United States v. Sutton

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

____________________________________
)
UNITED STATES OF AMERICA )
)
v. ) Criminal No. 21-0598-1 (PLF)
)
TERENCE SUTTON, )
)
Defendant. )
____________________________________)

OPINION AND ORDER

Defendant Terence Sutton has filed several motions to compel discovery,

requesting that the Court order the government to produce a wide variety of documents and

materials. This Court previously denied Mr. Sutton’s second motion to compel discovery in its

entirety and granted in part and denied in part his third motion to compel discovery. See United

States v. Sutton, Crim. No. 21-0598, 2022 WL 1202741, at *17 (D.D.C. Apr. 22, 2022); see also

United States v. Sutton, Crim. No. 21-0598, 2022 WL 2828995, at *4 (D.D.C. July 20, 2022)

(granting Mr. Sutton’s motion for reconsideration). This Opinion will address Mr. Sutton’s

fourth and fifth motions to compel discovery. After careful consideration of the parties’

arguments and the entire record in this case, the Court will deny in their entirety both Mr.

Sutton’s Fourth Motion to Compel Disclosure of Requested Discovery [Dkt. No. 146] and his

Fifth Motion to Compel Disclosure of Requested Discovery [Dkt. No. 152]. 1

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The documents and the exhibits attached thereto that the Court has considered in
connection with the pending motions include: Indictment [Dkt. No. 1]; Mr. Sutton’s Fourth
Motion to Compel Disclosure of Requested Discovery (“Sutton 4th Mot.”) [Dkt. No. 146]; the
Government’s Opposition to Defendant Sutton’s Fourth Motion to Compel Disclosure of
Requested Discovery (“Opp. to Sutton 4th Mot.”) [Dkt. No. 148]; Mr. Sutton’s Reply in Support
of His Fourth Motion to Compel Disclosure of Requested Discovery (“Reply ISO Sutton 4th
 I. BACKGROUND

This opinion assumes familiarity with the case and therefore includes only the

factual and procedural history that is relevant here. See generally United States v. Sutton, 2022

WL 1202741, at *1-2.

Mr. Sutton, an officer of the District of Columbia Metropolitan Police Department

(“MPD”), has been charged by indictment with one count of murder in the second degree, in

violation of D.C. Code § 22-2103, one count of conspiracy to obstruct justice, 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.

The indictment alleges that on October 23, 2020, Mr. Sutton caused the death of Karon Hylton-

Brown by engaging in a reckless vehicular pursuit that resulted in a fatal traffic collision. See

Indictment ¶¶ 1-2, 10-13, 18, 20-28. Pertinent to Mr. Sutton’s motions to compel discovery, the

indictment suggests that Mr. Sutton knowingly violated MPD policy (set forth in an internal

“General Order”) prohibiting officers from “pursuing a vehicle for the purpose of [e]ffecting a

stop for a traffic violation.” Id. ¶ 8; see also General Order No. 301.03 § IV.F (Feb. 25, 2003)

[Dkt. No. 150] at 22. 2 The indictment further alleges that, after the crash, Mr. Sutton and his

supervisor, Andrew Zabavsky, conspired to conceal the circumstances of the pursuit and

collision from MPD officials. See id. ¶¶ 33-48.

Mot.”) [Dkt. No. 150]; Mr. Sutton’s Fifth Motion to Compel Disclosure of Requested Discovery
(“Sutton 5th Mot.”) [Dkt. No. 152]; the Government’s Opposition to Defendant Sutton’s Fifth
Motion to Compel Disclosure of Requested Discovery; Mr. Sutton’s Reply in Support of His
Fifth Motion to Compel Disclosure of Requested Discovery (“Reply ISO Sutton 5th Mot.”) [Dkt.
No. 170]; Mr. Sutton’s Motion for Reconsideration of the Court’s Order of April 22, 2022, and
Supplemental Brief in Response to Order (“Sutton Suppl. Brief”) [Dkt. No. 171]; and
Government’s Supplemental Brief Concerning Sutton’s Discovery Request #8 [Dkt. No. 172].
2
Page number citations to documents that the parties have filed refer to those that
the Court’s electronic case filing system automatically assigns, except for citations to trial
transcripts, in which case page number citations refer to the original page and line numbers.

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 Mr. Sutton filed his fourth motion to compel discovery on March 16, 2022, and

his fifth motion to compel discovery on April 12, 2022. See Sutton 4th Mot.; Sutton 5th Mot.

The government opposes all of Mr. Sutton’s individual requests but notes that some of the

requested documents and materials are discoverable and will be produced closer to trial. See,

e.g., Opp. to Sutton 4th Mot. at 6. Both motions are now fully briefed and ripe for resolution.

II. LEGAL STANDARD

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); see also United

States v. Oseguera Gonzalez, 507 F. Supp. 3d 137, 168 (D.D.C. 2020) (“Rule 16(a)(1)(E) applies

equally to exculpatory and inculpatory evidence, since ‘it is just as important to the preparation

of a defense to know its potential pitfalls as it is to know its strengths.’” (quoting United States v.

Marshall, 132 F.3d at 67)).

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 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, “Rule 16 does not authorize a blanket request to see the

prosecution’s file.” United States v. Oseguera Gonzalez, 507 F. Supp. 3d at 168 (quoting United

States v. Maranzino, 860 F.2d 981, 985-86 (10th Cir. 1988)). To be material, the requested

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)); accord United States v. Oseguera Gonzalez, 507 F. Supp. 3d at

168; see also United States v. Armstrong, 517 U.S. 456, 462 (1996).

III. DISCUSSION

A. Mr. Sutton’s Fourth Motion to Compel Discovery

In his fourth motion to compel discovery, Mr. Sutton requests that the

government:

1. Identify all cases where a federal prosecutor’s office charged a
law enforcement officer with any homicide offense in relation to a
police car chase where a vehicular accident occurred in the course
of the chase.

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2. Identify all cases where a federal prosecutor’s office charged a
law enforcement officer with only a state (including territories and
the District of Columbia) criminal offense in relation to a police
car chase where a vehicular accident occurred in the course of the
chase.

3. Provide recording or summaries of any statements made by
prosecutors in USAO-DC to MPD officers regarding car chases
and/or MPD General Order No. 301.03.

4. Identify all cases where USAO-DC brought charges against the
suspect, either in D.C. Superior Court or U.S. District Court for
D.C., after police engaged in a chase to effectuate a traffic stop
since MPD General Order No. 301.03 went into effect.

5. Identify all cases where a law enforcement officer violated
MPD General Order No. 301.03 and USAO did or did not bring
criminal charges against the law enforcement officer involved.

6. Provide documents including memoranda and declination
letters drafted by any section of the USAO which relate to an
assessment of criminal prosecution of law enforcement for car
chases and/or violations of MPD General Order No. 301.03.

7. Provide any USAO policies and guidance which instruct
AUSA to screen cases for police conduct which violates MPD
General Orders.

8. Provide any DOJ or USAO policies or guidance which
precludes filing charges against a suspect because an investigating
officer violated MPD General Orders.

9. Provide recordings or summaries of any/all statements by
prosecutors to MPD officers regarding the criminal implications of
MPD General Orders.

10. Provide notice pursuant to Rule 404(b) of the Federal Rules of
Evidence for any evidence of any other crime, wrong, or act that
the government intends to offer at trial, and provide all
discoverable information and evidence pertaining to any uncharged
misconduct that the government would be required to provide if
the uncharged misconduct was actually charged.

11. List all law enforcement officers that the government plans to
call and disclose pertinent Brady information from the personnel
files of those officers if they were involved in the charged incident
and related investigation.

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 12. Pursuant to Brady and its progeny, provide all information
relating to government agreements/deals with any witnesses in this
case.

13. Pursuant to Brady and its progeny, provide all evidence of bias
of government witnesses.

14. Pursuant to Brady and its progeny, provide all evidence of
misconduct by government witnesses.

15. Pursuant to Brady and its progeny, provide all contradictory or
inconsistent statements and all documentation of such by
prosecutors and law enforcement from interviews with government
witnesses in this case.

16. Pursuant to Brady and its progeny, provide all Statements of
potential witnesses not called to testify.

17. Pursuant to Brady and its progeny, provide all Expert reports
inconsistent with the government case or tends to support the
defense case.

See Sutton 4th Mot. at 1-2. For the following reasons, the Court will deny Mr. Sutton’s fourth

motion to compel discovery in its entirety.

1. Discovery Requests for Information Regarding Unrelated Cases and General
DOJ and MPD Policies or Guidance

Across Requests 1 through 9, Mr. Sutton seeks information regarding the prior

treatment of police vehicular pursuits by federal prosecutors’ offices – including the U.S.

Attorney’s Office for the District of Columbia – in circumstances unrelated to this case. In

addition to a number of these requests being overbroad, most relate to the prosecutorial

discretion that underlies the decision to charge an officer based upon the evidence of alleged

criminal conduct presented in his or her individual case. For example, in Requests 1, 2, and 4

through 6, Mr. Sutton asks the government to identify all other circumstances where a police

officer has been investigated or prosecuted by the U.S. Attorney’s Office for the District of

Columbia or other federal prosecutor for participating in a fatal police car chase or for violating

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MPD policies regarding the pursuit of fleeing suspects. See Sutton 4th Mot. at 1. And in

Requests 3 and 7 through 9, he seeks internal DOJ policies regarding the prosecution of police

officers as well as any communications between federal prosecutors and MPD officers regarding

the potential consequences of violating MPD policies. See id. at 1-2. The government opposes

the requests, arguing that they are all “immaterial to the questions whether Defendant Sutton

committed the second-degree murder and cover-up with which he is charged.” Opp. to Sutton

4th Mot. at 3. The Court will deny Requests 1 through 9 in full.

Mr. Sutton first argues that these discovery requests are “material” to his defense

because they will demonstrate that the “indictment is novel.” Sutton 4th Mot. at 6-8; see also

Reply ISO Sutton 4th Mot. at 5 (“The discovery sought by Ofc. Sutton will show that no similar

case has ever been prosecuted by the federal government.”). Mr. Sutton also suggests that such

discovery would support either a motion to dismiss the second degree murder charge because

that charge seeks to “apply[] a novel construction of a criminal statute to conduct that neither the

statute nor any prior judicial decision has fairly disclosed to be within its scope,” Reply ISO

Sutton 4th Mot. at 3-4 (quoting United States v. Lanier, 520 U.S. 259, 266 (1997)), or a motion

to dismiss the indictment in its entirety on a theory of qualified immunity, see id. at 4-5 (citing

Bushrod v. District of Columbia, 521 F. Supp. 3d 1, 20-21, 30 (D.D.C. 2021)). 3 As explained

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On June 29, 2022, Mr. Sutton filed two motions to dismiss the indictment, one of
which raised both of these arguments. See Mr. Sutton’s Motion to Dismiss the Indictment
Pursuant to FED. R. CRIM. P. 12(b)(3)(B)(v) [Dkt. No. 188] at 4, 18-20 (arguing that Mr. Sutton
must have been afforded “fair notice” that his conduct was criminal in order to be criminally
charged with murder); see also id. at 10-17 (arguing that Mr. Sutton cannot be criminally
prosecuted unless he violated the constitutional rights of Mr. Hylton-Brown). On August 3,
2022, the Court issued its oral ruling denying Mr. Sutton’s motion to dismiss the indictment
pursuant to FED. R. CRIM. P. 12(b)(3)(B)(v) in its entirety, rejecting both arguments. See
August 4, 2022 Memorandum Opinion and Order [Dkt. No. 215]. Thus, not only was the
requested discovery unnecessary for Mr. Sutton to in fact bring his motions to dismiss the

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above, however, under Rule 16(a)(1)(E) “the discovery 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 at 39 (quoting United States v.

Rashed, 234 F.3d at 1285)). Whether the government has previously prosecuted a police officer

for comparable alleged misconduct is irrelevant to rebutting the government’s direct evidence

against Mr. Sutton and would not “significantly . . . alter the quantum of proof in his favor.” Id.

(quoting United States v. Libby, 429 F. Supp. 2d 1, 7 (D.D.C. 2006)). And the purported

uniqueness of the charges in this case is not itself a valid basis for compelling disclosure of

Requests 1 through 9.

Mr. Sutton also contends that his discovery requests are relevant to “rebutting the

government’s factual assertions” regarding the mens rea element of both the murder and the

obstruction of justice charges. See Reply ISO Sutton 4th Mot. at 11-12. Specifically, he argues

that the indictment alleges that he knew both that violating the MPD policy regarding vehicular

pursuits would “carry criminal penalties” and that “a civil rights investigation would follow” Mr.

Hylton-Brown’s collision and resultant death. Id. He suggests that the requested discovery

would illuminate whether Mr. Sutton in fact knew such things. See id. The Court disagrees.

To begin, Mr. Sutton mischaracterizes the allegations in this case. Contrary to

Mr. Sutton’s assertions, the indictment does not in fact allege that Mr. Sutton knew with

certainty that violating MPD policies would expose him to criminal liability or that a civil rights

investigation was imminent. Rather, the indictment alleges that Mr. Sutton acted with

“conscious disregard of an extreme risk of death and serious bodily injury,” exhibited in part by

indictment, the Court has concluded as a matter of law that Mr. Sutton’s underlying arguments
for dismissal, which the discovery arguably would have supported, were meritless.

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his alleged violation of the MPD policy governing vehicular pursuits. Indictment ¶¶ 8, 29; see

United States v. Sutton, 2022 WL 1202741, at *10; see also Williams v. United States, 858 A.2d

984, 998-99 (D.C. 2004) (discussing the elements of second degree murder). And the indictment

alleges that he conspired to conceal the circumstances of Mr. Hylton-Brown’s death from MPD

officials “to prevent an internal investigation of the incident and referral of the matter to federal

authorities.” Indictment ¶ 32; see id. ¶ 50 (alleging that Mr. Sutton “knowingly engaged in

misleading conduct toward another person, and attempted to do so, with intend to hinder, delay,

and prevent the communication to a law enforcement officer of the United States information

relating to the commission and possible commission of a Federal offense” (emphasis added));

United States v. Sutton, Crim. No. 21-0598, 2022 WL 1183797, at *8 (D.D.C. Apr. 21, 2022)

(“Th[e] [obstruction of justice] statute does not require that any federal civil rights investigation

actually have occurred, let alone that the existence of one be pled in the indictment. Rather, the

government need only prove ‘the possible existence of a federal crime and a defendant’s

intention to thwart an inquiry into that crime.’” (quoting United States v. Ring, 628 F. Supp. 2d

195, 220 (D.D.C. 2009))); see also United States v. Hawkins, 185 F. Supp. 3d 114, 124 (D.D.C.

2016) (enumerating the elements of obstruction of justice).

Moreover, Mr. Sutton has failed to explain how his personal state of mind may

have been influenced by the documents and materials that he seeks, which all originate from

unrelated cases. He has not, for example, explained how federal prosecutors’ investigation and

prosecution of other police car chases would have affected his state of mind while pursuing Mr.

Hylton-Brown or when he allegedly obfuscated his role in the chase. Nor has he explained how

“memoranda and declination letters” drafted by the U.S. Attorney’s Office in other cases would

have influenced his mens rea. See Sutton 4th Mot. at 1 (Requests 1-2, 6). And although certain

9
materials may be relevant to establishing whether Mr. Sutton grossly deviated from a reasonable

standard of care when he pursued Mr. Hylton-Brown, for purposes of establishing whether he

acted with a “malice” so as to have committed second degree murder, see United States v.

Sutton, 2022 WL 2828995, at *3, federal prosecutors’ treatment of police vehicular pursuits –

particularly in other jurisdictions with widely varying factual circumstances – is not relevant to

establishing the standard of care that was applicable to Mr. Sutton. Simply put, Requests 1

through 9 bear only an “abstract relationship to the issues in the case,” United States v. Apodaca,

287 F. Supp. 3d at 39 (quotation omitted), and Mr. Sutton has failed to carry his burden to show

that the requested discovery would be “material to preparing the defense,” FED. R. CRIM. P.

16(a)(1)(E)(i).

2. Discovery Requests That Overlap with the Government’s Existing Discovery
Obligations

Mr. Sutton also requests information and materials that the government is

otherwise already obligated to produce. In Request 10, he asks that the government provide its

Rule 404(b) notice of any “prior bad acts” evidence that the government intends to offer at trial.

See Sutton 4th Mot. at 8-9. And in Requests 11 through 17, Mr. Sutton asks the Court to require

the government to produce exculpatory or impeachment evidence “[p]ursuant to Brady and its

progeny.” Id. at 2.

The Court will deny Request 10 because the government already has an obligation

to “provide reasonable notice” of “prior bad acts” evidence. If the government wishes to use

“[e]vidence of any other crime, wrong, or act” for a permissible purpose under Rule 404(b) of

the Federal Rules of Evidence, it must “provide reasonable notice of any such evidence that the

prosecutor intends to offer at trial, so that the defendant has a fair opportunity to meet it.” FED.

R. EVID. 404(b)(3)(A). Mr. Sutton offers no reason to believe that this requirement, expressly set

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forth in the Federal Rules of Evidence, is insufficient to safeguard his ability to assess and

respond to any “prior bad acts” evidence that the government chooses to rely upon at trial. He

provides no argument as to why this evidence must be disclosed now, as opposed to closer to

trial. See FED. R. EVID. 404 advisory committee’s notes to 2020 amendments (“Advance notice

of Rule 404(b) evidence is important so that the parties and the court have adequate opportunity

to assess the evidence, the purpose for which it is offered, and whether the requirements of Rule

403 have been satisfied--even in cases in which a final determination as to the admissibility of

the evidence must await trial.”). Because the government is already obligated to produce the

Rule 404(b) notice that Mr. Sutton seeks, the Court will deny Request 10. See United States v.

Oseguera Gonzalez, 507 F. Supp. 3d at 170 (citing Pinson v. U.S. Dep’t of Justice, Civil Action

No. 12-1872, 2017 WL 6883924, at *1 (D.D.C. June 26, 2017)).

The Court will similarly deny Requests 11 through 17 because they seek Brady

material to which Mr. Sutton is already entitled. 4 As has been made very clear to the

government in this case, it is obligated to disclose exculpatory material to Mr. Sutton “as soon as

reasonably possible after its existence is known, so as to enable the defense to make effective use

of the disclosed information in the preparation of its case.” LCrR 5.1(a); see Transcript of

September 24, 2021 Arraignment [Dkt. No. 33] at 10:13-23 (warning the government of its

4
The Court will deny Request 11 to the extent Mr. Sutton seeks a list of all law
enforcement officers who may testify at trial. The prosecution has no obligation under either
Brady or Rule 16 of the Federal Rules of Criminal Procedure “to disclose its witness list prior to
trial in a noncapital case.” See United States v. Celis, 608 F.3d 818, 831-32 (D.C. Cir. 2010)
(per curiam); see also 2 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND
PROCEDURE § 258 (4th ed. 2022) (“It is clear that defendant has no right in noncapital cases to
require a list of government witnesses.”). In this case, the Court will, however, order the
disclosure of the identity of each witness a few days or a week before the witness is expected to
testify, as well as the disclosure of any related Giglio material, in order to avoid delay once trial
has begun.

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Brady obligations); see also United States v. Safavian, 233 F.R.D. at 16. Mr. Sutton’s requests

are duplicative of the government’s preexisting obligation to produce exculpatory material and

therefore are unnecessary. See United States v. Oseguera Gonzalez, 507 F. Supp. 3d at 170

(denying as moot defendant’s motion to compel to the extent it “request[ed] the government to

be ordered to review its own files . . . and produce material discoverable under Rule 16 and

Brady”). The government is aware of its Brady obligations and this Court’s expressed views on

that issue. See United States v. Sutton, Crim. No. 21-0598-1, 2022 WL 2383974, at *5-9

(D.D.C. July 1, 2022); see also United States v. Safavian, 233 F.R.D. at 17 (“[T]he government

must always produce any potentially exculpatory or otherwise favorable evidence without regard

to how the withholding of such evidence might be viewed – with the benefit of hindsight – as

affecting the outcome of the trial.”).

B. Mr. Sutton’s Fifth Motion to Compel Discovery

In his fifth motion to compel discovery, Mr. Sutton requests that the government

produce:

1. Identities of all persons involved in any way with the re-
drafting of the New MPD General Orders, including attorneys and
[law enforcement officers].

2. All documents as defined in the discovery rules for civil
procedure relating in any way to the redrafting of the New MPD
General Orders.

3. All MPD training materials for the New MPD General Orders.

4. The identities of all persons responsible for training on the
New MPD General Orders.

5. The identities of all persons involved in any way and/or
notified of the decision to remove public access to the IAD Annual
Vehicular Pursuit Reports from the MPD website.

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 6. All documents as defined in the rules for civil procedure
relating to the removal of public access to the IAD Annual
Vehicular Pursuit Reports from the MPD website.

Sutton 5th Mot. at 1. For the following reasons, the Court will deny Mr. Sutton’s fifth motion to

compel discovery in full.

1. Discovery Requests Relating to MPD’s Recent Revisions of Pertinent General
Orders

In Requests 1 through 4, Mr. Sutton seeks information related to two new MPD

General Orders that recently that came into effect. See Sutton 5th Mot. at 1. The first – General

Order 301.03 – went into effect on December 30, 2021, and supersedes the MPD vehicular

pursuit policy that was in effect on October 23, 2020, when the underlying events in this case

occurred. Compare General Order No. 301.03 (Dec. 30, 2021) [Dkt. No. 152] at 6-15, with

General Order No. 301.03 (Feb. 25, 2003) [Dkt. No. 150] at 20-36. The second – General

Order 901.07 – went into effect on January 1, 2022, and supersedes the MPD use of force policy

that was in effect on October 23, 2020. See General Order No. 901.07 (Jan. 1, 2022) [Dkt.

No. 152] at 16-39. Mr. Sutton seeks documents and materials concerning the drafting of these

revised MPD policies as well as officer training in light of the revisions.

Although his arguments meander, Mr. Sutton essentially argues that documents

and materials regarding “how and why the key MPD General Orders applicable to this case have

been changed” are relevant and therefore discoverable because they go to the “objective

standpoint of the reasonably prudent police officer” from which Mr. Sutton will be judged.

Reply ISO Sutton 5th Mot. at 7-8; see id. at 5 (arguing that his “experts should be afforded an

opportunity to review the documents requested as they reflect upon the objective reasonableness

of the conduct of CST officers in following Karon Hylton-Brown”). As recently noted by this

Court, whether a defendant acted with “malice aforethought” – an element of second degree

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murder under D.C. law – may be established by proving that the defendant grossly deviated from

a reasonable standard of care so as to “lead the finder of fact to determine that the ‘defendant was

aware of a serious risk of death or serious bodily harm.’” United States v. Sutton, 2022 WL

2828995, at *3 (quoting Jennings v. United States, 993 A.2d 1077, 1080 (D.C. 2010)); see also

Comber v. United States, 584 A.2d 26, 39 (D.C. 1990) (en banc) (“[I]n the District of Columbia,

such depraved heart malice exists only where the perpetrator was subjectively aware that his or

her conduct created an extreme risk of death or serious bodily injury, but engaged in that conduct

nonetheless.”). Moreover, “the violation of an MPD General Order ‘is a factor the jury can

consider in determining whether the officer [grossly deviated] from the [reasonable] standard of

care.’” United States v. Sutton, 2022 WL 2828995, at *3 (alterations in original) (quoting

Tillery v. District of Columbia, 227 A.3d 147, 152 n.17 (D.C. 2020)).

Mr. Sutton, however, does not explain how the requested discovery – internal

police documents and training materials that relate to the amendment of MPD General Orders

after Mr. Hylton-Brown’s death – could conceivably shed light on the reasonable standard of

care applicable to Mr. Sutton on the evening of Mr. Hylton-Brown’s death. Although the MPD

General Orders that were in effect on October 23, 2020, and governed how Mr. Sutton and other

police officers were to engage in vehicular pursuits may “illuminate the contours of the

reasonable standard of care that applied to Mr. Sutton,” United States v. Sutton, 2022 WL

2828995, at *3, it is difficult to imagine how the amendments to those MPD General Orders

from more than a year later would elucidate that standard of care. It is therefore even more

difficult to conceive how internal MPD documents relating to the drafting of those amendments

or training materials regarding their implementation would help to better understand the standard

of care that applied to Mr. Sutton when he pursued Mr. Hylton-Brown. Requests 1 through 4

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seek materials that would not help Mr. Sutton to present his defense or help the jury to determine

whether he grossly deviated from a reasonable standard of care, see id., and the Court will deny

these requests in full. 5

2. Discovery Requested Relating to MPD’s Alleged Removal of Internal Affairs
Reports from its Website

In Requests 5 and 6, Mr. Sutton requests documents relating to the alleged

removal of MPD Internal Affairs Division (“IAD”) pursuit investigations from the MPD website.

See Sutton 5th Mot. at 1. This Court recently held that the IAD pursuit investigations themselves

are “material” to preparing Mr. Sutton’s defense and therefore are discoverable because they

“construe and apply the MPD General Orders to a range of pursuits[,] . . . illuminat[ing] the

contours of the reasonable standard of care that applied to Mr. Sutton as he pursued Mr. Hylton-

Brown on October 23, 2020.” United States v. Sutton, 2022 WL 2828995, at *3. Mr. Sutton

now claims that annual compendiums and reports of these IAD pursuit investigations were

previously published “on an internal website accessible to MPD officers,” United States v.

Sutton, 2022 WL 1202741, at *12, but that MPD has now removed public access to them. See

5
In addition, Mr. Sutton argues that the amendments to the MPD General Orders as
well as third-party reports that informed them establish that the superseded MPD General Orders
were ambiguous and did not provide him with fair notice that his conduct may have been
criminal. He therefore suggests that he is immune from prosecution. See Reply ISO Sutton 4th
Mot. at 3-9, 11; Reply ISO Sutton 5th Mot. at 2-4. Relatedly, he suggests that he is entitled to
qualified immunity because his conduct on October 23, 2020, was reasonable as a matter of law.
See Reply ISO Sutton 4th Mot. at 4-5. Setting aside that the Court has rejected such arguments
in relation to Mr. Sutton’s motion to dismiss the indictment pursuant to FED. R. CRIM. P.
12(b)(3)(B)(v), see August 4, 2022 Memorandum Opinion and Order [Dkt. No. 215], Mr. Sutton
simply has not demonstrated why such arguments entitle him to discovery under Rule 16. As
noted above, Rule 16 discovery “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 at 39 (quoting United States v. Rashed, 234 F.3d at 1285). Moreover,
it is unclear how documents and materials regarding the revision and implementation of the
MPD General Orders would have helped to establish Mr. Sutton’s claimed defenses.

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Sutton 5th Mot. at 1.6 He therefore seeks the identities of all persons involved in the alleged

removal of these IAD pursuit investigations as well as all documents related to such alleged

removal. See id.

The Court recently ordered the government “to file an affidavit or declaration,

signed by an official with personal knowledge of IAD’s investigation procedures of vehicular

pursuits, to attest to the fact . . . that no annual compendiums or reports relating to the IAD

pursuit investigations have been prepared for the last five years.” United States v. Sutton, 2022

WL 2828995, at *4 n.2. Setting aside for now the question whether such a representation is

indeed accurate, the Court concludes that Requests 5 and 6 seek information that is not

“material” to the issues in this case. FED. R. CRIM. P. 16(a)(1)(E)(i). Mr. Sutton has made no

attempt to explain how the identities of MPD officials who are allegedly responsible for

removing certain annual compendiums and reports (or a statement about the preparation of such

documents) from a public website would assist in his defense, let alone “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 at 68.

6
In his supplemental brief, Mr. Sutton seems to modify his argument (and the basis
for Requests 5 and 6) by suggesting that his counsel had seen on a public MPD website a
statement that IAD prepared annual reports of pursuit investigations and that such a statement
apparently was removed. See Sutton Suppl. Brief at 6-8.

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 Although the IAD pursuit investigations may help to establish the reasonable

standard of care that was applicable to Mr. Sutton, materials concerning their removal from a

website would not in any way assist Mr. Sutton to prepare his defense or help the jury in its

factfinding. See United States v. Marshall, 132 F.3d at 68. Thus, there is no valid basis to Mr.

Sutton’s discovery requests, and the Court will deny Requests 5 and 6.

For the foregoing reasons, it is hereby

ORDERED that Mr. Sutton’s Fourth Motion to Compel Disclosure of Requested

Discovery [Dkt. No. 146] is DENIED; and it is

FURTHER ORDERED that Mr. Sutton’s Fifth Motion to Compel Disclosure of

Requested Discovery [Dkt. No. 152] is DENIED.
Digitally signed by
SO ORDERED. Paul L. Friedman
Date: 2022.08.05
09:26:36 -04'00'
___________________________
PAUL L. FRIEDMAN
United States District Judge

DATE: August 5, 2022

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