UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Defendants.
)
UNITED STATES OF AMERICA )
)
v. ) Criminal No. 21-0598 (PLF)
)
TERENCE SUTTON )
and )
ANDREW ZABAVSKY, )
)
)
)
MEMORANDUM OPINION AND ORDER
Pending before the Court is defendant Andrew Zabavsky’s Motion for
Reconsideration of the Court’s Order Granting the Government’s Motion in Limine to Exclude
Inadmissible Expert Testimony (“Zabavsky Mot.”) [Dkt. No. 373]. Mr. Zabavsky requests that
the Court reconsider its decision excluding his proffered expert James Dahlquist from testifying
at trial; or in the alternative, permit Mr. Zabavsky to present a replacement expert witness. See
Zabavsky Mot.
The government opposes Mr. Zabavsky’s motion and argues that “Zabavsky
offers no basis within this applicable legal framework for the Court to reconsider its decision that
James Dahlquist is unqualified under Daubert.” Opposition to Defendant’s Motion for
Reconsideration (“Gov’t Opp.”) [Dkt. No. 378] at 2. The government further contends that the
cases Mr. Zabavsky cite do not support “a mid-trial opportunity to notice and call a brand new
expert simply because the expert he originally noticed was deemed unqualified.” Id. at 5. For
the following reasons, the Court will deny Mr. Zabavsky’s motion for reconsideration as to
Mr. Dahlquist, but it will grant Mr. Zabavsky’s request to present a substitute expert witness with
the limitations described below.
I. LEGAL STANDARD
Although the Federal Rules of Criminal Procedure do not explicitly provide for
motions for reconsideration, the Supreme Court has recognized that district courts may consider
such motions in criminal cases. See United States v. Dieter, 429 U.S. 6, 8 (1976) (per curiam);
United States v. Healy, 376 U.S. 75, 80 (1964). When considering motions for reconsideration
in a criminal case, judges in this district “import[] the standards of review applicable in motions
for reconsideration in civil cases.” United States v. Hassanshahi, 145 F. Supp. 3d 75, 80 (D.D.C.
Nov. 19, 2015); see also United States v. Sutton, Crim. No. 21-0598, 2021 WL 5999407, at *1
(D.D.C. Dec. 20, 2021).
In motions related to an interlocutory decision, the court applies an “as justice
requires” standard. United States v. Sunia, 643 F. Supp. 2d 51, 60 (D.D.C. 2009). Corrections
are limited and are not meant to provide parties with a chance to reargue a previously decided
issue. See United States v. Lieu, Crim. No. 17-0050, 2018 WL 5045335 at *2-3 (D.D.C.
Oct. 17, 2018). In evaluating what “justice requires,” the Court considers “whether it ‘patently
misunderstood a party, has made a decision outside the adversarial issues presented to the Court
by the parties, has made an error not of reasoning but of apprehension, or [whether] a controlling
or significant change in the law or facts [has occurred] since the submission of the issue to the
Court.’” United States v. Hassanshahi, 145 F. Supp. 3d at 80 (citing Singh v. George
Washington Univ., 383 F. Supp. 2d 99, 101 (D.D.C. 2005)).
A motion for reconsideration should not be used or seen as an opportunity to
relitigate previously ruled upon issues, including “arguments that could have been, but were not,
raised previously and arguments that the court has already rejected.” United States v.
Booker, 613 F. Supp. 2d 32, 34 (D.D.C. 2009). Motions for reconsideration are subject to the
“sound discretion of the trial court.’” United States v. Haassanshahi, 145 F. Supp 3d at 80
(quoting United States v. Trabelsi, Crim. No. 60-89, 2015 WL 5175882, at *2 (D.D.C.
Sept. 3, 2015)). The moving party bears the burden of demonstrating that reconsideration is
appropriate. See id.
II. DISCUSSION
A. Motion for Reconsideration
The Court excluded Mr. Dahlquist’s testimony in full after determining that
“Mr. Dahlquist’s experience with the Cobb County, Georgia police department [did] not qualify
him as a police procedures expert, much less an expert on [Metropolitan Police Department
(“MPD”)] policies.” United States v. Sutton, Crim. No. 21-0598, 2022 WL 16960338, at *13
(D.D.C. Nov. 16, 2022). The Court explained that “[u]nlike Mr. Drago, [the government’s
expert], who has experience with ‘formulat[ing] law enforcement policy’ and ‘extensive
knowledge of national model policing standards,’ there is no indication that Mr. Dahlquist has
sufficient experience or familiarity with national standards, let alone local standards in
Washington, D.C.” Id. (internal citations omitted).
In support of Mr. Zabavsky’s motion to reconsider, counsel for Mr. Zabavsky said
that Mr. Dahlquist “has been offered as [an] expert on crash investigations and standard police
procedures for conducting crash investigations.” Email from A. Bluestone to the Court and
Counsel (“Bluestone Email”) (Nov. 30, 2022). Mr. Zabavsky argues in his motion to reconsider
that Mr. Dahlquist possesses knowledge of national policing standards because he “has attended
training courses” on relevant topics including “Motorcycle Crash Investigation” in “multiple
states heyond Georgia, including Texas, Florida, and Ohio.” Zabavsky Mot. at 1-2. The Court is
not persuaded. Merely attending such training courses — only some of which appear to be related
to crash investigation procedures — does not qualify Mr. Dahlquist as an expert on national or
MPD standards on crash investigations. See James K. Dahlquist CV [Dkt. No. 373-1] at 2-3.
The Court therefore denies Mr. Zabavksy’s motion to reconsider its ruling excluding
Mr. Dahlquist’s expert testimony at trial.
B. Request for a Substitute Expert
Notwithstanding the Court’s ruling on Mr. Dahlquist, however, the Court in its
discretion will permit the expert testimony of Mr. Zabavsky’s substitute expert, Michael Miller.
Mr. Zabavsky has made clear that he proffers Mr. Miller, his alternate police practices expert, for
a very narrow purpose: to opine on police procedures relating to crash investigations only. See
Bluestone Email. This is quite different from Mr. Zabavsky’s initial expert disclosure for
Mr. Dahlquist, which proffered a wide range of anticipated testimony about police procedures at
large, crash reconstruction, and other topics “beyond the scope of the expertise of either a crash
reconstructionist or a police procedures expert.” United States v. Sutton, 2022 WL 16960338,
at *14. In the Court’s judgment, counsel’s amended proffer has provided a sound basis
warranting Mr. Zabavsky to present a substitute witness. See Bluestone Email.
1. Qualifications
Mr. Miller is qualified as an expert on national police procedures and MPD
policies relating to the conduct of crash investigations. From 1999 to 2016, Mr. Miller worked
in MPD’s Major Crash Investigations Unit (“Major Crash”), including teaching “Basic Crash
Investigation” to police recruits at the MPD Academy from 2014 through 2016. See Bluestone
Email. In addition, Mr. Miller has “served on the Maryland Crash Reconstruction Committee,
Advance Crash Investigation board,” and has lectured on accident investigation and
reconstruction and vehicle pursuit fatalities. Id. Mr. Miller has also “taken a series of course[s]
across the country on accident investigations.” Id. Since 2015, Mr. Miller has worked as an
associate accident investigator, reconstructionist, and forensic video analyst with Comprehensive
Motor Vehicle Services & Consulting, assisting with on-scene crash investigations. See Michael
Miller CV at 1. These professional experiences qualify Mr. Miller as an expert on crash
investigations.
2. Relevance of Testimony
On December 2, 2022, the government orally raised a separate objection to
Mr. Miller’s testimony and argued that Mr. Miller’s proffered opinions are irrelevant to the
substantive issues in this case. The government stated the following:
[T]o the extent that [Mr. Zabavsky] [is] looking to have someone
testify about MPD’s procedures to conduct a [M]ajor [C]rash
investigation, that’s really not relevant to what we are looking at
here.
What we are looking at here is whether these defendants acted to
prevent [M]ajor [C]rash from being notified to initiate an
investigation. How they carried that out really isn’t relevant once
they were called to the scene. And to have an expert opine on
[M]ajor [C]rash’s procedures and investigative methods and steps
that they took once they are at the scene is really a collateral issue
that we don’t need expert testimony on, and it’s not -- it doesn’t
actually speak to the questions the jury is going to have to answer
at the end of the day.
The questions that the jury is going to have to answer are was there
misleading conduct designed to interrupt the initiation of
investigation, not a separate assessment of the quality or
conclusions that that investigation ultimately led to.
Transcript of Jury Trial — Day 27, December 2, 2022 (““Dec. 2 Tr.”) at 156:14-157:6.
The Court disagrees. To start, the Court believes that MPD’s procedures for
conducting Major Crash investigations are relevant to Mr. Zabavsky’s defense because the jury
must assess whether he “engage[d] in misleading conduct toward another person with intent 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.”
Indictment [Dkt. No. 1] at ¥31 (citing 18 U.S.C. § 1512(b)(3)). A Major Crash investigation,
which is MPD’s internal process for investigating traffic collisions, is relevant because the
indictment alleges that “[t]he purpose of the conspiracy was for SUTTON and ZABAVSKY to
hide from MPD officials 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. at § 32.
Furthermore, the government is incorrect that the only question the jury must
determine is whether “there [was] misleading conduct designed to interrupt the initiation of
investigation.” Dec. 2 Tr. at 157:3-4 (emphasis added). The indictment includes allegations
about Mr. Zabavsky’s conduct at the scene of the crash. See, e.g., Indictment at 34-44. These
allegations, if proven at trial, might lead the jury to conclude that Mr. Zabavsky hindered the
internal investigation of the incident even if Major Crash had been timely notified. For example,
the indictment alleges that “ZABAVSKY obtained no witness statements, nor did he direct any
other officer to take statements, despite being approached by at least one individual who asserted
he was an eyewitness,” and “[w]hen ZABAVSKY left the scene, he did not leave any other
police official in charge.” Id. at {§] 39, 43. Mr. Zabavsky is entitled to argue to the jury that the
Major Crash investigation was ultimately conducted properly to defend against the government’s
allegations of his obstructive conduct.
The Court, in the exercise of its discretion, will permit Mr. Miller to testify as an
expert on police procedures relating to crash investigations. The Court further finds that the
government is not prejudiced by the late disclosure of this witness. Cf. United States v.
Cruz, 156 F.3d 22, 30 (Ist Cir. 1998) (“Even when the government has produced a witness list in
advance, when a witness not previously listed is offered, the decision to admit the testimony is
within the discretion of the trial judge.” (cleaned up)). Accordingly, it is hereby
ORDERED that Andrew Zabavsky’s Motion for Reconsideration of the Court’s
Order Granting the Government’s Motion in Limine to Exclude Inadmissible Expert Testimony
[Dkt. No. 373] is GRANTED IN PART and DENIED IN PART.
SO ORDERED.
Can efit
PAUL L. FRIEDMAN
United States District Judge
DATE: /Q| +| XX