not appear on
the video from the 5th and Kennedy Street police camera. Both Mr. Baset and SA Ricardi also
knew that Mason lied on the stand because SA Ricardi had interviewed Mason on May 18, 2022,
at the Emory Heights Recreation Center. The Memorandum of Interview is Sutton Exhibit 400-
G. In the interview, Mason told the same story he told the jury. On March 18, when Mason told
SA Ricardi he saw Ruffin turn the moped over the Hylton-Brown in front of the bus stop, SA Ri-
cardi knew the statement was not true. SA Ricardi then took Mason to the U.S. Attorney’s Of-
fice to view the police camera videotape.
According to SA Ricardi’s MOI, Mason had his recollection refreshed and remembered
that he saw Ruffin turn over the moped to Hylton-Brown earlier in the day and up the street, in a
location which was not in view of any cameras. Sutton Exhibit 400-G.
When Mason told the first story to the jury – the one that SA Ricardi and Baset knew was
a lie – Mr. Baset never corrected the record. See Tr. Transcript 11/09/2022 PM at 62-68. As in
the other instances where Mr. Baset is accused of misconduct during the trial, another prosecutor
spoke on his behalf. Ms. Berkower contended that what is plainly evident on the record, in the
MOI, and in the videotape was amply corrected by Mr. Baset in his examination of Mason. It
50
was not. Yet, the Court promptly declared that “She just explained that it wasn't done in bad
faith.” Id. at 76. This pronouncement of the Court is unjustified.
The “clean” testimony of Kavonn Mason was very important to the government. The
government wanted the jury to believe that Hylton-Brown was innocently looking for his keys
right before he fled from the CST Units, and not dealing drugs in the Kennedy Street corridor.
This is what Mr. Baset contended in his closing argument. “[Y]ou can't even mind your own
business and look for your own keys without being bothered.” Tr. Transcript 12/14/2022 PM at
79.
The government proceeded with this testimony to demonstrate Hylton-Brown’s inno-
cent conduct even though prosecutors knew that Hylton-Brown had $3,128 dollars in small bills
on his person at the time. And they also knew from their trial prep interview of EMT Gonthel
Tollivor that the money was secreted in plastic wrap around his legs under his sweatpants. The
position of Ofc. Sutton at trial was that the government intentionally and knowingly risked the
penalty of non-disclosure of Kavonn Mason’s criminal record because otherwise, it would not
have called him as a witness at all. The position of Ofc. Sutton at trial was similarly that Mr. Ba-
set failed to correct Mason’s perjury in front of the jury, which he has an affirmative duty to do
in a completely candid fashion. Ms. Berkower’s reading of the transcript of Mason’s examina-
tion by Baset proved the point that Baset failed to correct the perjury. Id. at 86-7. Yet, the Court
allowed this to stand.
The Court’s refusal to strike the testimony of Kavonn Mason and instruct the jury that the
government had violated its Brady obligations, as requested by Ofc. Sutton, was based on a
faulty understanding by the Court of the facts. See Sutton Special Jury Instruction No. 14 [ECF
No. 349].
51
3. AUSA Ahmed Baset’s Forgery of a Government Exhibit 413-G
During his initial closing argument to the jury on December 14, 2022, AUSA Ahmed Ba-
set projected to the jury from a PowerPoint presentation a document which was labelled and pur-
ported to be a slide from government Exhibit 413-G (Slide 19). This slide contained bullet points
represented as a page of an MPD training document admitted into evidence, allegedly shown to
Ofc. Sutton during his MPD Training Academy session, and sponsored during trial by govern-
ment training expert Ofc. Carolyn Totaro. During his closing argument, Baset referred directly
to a portion of this forged Exhibit:
He also was aware to not flush the motorist into a roadway or into an object.
And that, ladies and gentlemen, couldn't be more crystal clear and obvious on the
body cam.
Tr. 12/14/2022 AM at 30 (emphasis supplied).
The forged Exhibit contained a bullet point stating that an officer is prohibited from
flushing a motorist into a roadway. AUSA Baset went on:
You also know that Sutton was trained about the extreme risks when his driving --
when he drove in this manner. For example, in one of the trainings he received,
which you are actually looking at the very slide that he was looking at when he
took the training, he was told about the rules of engagement, about how you actu-
ally conduct a vehicular pursuit. And it couldn't be any more clear that Sutton
was creating a grave risk when he pursued Mr. Hylton-Brown in the manner in
which he did.
Tr. 12/14/2022 AM at 31 (emphasis supplied).
During the closing argument of AUSA Baset, counsel for Ofc Sutton for the first time
recognized that the page marked as Exhibit 413-G was a forgery, having been provided a hard
copy of the government’s Powerpoint only a few minutes before 9:30 a.m. In his closing argu-
ment counsel for Ofc. Sutton, Mr. Hannon stated the following:
When this case was brought, and as it continued through trial, some on our team
felt outrage. Now, that's irrelevant to your deliberations. Whatever I feel about
52
how the government has gone about prosecuting the case is irrelevant to your de-
liberations unless I can persuade you that it's very important for you to look at
what your government has done in this case.
And I want to give Mr. Baset a fair chance to demonstrate to you that the govern-
ment is playing fair.
[The PowerPoint slide was then displayed to the jury on the Elmo]
* * * * *
Okay. What you're looking at is one of Mr. Baset's slides that he showed you,
and the slide is supposed to be coming from Government Exhibit 413G. You see
it in the upper right-hand corner, and it says one of the things that Officer Sutton
ignored was do not flush into a roadway.
Can we switch over to Ms. Clarizio's computer. And I could be mistaken, but this
is Government Exhibit 413G, and it has 30 slides. And let's go through the slides.
And I cannot find that slide. I hope I'm wrong. I hope after lunch when the gov-
ernment gets the last word, he will explain to you how I'm mistaken. And you
can look at your notes from the examination of Officer Totaro and see if you find
the word "flushing" into a roadway anywhere in her testimony.
Tr. 12/14/2022 AM at 55-56 (emphasis supplied).
In his rebuttal argument, AUSA Ahmed Baset was silent in response to Mr. Hannon’s
challenge to the legitimacy of the slide which AUSA Baset had included in his Powerpoint as
part of Government Exhibit 413G. Consequently, on December 15, 2022, Defendant Sutton
filed a motion to dismiss the Indictment based on AUSA Baset’s forgery and argument derived
from the forgery. [ECF No. 412]. The next day, the Court addressed the issue with the govern-
ment. AUSA Baset remained silent, while AUSA Elizabeth Aloi spoke for him. Ms. Aloi re-
ported the following to the Court:
There is no suggestion in the transcript [of AUSA Baset’s closing argument] that
this particular slide was pulled from defendant Sutton's training. It is a demon-
strative, and it was summarizing what Mr. Baset was explaining to the jury was in
the evidence that he had seen.
Tr. 12/15/2022 at 7.
53
The Court responded, in part, as follows:
And it seems to me that, A, this may be a satisfactory explanation. B, if it's not

satisfactory to the defense and/or they're alleging prosecutorial misconduct or bad
faith, I suppose we can have a hearing on it some time, but not before
the jury begins to deliberate.
Id. at 9.
I don't find any basis to dismiss the indictment or to have an evidentiary hearing
before the case goes to the jury for deliberations.
If the defense wants to raise something after the verdict, they can. But I
think on the state of the record, I don't think there's much to be raised.
Id. at 11. The Court made these observations before hearing argument from Mr. Hannon.
In the midst of Mr. Hannon’s argument, the Court stated:
If you want a hearing later, you can have a hearing later. If you want an instruc-
tion, give me an instruction. But I don't think there's a misstatement.
Id. at 13. Mr. Hannon responded, in part:
This is deliberate. There has been no effort by the government to correct this.
Saying to the Court now that it's a demonstrative is an excuse that doesn't hold
water, not one bit.
And we just got the transcript of rebuttal closing argument, and the theme contin-
ued about this notion of pushing and sending them into a chute and a funnel. And
all of that is a theory that's not in the indictment, as we indicated and have indi-
cated all along.
Id. at 16.
Moreover, Mr. Hannon reported to the Court that during his closing argument – at the
moment he was calling out AUSA Baset’s forgery – his law clerk heard Mr. Baset say to Ms.
Aloi at their counsel table “That’s just a demonstrative”, which Ms. Clarizio has evidenced by an
Affidavit filed in the case at ECF No. 422, Exhibit M.
54
Hence, Ms. Aloi’s representations to the Court are pure hearsay, as she apparently had no
advance notice of Mr. Baset’s dangerous gambit; nevertheless, Ms. Aloi has embraced this mis-
conduct in her arguments to this Court. Nor did either counsel raise an objection to Mr. Han-
non’s argument which would have been in order if, indeed, the forged page was only demonstra-
tive. The government never highlighted for defense counsel that the forged page was a “demon-
strative” exhibit; although, Ms. Aloi earlier argued that Mr. Hannon could not use an exhibit in
closing because it was not admitted at trial. Tr. Transcript 12/14/2022 at 6 (“He only provided
us with a list of exhibits he intended to use; and then I identified for him that some of those items
were not, in fact, admitted and, therefore, would not be appropriate to use at trial -- or in clos-
ing.”).
The die having been cast, the Court now knows the impact this argument had upon the
jury. The “flushing” argument was prolific in several forms in the government’s closing and re-
buttal. This argument, endorsed by the Court’s refusal to give a curative instruction, allowed the
jury to find that Ofc. Sutton “caused a traffic collision from which Hylton-Brown sustained inju-
ries and died.” Indictment[ECF No. s] at 9. This argument ineluctably compelled the jury to be-
lieve that the law and facts both entitled them to ignore Hylton-Brown’s own voluntary behavior
which led the Major Crash unit to conclude that the collision was caused by Hylton-Brown’s
failure to yield right of way.
This argument fulfills a notion of a standard of care that Mr. Baset embraces that is not
part of the criminal law: i.e., that police owe a duty to a fleeing suspect to refrain from conduct
which would cause the suspect to voluntarily cause his own death. This theory was presented by
AUSA Baset in his examination of grand jury witnesses. See Sutton Motion to Dismiss for Pros-
ecutorial Misconduct [ECF No. 185] at 29. Mr. Baset made the same argument to the jury in this
55
case. The Court denied Ofc. Sutton’s request for a curative jury instruction. Tr. 12/15/2022 at
23.
The Supreme Court will not tolerate a conviction based on the intentional presentation of
false evidence. Miller v. Pate, 386 U.S. 1 (1967). The Supreme Court has extended the pro-
scription to a prosecutor’s knowing misrepresentation of evidence. See Miranda v. Bennett,
322 F.3d 171, 181 (2nd Cir. 2003) (citing Donnelly v. DeChristoforo, 416 U.S. 637, 647 (1974));
see also United States v. Valentine, 820 F.2d 565, 570-71 (2d Cir. 1987). In this case, there is no
doubt that Mr. Baset personally created and used before the jury a Powerpoint slide explicitly
represented to the jury as an exhibit. The slide contained a theory of liability for Murder in the
Second Degree which was not charged in the Indictment nor for which there was any evidence in
Ofc. Sutton’s training. Mr. Baset created a forged exhibit and told the jury that Ofc. Sutton’s
training – the standard of care – imposed upon Ofc. Sutton a duty to protect Hylton-Brown from
his own intentional flight into the path of the Scion. A more damaging and intentional act is hard
to imagine.
5. The Failure to Control the Conduct of Hylton Brown’s Mother
Ms. Hylton-Brown was removed from the courtroom for having multiple emotional out-
bursts, interactions with prospective jurors, and interaction with witnesses, including an outburst
before the jury directed at Mr. Sutton. Ms. Hylton-Brown also interfered with the trial in the fol-
lowing ways: audibly crying, sighing, and gasping; staring down the defendants and defense
counsel with unwavering direct eye contact; giving the middle finger to defense counsel for ten
to twenty seconds; emotionally walking in and out of the courtroom so frequently that the deputy
56
marshal assigned her to the back of the courtroom; interacting with witnesses, including embrac-
ing Paramedic Tolliver; and allegedly whispering to a juror. Tr. 10.31.2022 (AM); Tr.
11.02.2022 (AM); Tr. 11.03.2022 (AM).
The government frequently assured the Court that its personnel from the Victim Witness
Assistance Program would ensure proper behavior by Ms. Hylton-Brown; however, that promise
never eventuated. Indeed, Ms. Hylton-Brown was found in a witness room used by the defense
with the Victim Witness Assistance Program employee herself. There is no way to calculate the
prejudice her behavior caused the defense, other than that the jurors were visually and audibly
exposed to all of her conduct. Upon returning their verdict, the jurors seemed unsurprised when
Ms. Hylton-Brown leaped up screaming in the courtroom, then hurling herself against the Mar-
shalls seeking to remove her. She was arrested for assaulting them, and the U.S. Attorney’s Of-
fice declined to paper the case. Her misconduct falls on the government, which defended her
with absurd arguments by Mr. Baset.
6. The Creation of the Federal Nexus Pretext by AUSA Ahmed Baset
As we maintained throughout the case, the elements of Obstruction of Justice were
properly set out by the Court – with the agreement of the prosecutors in the case – in United
States v. Williams, 825 F.Supp.2d 128, 130-31 (D.D.C. 2011). In his Motion to Reconsider [ECF
No. 240], Ofc. Sutton set out the many federal cases in which the courts treated the federal nexus
requirement as an element of the offense. These cases reflect trial court and appellate court deci-
sions examining the evidence presented at trial as to how the defendant’s conduct interfered with
an investigation into a possible federal offense. These cases are all fact intensive, and must in
some instances – due to the mens rea required for obstruction of justice – focus on the
knowledge of the defendant.
57
The Court treated the issue as a purely legal one, and deferred to the discretion of the
U.S. Attorney as to whether the investigation was truly federal from the outset. Nevertheless, the
government did put on evidence of a federal nexus. However, the only evidence presented by
the government on this issue was the testimony of SA Sean Ricardi, the criminal investigator for
the U.S. Attorney’s Office, and IAD Agent Joseph Della Camera. Della Camera testified that
IAD always sends potential death cases to the same unit of the U.S. Attorney’s Office regardless
of the nature of the underlying facts. Tr. Transcript 11/07/2022 at 98-99. Della Camera testified
that he participated in some interviews, and “At the time, according to AUSA Baset, it was a
civil rights investigation.” Id. at 101-02. SA Ricardi testified that he was told by his supervisor
and Mr. Baset that he was embarking on a civil rights investigation. Tr. Transcript 10/26/2022 at
16.
So it appears that Mr. Baset again is at the fulcrum of what the Court should view as a
pretextual effort to obtain federal jurisdiction in this case. The government refused to produce
evidence that it complied with the Justice Manual in prosecution this case, and the Court refused
to order its production, even for use at trial by Ofc. Sutton. In other words, Ofc. Sutton was pre-
cluded from disproving the federal nexus by proof that DOJ and the U.S. Attorney never treated
this case as a civil rights investigation.
Similarly, the Court precluded in limine any evidence from Ofc. Sutton that would tend to
prove there was no federal nexus. Counsel were permitted only to cross examine SA Ricardi or
Della Camera. The Court precluded Ofc. Sutton from calling the most experienced MPD official
with knowledge of how the relationship between IAD and the U.S. Attorney’s Office actually
worked, Sr. Sgt. Brian Bray. This was error, depriving Ofc. Sutton of a defense to both the
charge and denying him evidence that this Court lacks jurisdiction.
58
7. Misconduct by AUSA Ahmed Baset in Opening Statement and

Closing Argument
That man right there in the gray tie is Metropolitan Police Department Officer
Terence Sutton. And we are here today because, on October 23, 2020, he mur-
dered Karon Hylton, a 20-year-old native of our city.
Tr. Transcript 10/25/2022 at 45.
The evidence will prove beyond a reasonable doubt that Sutton and Zabavsky
then agreed to cover up the murder.
Id. at 47.
That’s what the evidence in this case will prove to you, a murder and a cover…
Id.
We are here today because Sutton killed Hylton, and Zabavsky helped him cover
it up.
Id. at 64.
We are also here because Sutton and Zabavsky conspired to cover up this murder.
Id. at 65
A murder and a coverup, that’s why we are here today.
Id.
From the opening statement of the government the jury was hopelessly ignorant of the
elements of Obstruction of Justice requiring proof that the government was investigating a fed-
eral offense. Mr. Baset told the jury the defendants covered up a murder. There was never any
testimony or jury instruction on what constitutes a federal offense. Based on this intentional dis-
tortion of the charges to inflame the jury, there is little doubt why the jury returned a verdict of
guilty on Obstruction of Justice with not a single peep as to what it all means.
The Court took no remedial action, even in response to defendants’ motions to dismiss.
59
Mr. Baset then finished the trial having to pay no penalty for any of the misconduct at
which he was the center. So in closing, he freely misstated the law on “but for” causation:
Now, no one here is disputing whether or not Mr. Hylton-Brown should have
stopped. It's not a big surprise. We haven't argued as the government that he had
every right to continue on.
And the real question with respect to Mr. Hylton-Brown is if you think that he is
the sole cause of his death, that's one thing, but causality and causation and the
analysis and the law on that is that if you believe that Mr. Sutton was a but-for
cause, in other words, he was a part of the chain of events and if you removed him
out of that chain would the crash have occurred, that's the question.
Tr. Transcript 12/14/2022 PM at 60 (Emphasis supplied).
So that's really the analysis there. And Mr. Hylton-Brown, he could have made
mistakes, but it doesn't matter. It doesn't matter, because he's not on trial. And
what matters is what Mr. Sutton did.
Id. at 61.
Mr. Baset told the jury that they can acquit Ofc. Sutton only if Hylton-Brown was the
sole cause of his death. And Hylton-Brown is not responsible for his actions. This is not the
law, and the error was exacerbated by the Court’s refusal to instruct the jury that Ofc. Sutton
could anticipate reasonable conduct by Hylton-Brown; that Hylton-Brown had no right to flee;
and that Hylton-Brown is responsible for his own voluntary acts. See Ofc. Sutton Special Jury
Instructions [ECF No.403].
No one deserves this, not Karon Hylton-Brown, nobody, for simply minding their
own business. That's why the vehicular pursuit policy is what it is. That's why
we as citizens in this city have decided we don't want vehicular pursuits for peo-
ple who are not very dangerous. Unless you're out there doing something really
bad at the moment or being violent, it's not worth it, that's what Totaro told you,
because the risks are so sigh. And you see in a case like this how that is. Mr. Sut-
ton didn't care. It didn't matter to him.
Id. at 64.
60
From this argument, there is no doubt that the government relied exclusively on evidence
that Ofc. Sutton violated MPD General Orders, as we explain in Ofc. Sutton’s Motion for Judg-
ment of Acquittal, filed today. But this argument goes on to invite the jury to render their verdict
as a judgment on what they want to see from their MPD Police Department. And this appeal to
render a verdict based on policy is enhanced by Mr. Baset when he says “That’s why we as citi-
zens in this city have decided we don't want vehicular pursuits for people who are not very dan-
gerous.” He has elevated MPD policy to an edict from the City’s population, akin to a law.
No, no, this is not a game of Russian Roulette by car. You don't get to just be like
heads you win, tails you lose, sorry, buddy, that's really unfortunate. I believe
those are Mr. Brennan's words, too bad. This isn't a video game. You don't get to
come back. That's not how policing works.
Id. at 66.
This argument exemplifies the reason why police policies and general orders are
not admissible in criminal cases. Once such evidence is permitted by the Court, these are
the type of inferences the government invites the jury to draw. Vote on how you want
“policing to work.” And worse, Ofc. Sutton had no right to draw the jury’s attention to
the consistent chain of Supreme Court precedent endorsing exactly what Ofc. Sutton did
that night.
Let's be clear. Mr. Hylton-Brown didn't have a weapon. Mr. Hylton-Brown didn't
have a gun. He wasn't committing a crime, let alone a violent one. He wasn't do-
ing a damn thing wrong that night.
Id. at 72. How does a prosecutor justify saying this? And Mr. Baset went on to argue the fol-
lowing, to which there is no rebuttal because the Court prohibited Ofc. Sutton from presenting
evidence on what the law is:
So at best, the information -- and this is being charitable, and this is fully crediting
these witnesses, which I am not, and nor should you, frankly. But if you believe
it, all you heard was that Mr. Hylton-Brown got into an argument earlier that day,
61
a heated argument maybe. God forbid anybody get in a heated argument in a

high-crime neighborhood who happened to get arrested before.
Id. at 72.
So because the Court excluded a defense based on Constitutional Policing, the verdict be-
came for the jury a vote for George Floyd: to convict a police officer of the highest integrity of
murder. How can such a decision be wrong, when it is promoted by the U.S. Attorney, the chief
law enforcement officer of the City?
And then Mr. Baset played the race card:
Now, Mr. Hannon -- I will bring you back to this final point. He talks
about freedom. And it's important to emphasize that freedom is not just meant for
certain people in this city. It's not just if you live in a high crime neighborhood
you don't get freedom, that if you have an arrest record you don't get freedom or
you just get a little less freedom.
You don't get to just chase people in certain parts of the city on a hunch
because they have a criminal history or they have an arrest history or because
they're out after 10:00 p.m. or they're sitting on a corner where there's been drug
sales before or whatever it is. That's not how that works. That's not freedom,
when you can't even mind your own business and look for your own keys without
being bothered.
Id. at 79.
E. CONDUCT OF THE TRIAL JUDGE
The mere fact that a judge holds views on law or policy relevant to a case does not dis-
qualify him from hearing the case. See, e.g., Association of National Advertisers, Inc. v. FTC,
627 F.2d 1151, 1174 (D.C. Cir.1979), cert. denied, 447 U.S. 921 (1980); United States v. Halde-
man, 559 F.2d 31, 136 n.332 (D.C. Cir. 1976) (en banc) (per curiam) (“although fixed, an opin-
ion on the law is not disqualifying”), cert. denied, 431 U.S. 250 (1977). “As long as the judge is
capable of refining his views in the process of this intellectual confrontation, and maintaining a
completely open mind to decide the facts and apply the applicable law to the facts, personal
62
views on law and policy do not disqualify him from hearing the case.” Southern Pacific Com-
munications Co. v. American Tel. and Tel. Co., 740 F.2d 980, 991 (D.C. Cir. 1984), cert. denied,
470 U.S. 1005 (1985). The test is whether the judge's mind is “irrevocably closed” on an issue.
See FTC v. Cement Institute, 333 U.S. 683, 701 (1948); see also Hortonville Joint School Dis-
trict No. 1 v. Hortonville Education Association, 426 U.S. 482, 493 (1976).
1. Issues Related to Ofc. Sutton’s Counsel
A jurist’s conduct at trial may enter the calculus of whether a defendant should be
granted a new trial in the interests of justice. This consideration may sometimes focus on con-
duct toward a defendant’s attorney.
The government took 20-days to put on its case from October 26 to November 21, 2022.
On December 8, 2022, Ofc. Sutton’s counsel was qualifying an expert witness, MPD Sgt. John J.
Brennan (Ret.), which should have been for the jury’s information only, as Sgt. Brennan had al-
ready survived the government’s motion to disqualify him on Daubert grounds, as had the gov-
ernment’s two experts. However, the government again sought to disqualify Sgt. Brennan during
the trial. The Court held a bench conference during which the Court stated to counsel, “I think
you have a little problem here.” The following exchange then took place, also at sidebar:
MR. HANNON: I think Your Honor is trying to curtail the defense case.
We've had a number of witnesses who have been ruled out of order. The govern-
ment took six weeks to try a case they said was going to take two.
THE COURT: That's not relevant.
MR. HANNON: We've done ours in two weeks.
THE COURT: Only because -- they took six weeks because you objected
to every goddamn thing.
MR. HANNON: Your Honor, I think that Your Honor has -- on the Mon-
day before Thanksgiving, Ms. Berkower announced another Assistant U.S. Attor-
ney was going to take her spot.
63
THE COURT: That's beside the point.
MR. HANNON: Your Honor has had two off-the-record bench confer-
ences in this trial [with Ms. Berkower].
THE COURT: Whoa, whoa, whoa.
MR. HANNON: One yesterday.
THE COURT: Mr. Hannon, I am going to –
(Open court)
THE COURT: The jury may leave.
Tr. Transcript 12/08/2022 AM at 55-6.
The witness who was still on the witness stand, adjacent to the jury, reported that he
could hear the Court’s profanity at Mr. Hannon, as did persons in the gallery. In addition, when
the Court discharged the jury, the Court threw its face mask across the front of the bench while
the jury was still in the jury box. Tr. Transcript 12/09/2022 PM at 53. Thereafter, counsel for
Ofc. Sutton expanded on his objection that the Court was unduly curtailing the defense case in
order to permit Ms. Berkower to participate in closing argument before the birth of her son.
Similarly, the next day during oral argument on Ofc. Sutton’s Rule 29 argument to the
Court, the following occurred:
MR. HANNON: -- because now the -- the government is proposing to say

-- and this is from the transcript of the previous Rule 29 hearing, quote, moreover,
the evidence in this case is also that the defendants -- Mr. Sutton was aware that
there was a possibility that Mr. Hylton-Brown might have been high at the time,
and so that increases the risk of death and serious bodily injury. That increases
the chances that Mr. Hylton-Brown could make a poor decision. Nevertheless, he
pursued.
How can they possibly rely on that as a basis for second-degree murder in
this case and say that to the jury on the indictment that's been filed? Our position
is that -- that, once again, it's going into the mental state of Mr. Hylton-Brown,
and how could a police officer who's pursuing someone for any reason -- or even
64
-- even an improper reason or one that the general orders would find aren't sup-
portable – be responsible for the conduct of the suspect because they're stoned?
That's crazy.
And -- and anything like that -- any verdict based upon that would turn po-
licing upside down. You can't pursue people if they're impaired. You can pursue
people –
THE COURT: There was a great deal of argument about whether the toxi-
cology report should come in or not and whether it was relevant, and the defense
-- both defendants were the biggest -- big proponents of its admission because it
had something to do with his mental state or -- now, I'm not going to phrase this
properly, but in my toxicology opinion, on admitting the toxicology report, I re-
lied on your arguments and on citations to the indictment about why you-all
thought it was relevant to both the second-degree murder charge and to the
obstruction charge. And I quoted parts of the indictment and parts of your argu-
ment and Mr. Zampogna's argument on the obstruction part.
MR. HANNON: Yes.
THE COURT: So you wanted it in, and the government didn't, and it's in.
MR. HANNON: No, Your Honor -- Your Honor limited your ruling to the
issue of -- of the collision and causation of the collision and expressly held to
your opinion consistent with what you've said repeatedly; that it can't come in.
THE COURT: But you also wanted the testimony in about how somebody
smelled alcohol on his breath, and you wanted the weaving and erratic driving to
come in, and it attributed, perhaps, to the fact that he had something in his
system.
MR. HANNON: That's true, but that's -- that's the defense. Is Your Honor
going to prevent us from doing that?
THE COURT: No. I'm going to permit both sides to argue legitimate infer-
ences from the evidence that's before the jury.
MR. HANNON: As to Mr. Hylton-Brown's mental state?
THE COURT: I'm going to permit both sides to make arguments -- infer-
ences from the evidence before the jury.
MR. HANNON: Including arguments such as the ones that I've quoted?
THE COURT: Well, you're viewing it in one sense, and you want me to
adopt your characterization of what is this relevant to, and I'm not going to buy it.
65
I'm not going to walk into your trap. You make your arguments. The government
will make their arguments.
MR. HANNON: I'm setting a trap?
THE COURT: I will rule -- I will rule, and I will rule on the instructions
when we get to that.
MR. HANNON: I'm set- -- I don't understand, Your Honor. I'm setting a
trap?
THE COURT: Well, you may not. Don't argue with me. Make your god-
damn argument and sit down.
(Mr. Hannon sits down as counsel table.)
Not now. You don't have to sit down now. I am not cutting off your argument,
Mr. Hannon. I am not cutting off your argument. You're welcome –
MR. HANNON (from counsel table): That's the second time you've said my
goddamn arguments.
THE COURT: Yes, it is. And I'm sorry if that is offensive. And I shouldn't
use that on the record. I agree with that. But, you know, it is difficult for judges
as well as for lawyers to maintain their cool every single minute, and after an
eight-week trial, I have some moments that I'm not -- there's some things that I
have said or the way I've said it that perhaps I shouldn't have. But you and I are
both adults, Mr. Hannon, and you've faced worse from judges, and you've
faced worse from lawyers on other sides, and so have I. And I apologize to you
for that characterization. I do not intend cut off your argument. I think I've been -
- I have certain things -- I have yelled, and I don't want to pick on people. I
have yelled at you. I have yelled at Mr. Baset. There are things that have been --
there are things in this trial that I thought were inappropriate or the way in which
it was done was inappropriate or redundant, redundant, redundant, and, you know,
I apologize for that -- the use of that. Sorry if you're offended by it.
I think I've been -- you can argue to the Court of Appeals if there's a con-
viction, but I think I've been eminently fair to both sides. I've ruled for and against
both sides on lots of things. There are a great many issues in this case that were
very hard issues to decide. I have done what I thought was right. You've disagreed
with me on many of them. You've agreed with me on some of them too. The gov-
ernment has disagreed with me on many of them. And, you know, there are
some novel issues that have arisen in this case. If there's a conviction, the Court of
Appeals will do it.
66
I'm sorry that I cannot keep my cool from 9:30 every morning until 5
o'clock every night every single day in light of what has happened in this court-
room over an eight-week period.
If you want to argue that there's -- I shouldn't have said that; that it's offen-
sive; that it's -- whatever you want to say, but the question before the Court of Ap-
peals --questions before the Court of Appeals will be whether I've been fair to
both sides on the merits and on the substance. Whether I've adequately or more
than fully considered the arguments that have been made by both sides, and those
things that are discretionary with the trial judge, they should -- but maybe
won't -- defer to my judgments. Those things that are questions of law that will
exercise their own judgment. Those things that they think I did that caused preju-
dice, if there were such, that affected the fairness of the verdict, they'll
do what they do, you know.
I -- I apologize. So let's take a ten-minute break, and Mr. Hannon can fin-
ish his argument, and then Mr. Baset or Ms. Berkower can make theirs.
Tr. Transcript 12/09/2022 PM 44-49.
After the recess and counsel completed his Rule 29 argument, counsel Ofc. Sutton de-
scribed the issue created by the Court’s conduct: “So, finally, my client has an attorney whom
the Court believes is playing games or trying to trap it and has been making goddamn objections,
and I need to speak to my client about that.” Id. at 54.
The Court should take this into consideration in ruling on Ofc. Sutton’s post-trial motion
for a new trial.
2. The Court’s Rulings on Chinendu Ukeekwe
On January 3, 2022, Ofc. Sutton filed a motion for Brady sanctions based on the govern-
ment’s suppression of the exculpatory eye-witness testimony of Uchendu. [ECF No. 67]. The
Court heard oral argument, and in a written opinion ordered a hearing on the motions. [ECF No.
191]. After completion of the hearing, the Court issued a Memorandum Opinion on September
27, 2022, in which the Court denied the motion in all respects. Memorandum Opinion and Order
67
[ECF No. 279]. In that Opinion, the Court made no findings of fact which supported its conclu-
sions that the prosecutors are exonerated of any misconduct whatsoever.
When Ofc. Sutton attempted to call Chinendu Ukeekwe as a witness at trial on December
6, 2022, the Court for the first time noted its belief that counsel for Ofc. Sutton was somehow re-
sponsible for the Court’s refusal to find a Brady violation in the government’s treatment of
Ukeekwe. The Court believed that counsel intentionally failed to interview Ukeekwe.
THE COURT: That's because your investigator didn't go out and talk to
him. Your investigator could have gone out and talked to him and didn't.
MR. HANNON: The fact of the matter is that that information wasn't
known at the time of the hearing.
THE COURT: It could have been known if you had used your investiga-
tor to further your Brady arguments. But you were afraid of what you would find,
so you didn't do so.
Tr. Transcript 12/06/2022 AM at 9. As we indicated above, this is not true, and the Court never
reported its belief on this issue in its ruling denying the Brady motion.
3. The Court’s Views on Flight
At a hearing on October 13, 2022, the Court made the following statement regarding Ofc.
Sutton’s intention to introduce evidence of Hylton-Brown’s unlawful flight from the police:
THE COURT: No, no. That's jury instruction. It's not for the jury. If you
have -- nobody is going to tell the jury that it's a crime to run from the police. It's
not a crime to run from the police. That is not coming into this trial, period. It's
not coming in. It is not coming in.
* * *
MR. HANNON: We've been saying it from the beginning.
THE COURT: And I've been disagreeing from the very beginning. It
can't be right. I mean, the D.C. Council can say that, and that's fine. But that's
not what this case is about. You can't say that every time a guy flees they have a
right to chase him. You can't say that every time a guy flees they have a right to
search him, seize him, stop him. People have a right to walk the streets. They
68
have a right to ride the streets. They have a right to say no to the police; I'm not
going to talk to you. They have a right to run from the police.
MR. HANNON: They do not have a right to flee the police who are at-
tempting to conduct a stop. They do not. Period.
THE COURT: You're wrong. I mean I disagree with that. That can't be
right. That can't be right.
Tr. Transcript 10/23/2022 at 47-49.
The Court ordered the Parties to brief the issue. See ECF Nos. 310, 316, 319.
The Court later issued an oral ruling concluding that D.C. Code § 50–2201.05 making it a
a misdemeanor or felony – depending on the circumstances – for a person to flee the po-
lice does not apply based on the Court’s interpretation of its statutory history. While the
trial was replete with testimony from police officers and experts that fleeing the police is
a crime in the District of Columbia, the Court refused Ofc. Sutton’s request to instruct the
jury in that law. Ofc. Sutton’s Proposed Special Jury Instruction No. 4 [ECF No. 403] at
3. The only impression the jury could draw is that the MPD officers testifying about the
effort to stop Hylton-Brown were lying. The Court acknowledged it has an obligation to
instruct the jury on the relevant law. The Court failed to do so on this issue critical to the
defense.
4. Intimidation of Police Witnesses
While it is the prerogative of the Court to question witnesses, the Court was particularly
active in its questioning of MPD police witnesses. While this questioning was pronounced dur-
ing the pre-trial hearing on Ofc. Sutton’s motion to introduce criminal conduct of Hylton-Brown,
the Court’s questioning of MPD officers continued in front of the jury and was prejudicial. Sev-
eral times, counsel for Ofc. Sutton alerted the Court to his concern by interrupting and asking
69
whether the Court had any more questions. The Court would generally stop at that point. Simi-
larly, the Court interrupted the testimony of Sgt. Brennan, stating in front of the jury that he
tended to give speeches rather than answers in the Court’s view. This contrasts with the Court
allowing everlasting questions and answers of the government’s expert witnesses.
Over the course of the trial, on repeated occasion, the Court asked a number of MPD of-
ficers testifying for Ofc. Sutton intimidating or factually assertive questions. Examples of this
type of questioning occurred during the testimony of Sgt. Gregory Hubyk on November 28,
2022. See Tr. Transcript 11/28/2022 AM at 26; see also Tr. Transcript 11/28/2022 PM at 35; 40.
Further examples can be identified in the testimony of Ofc. Kathryn Pitt. See Tr. Transcript
11/28/2022 PM at 51; 56; 63. Yet, the most egregious example of this type of questioning can be
found in the testimony of Ofc. Corey Novick. See Tr. Transcript 11/14/2022 PM at 67, 69, 84,
89; see also Tr. Transcript 11/29/2022 PM at 55, 92; Tr. Transcript 12/01/2022 PM at 28; Tr.
Transcript 12/02/2022 Full Day at 21, 45, 96, 99.
5. Curtailment of the Defense Case
The day before the Thanksgiving break, AUSA Risa Berkower announced that she was
departing the trial team in favor of AUSA Elizabeth Aloi because of the impending birth of her
son. However, Ms. Berkower was able to continue through all of the defense case. She departed
the prosecution team the Saturday before closing arguments. During the defendants’ case and
before Ms. Berkower’s departure, the Court held ex parte and off-the-record conversations with
Ms. Berkower at least two different times. Although the Court’s stated intention was to ensure
that Ms. Berkower was afforded certain conveniences by the Court to allow her to continue as
counsel during her pregnancy, the ex parte nature of the conversations was improper.
70
The Court’s desire to push the defense case to a completion was evident in the Court’s
explosive accusations against Ofc Sutton’s counsel that his arguments were prolonging the trial.
Counsel for Ofc. Sutton argued that the Court’s ruling in limine to preclude the testimony of Mr.
Ukeekwe and its initial indication it would prohibit the expert testimony of Sgt Brennan ap-
peared intended to enable Ms. Berkower to see the trial through closing argument. Given the na-
ture of the rulings, this conduct gave the trial an appearance of impropriety.
CONCLUSION
The Court gave the government every benefit of the doubt, knowing of course that this
Court may revisit the government’s novel strategy in the event of a guilty verdict. The Court
now should enter judgment of acquittal. The government’s theory does not amount to proof of a
crime. Many of the arguments in this motion also support the virtue of such a decision. Simi-
larly, there is no jurisdiction over the obstruction of justice count, requiring this Court to declare
the verdicts void. In the alternative, the Court should order a new trial.
Dated: February 27, 2023 Respectfully submitted,
HANNON LAW GROUP, LLP
s/J. Michael Hannon

J. Michael Hannon, #352526
1800 M Street, NW, Ste 850 S
Washington, DC 20036
Tel: (202) 232-1907
Fax: (202) 232-3704
jhannon@hannonlawgroup.com
Attorney for Defendant Terence D. Sutton, Jr.
71

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Case 1:21-cr-00598-PLF Document 449 Filed 02/27/23 Page 1 of 71

UNITED STATES DISTRICT COURT

UNITED STATES OF AMERICA :

TERENCE D. SUTTON, JR.’S MOTION

Ofc. Sutton presents the following:

Govt. Opp. to Mot. to Dismiss [ECF No. 206] at 12.

vestigations and prosecutions, as well as in the training of law enforcement officers.

I. ARREST OF JUDGMENT FOR LACK OF JURISDICTION

625, 630 (2002).

Hylton-Brown’s injuries were mortal.

constitute a federal civil rights violation as charged in the Indictment.

1. Proof of a Federal Offense is an Element of Obstruction of Justice and

In relevant part, 18 U.S.C. § 1512(b)(3) defines obstruction of justice as “engag[ing] in

commission or possible commission of a Federal offense ....” 18 U.S.C. § 1512(b)(3) (emphasis

supplied). Thus, to obstruct justice in violation of § 1512(b)(3), a defendant must knowingly,

ment [ECF No. 1] at ¶ 50. (Emphasis supplied).

engaged in misleading conduct, intended to hinder or delay the communication of information to

Court in United States v. Fowler, 563 U.S. 668 (2011):

with the following example:

2. No Civil Rights Violation Occurred Upon the Facts Alleged.

a prosecution is the whale that Justice Breyer described.

verdict of the jury is void.

3. The United States Attorney Abused His Authority

grand jury, and when if at all, such an investigation was abandoned.

tion for reconsideration [ECF No. 250].

C. MURDER IN THE SECOND DEGREE

738 (D.C. Cir. 1989).

U.S. 77, 81 (1927)).

II. NEW TRIAL IN THE INTERESTS OF JUSTICE

court or state court. That is his choice.

862 F.2d at 1319.

B. THE COURT DENIED OFC. SUTTON THE DEFENSE OF

this high level review occurred.

See Rachel Harmon, The Law of Policing at 405.

Graham v. Connor, 490 U.S. 386 (1989).

(c) A trier of fact shall consider:

(2) The totality of the circumstances, which shall include:

(A) Whether the subject of the use of deadly force:

(B) Whether the law enforcement officer engaged in de-escalation

D.C. Code § 5-351.01.

“deadly force,” he could not avail himself of this statutory defense.

511.3 [ECF No. 189-3] at 3.

fice. See https://ccrc.dc.gov/page/recommendations. See also Reply in Support of Ofc. Sutton

Motion to Dismiss Pursuant to Rule 12 [ECF No. 200] at 8-13.

was “constitutional.” Id. at 30.

U.S.C. § 1983, it is constitutional in the face of a criminal prosecution.

239 (D.C. 2020) (en banc) (Easterly, J., concurring).

sion cannot be applied to Ofc. Sutton. Id.

1. Reasoning of the Government and the Court

feat this application of Supreme Court precedent.

ernment’s characterization of Ofc. Sutton’s argument:

Hr. Transcript 08/03/2022 at 5-6.

the standard of Constitutional Policing as follows:

ton the use of such a defense.

As a consequence, the government was permitted to rely on its unprecedented theory of

Dismiss Under Rule 12 [ECF No. 188] at 10-17.

2. The Court Refused to Permit Experts to Opine on the Constitutional

bounds in other ways we discuss further.

a. Ofc. Sutton’s Expert Witnesses

FLETC and a teacher and curriculum master in law enforcement procedures.

to testify about “the law.”

b. Cross Examination of the Government’s Experts

and commented as follows: