UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
UNITED STATES OF AMERICA )
)
v. ) Criminal No. 21-0598 (PLF)
)
TERENCE SUTTON )
and )
ANDREW ZABAVSKY, )
)
Defendants. )
____________________________________)
ORDER REGARDING TRIAL SCHEDULE AND PROCEDURES
In order to administer the trial of the above-captioned criminal case in a manner
that is fair and just to the parties and is consistent with the goal of completing the trial of this
case in the most efficient manner, it is hereby
ORDERED that counsel shall comply with each of the following procedures and
requirements:
1. FINAL PRETRIAL CONFERENCE. The final pretrial conference will be
held on October 13, 2022 at 1:00 p.m. in Courtroom 29A of the William B. Bryant Annex to
the E. Barrett Prettyman Courthouse at 333 Constitution Avenue N.W., Washington, D.C. 20001.
2. EXHIBITS AND WITNESS LISTS. All exhibits, including all video and
audio tapes to be used at trial, are to be marked in advance of trial and listed in order on the
exhibit form obtained from the Courtroom Deputy Clerk. Counsel shall exchange the final
version of their exhibit lists and exhibits on or before October 7, 2022. A party offering a hard
copy of an exhibit at trial shall have a copy available for the witness. The party presenting that
witness shall move their requested exhibits into evidence at the close of each witness’ testimony.
No exhibits shall be received in evidence in a party’s case-in-chief that were not included on the
exhibit lists, as further limited or agreed upon thereafter, unless there is a showing of
extraordinary good cause. 1 On or before October 14, 2022, the parties shall file all objections to
trial exhibits and exchange trial witness lists and provide a copy to the Court.
3. PROPOSED JURY INSTRUCTIONS. Counsel shall file proposed jury
instructions and a proposed verdict form – jointly to the extent possible – on or before
October 11, 2022. 2 To the extent that they are pattern jury instructions from the current version
of the Redbook, it is sufficient simply to list the numbers of those instructions. Special
instructions shall be submitted verbatim with citations to cases and other authorities to support
each instruction. Proposed instructions shall be filed on ECF. In addition, a set of the
instructions shall be e-mailed to Chambers in Microsoft Word form.
4. BRADY AND GIGLIO. The government is under a continuing and
ongoing obligation to provide favorable or exculpatory information (Brady), whether or not
admissible in evidence, to the defense. The government must disclose information that may be
useful for impeachment or otherwise affect the credibility of any government witness (Giglio) --
including Lewis material – on or before October 11, 2022. See United States v. Celis, 608 F.3d
818, 835-36 (D.C. Cir. 2010). Giglio obligations are also ongoing. Should the government
request it, the Court will enter a protective order precluding counsel from sharing Giglio
information with their clients.
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Originals of all exhibits must be provided to the Courtroom Deputy Clerk before
the case goes to the jury.
2
This amends the Amended Scheduling Order [Dkt. No. 179], which inadvertently
listed October 10, 2022 – a federal holiday – as the deadline for proposed jury instructions and a
proposed verdict form.
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5. EVIDENTIARY HEARING. The Court will convene an evidentiary
hearing on October 14, 2022, beginning at 10:00 a.m. in Courtroom 29A, to hear testimony
related to the parties’ motions in limine regarding Mr. Karon Hylton-Brown’s character, criminal
history, and alleged associations with the Kennedy Street Crew and the Kennedy Drug Corridor.
See Government’s Omnibus Motion in Limine [Dkt. No. 256] at 3-7; Mr. Sutton’s Motion in
Limine to Permit Evidence Regarding Decedent’s Criminal Background, the Kennedy Street
Crew, and Kennedy Street Drug Corridor [Dkt. No. 257]; see also Joint Status Report [Dkt.
No. 291]. The evidentiary hearing will conclude no later than 3:30 p.m. on October 14, 2022.
6. VOIR DIRE. All prospective jurors who are not dismissed based on their
questionnaire responses will be directed to appear on October 17 or October 18, 2022 for
individual voir dire. The Court will direct one-third of the jury panel to report to the Ceremonial
Courtroom (Courtroom 20) on the morning of October 17, 2022; one-third to report on the
afternoon of October 17, 2022; and one-third to report on the morning of October 18, 2022. Voir
dire will commence promptly at 9:30 a.m. on October 17 and October 18, 2022. The jury
panel will be told to wait in the Ceremonial Courtroom while each juror is called individually for
questioning by the Court in an adjunct courtroom, which will be announced at a later date, with
limited pertinent follow-up questioning by counsel. Challenges for cause will be exercised at the
conclusion of each prospective juror’s questioning. All potential jurors remaining after this
process is completed will be asked to return to the adjunct courtroom on the afternoon of
October 18, 2022, when a jury will be selected.
7. PEREMPTORY CHALLENGES. After all potential jurors have returned
to the adjunct courtroom on the afternoon of October 18, 2022, counsel for the parties will
exercise their peremptory challenges. Counsel shall exercise all peremptory challenges by
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submitting them simultaneously in writing to the Courtroom Deputy Clerk. The jurors remaining
after this process is completed will be released until Wednesday, October 19, 2022, when they
will be sworn. All other members of the jury panel will be excused on October 18, 2022.
8. TRIAL. The Court will reserve the morning of Wednesday,
October 19, 2022, beginning at 10:00 a.m. in Courtroom 29A, to hear argument on any
remaining pretrial motions and, if needed, to continue the evidentiary hearing from
October 14, 2022. Counsel should be prepared to deliver their opening statements on the
afternoon of October 19, 2022. Opening statements shall not exceed 60 minutes for the
government and 60 minutes for the defendants, unless otherwise agreed by counsel. Any
exhibits, charts, or summaries to be used in opening statements must be cleared with counsel for
the other side. Any objections to exhibits to be used during openings must be presented to the
Court for resolution on or before October 14, 2022 at 12:00 p.m. After opening statements, the
government must be prepared to call its first witness.
Unless counsel are notified otherwise, the jury portion of the trial will be
conducted each weekday from 10:00 a.m. to 12:30 p.m. and from 1:45 p.m. to 5:00 p.m. in
Courtroom 29A. On October 25 and November 3, 2022, trial will conclude no later than
3:00 p.m. On October 27 and November 4, 2022, trial will conclude no later than 1:00 p.m.
Unless otherwise instructed by the Court, counsel shall be present in the courtroom each morning
promptly at 9:30 a.m. to address preliminary matters. Trial will convene promptly at
10:00 a.m. on each trial day and the jury will not be kept waiting. Counsel shall be available in
the courtroom and seated at their respective counsel tables at least five minutes before Court is
scheduled to begin or resume after a recess.
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9. ELECTRONIC COURTROOM. Representatives of any party who intend
to use electronic equipment during the course of this trial shall promptly meet with John Cramer,
Courtroom Technology Administrator, of the Clerk’s Office (202-354-3019), to arrange for the
necessary equipment. Representatives for all parties shall meet with Mr. Cramer to become fully
conversant with the procedures for use of the equipment in the courtroom.
10. TAPES AND TRANSCRIPTS. The parties shall email to one another
draft transcripts of all video or audio tapes to be used in this case on or before October 11, 2022.
Counsel shall resolve any disputes, alleged inaccuracies in the transcripts, and/or discrepancies
between the transcripts and the tapes. If it proves impossible for counsel to resolve the dispute,
they shall so advise the Court at least three (3) days before the tape is to be offered so that the
Court may resolve the dispute efficiently and avoid any delay to the parties, the jury, and the
Court.
11. GENERAL COURTROOM RULES. The Court expects counsel to
exercise civility at all times towards each other and towards everyone involved in the case or
working with the Court.
A. Unless leave is otherwise given, counsel shall examine witnesses and
make opening statements and closing arguments from the lectern and shall
speak into the microphone.
B. Counsel shall obtain permission from the Court before approaching a
witness.
C. One counsel for the government and one counsel for each defendant shall
be designated as lead counsel for each and every witness, for purposes of
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direct examination, cross-examination, redirect examination, and raising
objections.
D. The Court will strictly apply the rules on rebuttal evidence. See BLACK’S
LAW DICTIONARY (10th ed. 2014) (defining “rebuttal evidence” as
“[e]vidence offered to disprove or contradict the evidence presented by an
opposing party”).
E. Counsel are reminded that the traditional rules regarding opening
statements and closing arguments will be enforced by the Court.
F. When addressing the Court, counsel shall stand. All objections or other
statements by counsel, no matter how brief, shall be made while standing.
G. All statements by counsel should be directed to the Court and not to
opposing counsel.
H. Counsel are reminded that their own opinions regarding facts or issues in a
case are irrelevant and should not be communicated to the jury (e.g., “I
think . . . , we believe . . . .”).
I. Counsel are reminded to secure clearance from the Court before posing
questions or engaging in procedures in the presence of the jury that carry a
risk of undue prejudice, or that by law or customary procedures require
judicial pre-approval.
J. Unless otherwise permitted by the Court, counsel shall refer to all
witnesses over the age of 18, including their clients, as “Mr.” or “Ms.”
With respect to defendants, counsel are free to refer to them either as
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“Officer” or as “Mr.” The use of first names or nicknames is prohibited.
All witnesses are to be addressed in a respectful and polite manner.
12. COVID-19 PROCEDURES. The Court hereby notifies the parties that the
following additional procedures restrictions will govern trial, consistent with the practices
outlined in Appendices 7 and 8 of the Continuity of Operations Plan During the COVID-19
Pandemic. See Continuity of Operations Plan During the COVID-19 Pandemic (July 15, 2020),
https://www.dcd.uscourts.gov/coronavirus-covid-19-response-information-and-announcements;
id., Appendix 7 (updated Oct. 27, 2020); id., Appendix 8 (updated Mar. 2, 2022).
A. All persons who attend trial must wear face masks covering the mouth and
nose throughout the entire proceeding, except as directed by the Court.
The Court may provide participants with a clear protective facial mask.
See Appendix 7 ¶ 4; Appendix 8 ¶ 2(c)(iii). Attendees are reminded that,
pursuant to Standing Order No. 21-45, “[a]ll individuals, regardless of
vaccination status, are required to wear a face mask, which must
completely cover the nose and mouth, at all times while in the public and
non-public areas” of the courthouse. In Re: Reinstatement of Mask
Requirement for All Individuals in Public and Non-Public Areas of
Courthouse, Standing Order No. 21-45 (BAH) (July 30, 2021), at 1-2,
available at: https://www.dcd.uscourts.gov/coronavirus-covid-19-
response-information-and-announcements; see also Mask Requirements in
the Public Areas of the Courthouse and Courtrooms (Apr. 4, 2022),
https://www.dcd.uscourts.gov/coronavirus-covid-19-response-
information-and-announcements.
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B. All participants and observers must remain at or near their assigned places
throughout the proceeding, except as directed by the Court. See Appendix
8 ¶ 2(c)(iv). Attorneys and witnesses may remove their masks while
speaking. If the Court recesses for a break, all participants must return to
their assigned places from before the break.
C. Any individual who has tested positive for COVID-19, is experiencing
symptoms consistent with COVID-19, or learns of exposure to an
individual who has tested positive for COVID-19, should not come to the
courthouse and should contact the Courtroom Deputy Clerk for further
instructions. If during trial any participant experiences symptoms
consistent with COVID-19 or learns of exposure to an individual who has
tested positive for COVID-19, that person should notify the Courtroom
Deputy Clerk immediately. See Appendix 7 ¶ 6; Appendix 8 ¶ 2(c)(i)-(ii).
D. Any testifying witness, who is not fully vaccinated must show a negative
rapid test to counsel calling that witness on the day the testimony is
presented to the jury.
13. DIRECT AND CROSS-EXAMINATION. On direct and cross-
examination of a witness, counsel shall not:
A. Testify by improperly incorporating facts into their questions so as to put
before the jury information that has not been received in evidence;
B. Use an objection as an opportunity to argue or make a speech in the
presence of the jury; or
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C. Show the jury a document or anything else that has not yet been received
in evidence without leave of the Court. If counsel is using electronic
equipment to display documents to the jury and the Court, counsel shall
make sure that the document has been admitted in evidence before it is
shown to the jury.
14. OBJECTIONS AND EVIDENTIARY MATTERS. Any legal matters or
evidentiary issues that arise during the course of the trial and have not been the subject of a
motion in limine or pretrial motion should be discussed among counsel no later than the night
before the witness or exhibit is to be offered. If there is no resolution, the proponent of the
objection or evidence shall fax (202-354-3498) or e-mail to Chambers and to opposing counsel
that evening or, in any case, no later than 7:00 a.m. the next morning, in succinct terms, a
statement of the evidentiary issue or objection and their position, with legal authority. The
opposing party shall fax or e-mail by no later than 8:00 a.m. the contrary position with legal
authority. The Court will discuss and rule during the time for preliminary matters each morning.
In this way, the jury will not be kept waiting while legal issues are discussed and resolved.
15. OBJECTIONS AT TRIAL. Bench conferences are discouraged. 3
Counsel who make objections during trial must state the legal basis for their objections without
elaboration or argument (unless invited) — e.g., “objection, hearsay,” “objection, lack of
foundation.” The Court generally will rule on the objection without additional discussion except
in the most critical areas. For purposes of “protecting the record” and assisting appellate review,
3
Counsel may seek to convene a bench conference if counsel is about to engage in
a line of inquiry on direct or cross-examination that reasonably necessitates pre-clearance, e.g.,
potentially inflammatory areas of interrogation.
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counsel may explain or amplify their objections on the record after the jury has been excused for
a break, for lunch, or for the day.
16. WAIVER OF BENCH CONFERENCES. Defense counsel shall secure a
written waiver from each defendant of his right to be present at bench conferences during trial
and file the same with the Court by 9:00 a.m. on the first morning of trial. Alternatively,
counsel may arrange with the Courtroom Deputy Clerk to permit each defendant to listen to
bench conferences through a headset. The defendants will not be permitted at the bench.
17. RULE ON WITNESSES. All witnesses shall remain outside the
courtroom except while actually testifying. Unless permission for a witness to remain in the
courtroom is expressly sought and granted, the rule on witnesses is always in effect, even during
voir dire and opening statements. Counsel shall instruct witnesses not to discuss their testimony
with others after they leave the stand. Except for a defendant-witness (because of Sixth
Amendment implications), counsel calling a witness to testify and counsel’s agents should have
no further discussions with that witness concerning any aspect of the testimony already given or
anticipated until such time as the witness has completed his or her testimony. As to a defendant-
witness, counsel and their agents are directed to the D.C. Circuit’s opinion in United States v.
McLaughlin, 164 F.3d 1, 4-7 (D.C. Cir. 1998), cert. denied, 526 U.S. 1079 (1999). At all other
times, within the bounds of governing ethics rules and the law, counsel may pursue their
discussions with witnesses during the trial.
18. WITNESSES ON CALL. Once the trial begins, witnesses shall be put on
call at the peril of the calling party. The trial will not be recessed because a witness on call is
unavailable, except in extraordinary circumstances. The Court will endeavor to accommodate
out-of-town and non-party witnesses if counsel alerts the Court. The party calling a witness shall
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arrange for that witness’ presence until cross-examination is completed, including the following
trial day if need be. The failure to have a witness present for cross-examination following direct
examination is grounds to strike the witness’ testimony.
19. PRESENCE OF COUNSEL. Once court is in session, counsel shall not
leave the courtroom without the Court’s express permission. Failure of counsel to be present and
on time may result in sanctions.
20. SUA SPONTE JURY INSTRUCTIONS. Any necessary sua sponte jury
instructions shall be written out by counsel requesting them and shall be given to the Court in a
form in which the Court might read the instructions to the jury. Failure to do so shall be deemed
a waiver of any such request. In the event that the instructions are given, it shall be counsel’s
responsibility to remind the Court of the necessity for inclusion of any sua sponte instructions in
its final charge by 4:00 p.m. on the date prior to the date on which the final charge is to be
given by the Court to the jury.
21. VERBAL OR FACIAL CONTACT WITH THE JURY. Counsel,
defendants, and law enforcement personnel shall not make any verbal comments, facial
expression, laughter, or other contact with the jury which could be interpreted as conveying a
comment one way or the other with respect to any testimony, argument, or event that may occur
during trial. Nor shall any such persons offer gratuitous comments or asides about witnesses’
testimony or opposing counsel.
22. CLOSING ARGUMENTS AND INSTRUCTIONS. The courtroom will
be locked during jury instructions and no one will be permitted to enter or leave. In making
closing arguments, counsel shall be limited by the evidence presented during trial and are
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reminded of the prohibition against appealing to the jurors’ prejudices. Moreover, during closing
argument and throughout the trial, counsel shall not:
A. Comment adversely on the failure of a defendant to testify in his own
behalf;
B. Make statements of personal belief to the jury;
C. Make personal attacks on other counsel in the case;
D. Appeal to the self-interest of the jurors; or
E. Make potentially inflammatory racial, ethnic, political, or religious
comments.
With regard to both opening statements and closing arguments, counsel are
admonished not to make statements or arguments that will engender objections. The Court will
intervene sua sponte and not wait for objections if it observes the failure to adhere to basic legal
principles and standards of civility. Failure to abide by these rules may result in sanctions.
SO ORDERED.
/s/
___________________________
PAUL L. FRIEDMAN
United States District Judge
DATE: October 4, 2022
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