United States v. Sutton

Decision Date22 April 2022
Docket NumberCRIMINAL 21-0598 (PLF)
CourtU.S. District Court — District of Columbia


Defendants Terence Sutton and Andrew Zabavsky have filed several motions to compel discovery, requesting that the Court order the government to produce a wide variety of documents and materials. The Court will reserve ruling on Mr. Sutton's Fourth Motion to Compel Disclosure of Requested Discovery [Dkt. No. 146], his Fifth Motion to Compel Disclosure of Requested Discovery [Dkt. No. 152], and his Sixth Motion to Compel Disclosure of Requested Discovery [Dkt. No. 153]. This Opinion will address the remainder of the motions to compel discovery. After careful consideration of the parties' arguments and the entire record in this case, the Court will grant in part and deny in part Mr. Sutton's third Motion to Compel Disclosure of Requested Discovery [Dkt. No. 122]. It will deny in their entirety his Second Motion to Compel Discovery [Dkt. No. 40] and Mr. Zabavsky's First Motion to Compel Disclosure of Requested Discovery [Dkt. No 130].[1]


On September 23, 2021, the grand jury returned an indictment charging Mr. Sutton with one count of murder in the second degree, in violation of D.C. Code § 22-2103, and charging both Mr. Sutton and Mr. Zabavsky with one count of conspiracy, in violation of 18 U.S.C. § 371, and one count of obstruction of justice, in violation of 18 U.S.C §§ 1512(b)(3), 2. See Indictment ¶¶ 29, 31, 50. As relevant to Mr. Sutton's second motion to compel discovery, the indictment bears the ink signature of former Acting United States Attorney Channing D. Phillips. Id. at 13.

The indictment alleges that on October 23, 2020, Mr. Sutton, an officer of the District of Columbia Metropolitan Police Department (“MPD”), caused the death of Karon Hylton-Brown by recklessly pursuing him in a police vehicle for several blocks and through back alleyways at high speeds. See Indictment ¶¶ 1-2, 10-12, 20-27. Mr Hylton-Brown, who was riding a rental moped, was mortally wounded when he exited an alleyway and was hit by oncoming traffic, suffering severe head trauma; he died two days later. See Id. ¶¶ 13, 18, 28.

The indictment also alleges that Mr. Sutton and his supervisor Andrew Zabavsky, conspired to cover up Mr. Sutton's involvement in these events by, among other things, willfully neglecting to collect and preserve evidence at the site of the collision and providing misleading and incomplete details of the incident to their superiors. See Id. ¶¶ 33-48. According to the indictment, the defendants obfuscated “the circumstances of the traffic collision leading to 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.” Id. ¶ 32.

On October 4, 2021, the Court denied Mr. Sutton's first motion to compel discovery. See October 4, 2021 Minute Order. Mr. Sutton filed his second motion to compel discovery on October 15, 2021, and his third motion to compel discovery on January 25, 2022. See Sutton 2d Mot.; Sutton 3d Mot. Mr. Zabavsky filed a motion to compel discovery, his first and only so far, on February 11, 2022. See Zabavsky 1st Mot. The government opposes the vast majority of the defendants' individual requests for discovery but has noted that some of the requested documents and materials either have already been produced or will be produced closer to trial. See, e.g., Opp. to Sutton 3d Mot. at 10-11; Opp. to Zabavsky 1st Mot. at 3-5, 7. The motions are fully briefed, and the Court heard oral argument on Mr. Sutton's second motion to compel discovery on January 25, 2022. See January 25, 2022 Minute Entry. The motions to compel discovery that are the subject of this Opinion therefore are now ripe for resolution.


Rule 16 of the Federal Rules of Criminal Procedure provides, in pertinent part:

Upon a defendant's request, the government must permit the defendant to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or places, or copies or portions of any of these items, if the item is within the government's possession, custody, or control and: (i) the item is material to preparing the defense; (ii) the government intends to use the item in its case-in-chief at trial; or (iii) the item was obtained from or belongs to the defendant.

FED. R. CRIM. P. 16(a)(1)(E) (emphasis added). Under Rule 16, evidence is material to preparing a defense “as long as there is a strong indication that it will play an important role in uncovering admissible evidence, aiding witness preparation, corroborating testimony, or assisting impeachment or rebuttal.” United States v. Marshall, 132 F.3d 63, 68 (D.C. Cir. 1998) (quoting United States v. Lloyd, 992 F.2d 348, 351 (D.C. Cir. 1993)). Material evidence “is not limited to evidence that is favorable or helpful to the defense and does not immunize inculpatory evidence from disclosure.” United States v. Safavian, 233 F.R.D. 12, 15 (D.D.C. 2005). A defendant's burden to demonstrate materiality is not a “heavy” one, see United States v. Slough, 22 F.Supp.3d 1, 4 (D.D.C. 2014), and the government “cannot take a narrow reading of the term ‘material' in making its decisions on what to disclose under Rule 16, ” United States v. Safavian, 233 F.R.D. at 15. Indeed, Rule 16 is intended to provide a criminal defendant ‘the widest possible opportunity to inspect and receive such materials in the possession of the Government as may aid him in presenting his side of the case.' Id. (quoting United States v. Poindexter, 727 F.Supp. 1470, 1473 (D.D.C. 1989)).

Nevertheless, to be material the evidence must “bear ‘more than some abstract logical relationship to the issues in the case.” United States v. Slough, 22 F.Supp.3d at 5 (quoting United States v. Marshall, 132 F.3d at 69). Moreover, the evidence sought must “be related ‘to refutation of the government's case in chief,' and not ‘to establishment of an independent . . . bar to the prosecution.' United States v. Apodaca, 287 F.Supp.3d 21, 39 (D.D.C. 2017) (quoting United States v. Rashed, 234 F.3d 1280, 1285 (D.C. Cir. 2000)); see also United States v. Armstrong, 517 U.S. 456, 462 (1996).

Rule 6 of the Federal Rules of Criminal Procedure permits the disclosure of grand jury materials “at the request of a defendant who shows that a ground may exist to dismiss the indictment because of a matter that occurred before the grand jury.” FED. R. CRIM. P. 6(e)(3)(E)(ii). To obtain such disclosure, a defendant must carry the “heavy burden of showing ‘that a particularized need exists' that ‘outweighs the policy of secrecy' of grand jury materials. United States v. Apodaca, 287 F.Supp.3d at 47. “This particularized need requires a ‘factual basis'-‘conclusory or speculative allegations of misconduct' do not suffice.” United States v. Wright, 234 F.Supp.3d 45, 47 (D.D.C. 2017) (quoting United States v. Naegele, 474 F.Supp.2d 9, 10 (D.D.C. 2007)). “The threshold for such a showing is very demanding, and the disclosure of grand jury information is ‘exceedingly rare.' Id. (quoting United States v. Naegele, 474 F.Supp.2d at 11).


A. Mr. Sutton's Second Motion to Compel Discovery

In his second motion to compel discovery, Mr. Sutton requests the production of documents that evidence the following:

1. Authority of Acting U.S. Attorney Channing D. Phillips to sign the Indictment returned by the Grand Jury;
2. That USAO, DOJ, the FBI, and/or the Grand Jury were investigating possible violations of 18 U.S.C. § 242;
3. Whether the Grand Jury was asked to return an Indictment including a charge of violating 18 U.S.C. § 242, and any vote on such an Indictment;
4. The notification requirements contained in Justice Manual 8-3.120;
5. Whether this case was determined to be one of national interest pursuant to Justice Manual 8-3.130;
6. Notices and approvals required by Justice Manual 8-3.140.

Sutton 2d Mot. at 1. For the following reasons, the Court concludes that the requested materials are not discoverable under the Federal Rules and therefore will deny Mr. Sutton's second motion to compel discovery.[2]

1. Discovery Requests Related to the Government's Alleged Failure to Comply with DOJ Policies

All six requests in Mr. Sutton's second motion to compel discovery pertain to Mr. Sutton's allegation that the government failed to comply with DOJ policies governing the investigation and prosecution of civil rights cases. Mr. Sutton's suspicions relate to the policies set forth in the Justice Manual - a document “prepared under the supervision of the Attorney General and under the direction of the Deputy Attorney General that “provides internal DOJ guidance.” Justice Manual § 1-1.200. Specifically, he conjectures that former Acting U.S. Attorney Phillips did not coordinate with or receive express authorization from the Assistant Attorney General for the Civil Rights Division before signing the indictment in this case. See Sutton 2d Mot. at 2. Mr. Sutton argues that, if that were true, he would be entitled “to present a motion for dismissal of the Indictment.” See Sutton 2d Mot. at 2.

To support such a motion, Mr. Sutton moves to compel discovery regarding the government's investigation and decision to prosecute this case. In Requests 1 and 4 through 6, he seeks documents regarding former Acting U.S. Attorney Phillips's authority to sign the indictment, as well as documents concerning the government's compliance with several provisions of the Justice Manual requiring coordination between the U.S. Attorney's Office and the Civil Rights Division in...

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