United States v. Sutton

• Decision Date: 21 April 2022
• Docket Number: Criminal 21-0598 (PLF)
• Parties: UNITED STATES OF AMERICA v. TERENCE SUTTON, and ANDREW ZABAVSKY, Defendants.
• Court: U.S. District Court — District of Columbia

UNITED STATES OF AMERICA v. TERENCE SUTTON, and ANDREW ZABAVSKY, Defendants.

Criminal No. 21-0598 (PLF)

United States District Court, District of Columbia

April 21, 2022

OPINION AND ORDER

Paul L. Friedman United States District Judge.

Defendants Terence Sutton and Andrew Zabavsky have separately filed motions for bills of particulars pursuant to Rule 7(f) of the Federal Rules of Criminal Procedure. See Zabavsky's Motion for a Bill of Particulars (“Zabavsky Mot.”) [Dkt. No. 113]; Officer Sutton's Motion for a Bill of Particulars (“Sutton Mot.”) [Dkt. No. 118], The motions request that the Court direct the government to provide a long list of particulars regarding all three counts in the indictment. The United States opposes the motions, asserting that the indictment “provides the defendant[s] with substantial detail about the proof underlying the charges, ” and that defendants have received “extensive well-organized discovery.” Government's Opposition to Zabavsky's Motion for a Bill of Particulars (“Gov't Opp. Zabavsky”) [Dkt. No. 119] at 1; see also Government's Opposition to Sutton's Motion for a Bill of Particulars (“Gov't Opp Sutton”) [Dkt. No. 129] at 1. For the following reasons, the Court concludes that the indictment provides sufficient detail to allow the defendants to understand the charges against them and adequately prepare for trial. The Court therefore will deny Mr. Sutton and Mr. Zabavsky's motions in full.^[1]

I. BACKGROUND

On September 23, 2021, a grand jury indicted Metropolitan Police Department, (“MPD”) officers Terence Sutton and Andrew Zabavsky, charging conspiracy, in violation of 18 U.S.C. § 371, and obstruction of justice, in violation of 18 U.S.C. § 1512(b)(3). Indictment at 1. Mr. Sutton was also charged with second degree murder in violation of D.C. Code § 22-2013. Id.

The thirteen-page, fifty-paragraph speaking indictment alleges that on the evening of October 23, 2020, Mr. Sutton engaged in a police vehicular pursuit of Karon Hylton-Brown. See Indictment at ¶¶ 1-2. The indictment states that Mr. Sutton caused Mr. Hylton-Brown's death by engaging in a reckless pursuit that ended in a fatal traffic collision. Id. It further alleges that between October 23, 2020, and October 24, 2020, in order to prevent an internal investigation and referral to federal authorities for a criminal civil rights investigation, Mr. Sutton and Mr Zabavsky conspired to hide from MPD officials the circumstances of the pursuit and collision. Id. at ¶¶ 3, 31 The government represents that it has provided defendants with discovery, “includ[ing], among other things, grand jury testimony from the more than 20 witnesses who testified during the investigation; reports of witness interviews and the contemporaneous notes of those interviews taken by the investigating agents; photographs and written reports from the crash scene; body-worn cameras (BWC) from the MPD officers involved in this incident and the officers who responded to the scene; video from various surveillance cameras that captured portions of the police chase, including traffic cameras and security cameras from businesses and homes; MPD policies concerning police chases, use of force, and the handling of traffic crash scenes; and the training received by both defendants on these topics, and; a list of possible witnesses.” Gov't Opp. Sutton at 2.

On January 5, 2022, Mr. Zabavsky filed a motion for a bill of particulars requesting that the Court direct the government to provide additional information, or particulars, regarding Counts Two and Three of the aforementioned indictment. See Zabavsky Mot. Mr. Zabavsky argues that the information sought in his motion “is absolutely necessary to permit [him] to adequately prepare a defense.” Id. at 5. On January 18, 2022, Mr. Sutton filed a similar motion requesting particulars relating to all three counts in the indictment. See Sutton Mot. Mr. Sutton similarly argues that “the indictment raises factual questions that will hinder [his] ability ... to prepare for trial, and in particular prepare a motion to dismiss.” Id. at 10-11.

II. LEGAL STANDARD

Under the Federal Rules of Criminal Procedure, a “court may direct the government to file a bill of particulars.” FED. R. CRIM. P. 7(f). A bill of particulars is a formal written statement by the government that provides details of the charges in the indictment. 1 CHARLES ALAN WRIGHT & ANDREW D. LEIPOLD, FEDERAL PRACTICE AND PROCEDURE § 130 (4th ed. 2021). “[R]equests for bills of particulars are [] far from routine.” Id.; see also United States v. Sepulveda, 15 F.3d 1161, 1192 (1st Cir. 1993) (“Motions for bills of particulars are seldom employed in modern federal practice.”). “[I]t is within the discretion of the trial court to determine whether a bill of particulars should be provided, and the court should grant a motion for a bill of particulars to the extent it believes it is necessary to allow the defendants to adequately prepare for and avoid surprise at trial.” United States v. Bazezew, 783 F.Supp.2d 160, 167 (D.D.C. 2011) (emphasis added).

A bill of particulars may not be used by a defendant as a discovery tool or a device to preview the government's evidence or theory of the case. United States v. Sanford Ltd., 841 F.Supp.2d 309, 316 (D.D.C. 2012). A bill of particulars is instead “designed to limit and define the government's case, ” Id. (quoting United States v. Baker, Crim. No. 08-0075, 2010 WL 936537, at *2 (M.D. Pa. Mar. 15, 2010)), and “enable the defendants to better understand the substance of the charges against them and to prepare their defenses, ” United States v. Bazezew, 783 F.Supp.2d at 167; United States v. Mejia, 448 F.3d 436, 445 (D.C. Cir. 2006). Courts tend to grant bills of particulars in cases where the indictment alleges criminal activity that spans a significant period of time and involves voluminous discovery, multiple actors, and complex transactions. See, e.g., United States v. Trie, 21 F.Supp.2d 7, 22 (D.D.C 1998).

In ruling on a motion for a bill of particulars, “[t]he Court must strike a prudent balance between the legitimate interests of the government and the defendant.” United States v. Manafort, Crim. No. 17-0201-01, 2018 WL 10394893, at *1 (D.D.C. June 12, 2018) (quotations omitted). Specifically, the court accounts for “the government's need to avoid prematurely disclosing evidentiary matters to the extent that it will be unduly confined in presenting its evidence at trial.” United States v. Sanford Ltd., 841 F.Supp.2d at 316 (quotations omitted). Courts weigh “the complexity of the crime charged, the clarity of the indictment, and the degree of discovery and other sources of information otherwise available to the defendants.” WRIGHT & LEIPOLD, supra, § 130.

III. DISCUSSION

Mr. Sutton and Mr. Zabavsky's motions include a combined forty-six requests relating to all three counts in the indictment. See Zabavsky Mot at 1-2; Sutton Mot. at 4-8. For the reasons detailed below, none of the requested information is “necessary to allow the defendants to adequately prepare for and avoid surprise at trial.” United States v. Bazezew, 783 F.Supp.2d at 167. All forty-six requests are therefore denied.

A. Requests Pertaining to Count One - Second Degree Murder

Mr. Sutton's motion includes the following twenty-five requests relating to Count One, which charges Mr. Sutton with second degree murder:

1. With respect to Count One, each point in time at which the government alleges Officer Sutton engaged in conduct in violation of any MPD General Order and the manner in which that conduct violated the General Order.

2. With respect to Count One, the evidence that indicates officers were engaged in a lawful Terry stop under MPD General Orders on October 23, 2020.

3. With respect to Count One, evidence as to specific moments when the government contends Officer Sutton was not engaged in the lawful performance of police duties on October 23-24 2020.

4. With respect to Count One, the nature of any and all evidence on which the government intends to rely that Officer Sutton had notice that a violation of General Order 301.03 would constitute second-degree murder.

5. With respect to Count One, the nature of any evidence on which the government intends to rely to prove that Officer Sutton was trained on General Order 301.03.

6. With respect to Count One, identity of any MPD officer that has been subject to criminal prosecution for violation of General Order 301.03, as well as the case number.

7. With respect to Count One, any evidence that Officer Sutton violated any constitutional rights of Mr. Hylton-Brown.

8. With respect to Count One, any evidence that MPD General Orders afforded Mr. Hylton-Brown any right to be free from arrest for his conduct.

9. With respect to Count One, whether probable cause existed for the arrest of Mr. Hylton-Brown for any offense, regardless of any requirement for a warrant or restriction on an actual arrest imposed by MPD General Orders.

10. With respect to Count One, an identification of every moment in time that the government alleges Officer Sutton was engaged in a “police vehicular pursuit” and the nature of any evidence that supports the allegation.

a. With respect to Count One, state with specificity the evidence which indicates Officer Sutton violated any part of General Order 301.03 and how such evidence proves a violation of General Order 301.03 11. With respect to Count One, whether “pursue”, “pursued”, and “pursuing” are interchangeable with “engaged in a ‘police vehicular pursuit'” in every instance used in the Indictment. See Indictment ¶¶ 8, 10, 11, 24, 26(d), 27.^[2]

12. With respect to Count One whether the government contends that “pursuing” as used on General Order No. 301.03, Pt.

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