Sutton Dismissal

Case 1:21-cr-00598-PLF Document 204 Filed 07/22/22 Page 1 of 41
UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA :

: FILED UNDER SEAL
v. : Case No. 21-cr-598-PLF-01
:
TERENCE SUTTON and : Hon. Paul L. Friedman
ANDREW ZABAVSKY, :
:
Defendants. :
TERENCE D. SUTTON, JR.’S MOTIONS TO DISMISS THE INDICTMENT FOR

PROSECUTORIAL MISCONDUCT IN THE GRAND JURY AND TO DISCLOSE
THE FULL RECORD OF MATTERS OCCURRING BEFORE THE GRAND JURY
Comes now Defendant Terence D. Sutton, Jr., through counsel HANNON LAW
GROUP, LLP, and respectfully requests that the Court dismiss the Indictment for prosecutorial
misconduct before the grand jury. In support of this motion, counsel present the following points
and authorities.
INTRODUCTION
The litigation in this case establishes that no other federal or state prosecutor has indicted
a law enforcement officer for homicide where the law enforcement officer did not violate the
constitutional rights of the decedent. This issue was first raised by the defense on October 2,
2021, in Ofc. Sutton's Motion to Modify Conditions of Release [Dkt. No. 17] at 8 ("We assert
that the Court should consider whether the United States Attorney has ever charged a law
enforcement officer in federal court with murder, where there is no violation of the
Constitutional rights of the decedent, as is true in this case. We believe this case is
unprecedented in that regard.”) The government has not denied this assertion, and further
research reveals that no law enforcement officer has been prosecuted for homicide by a state
prosecutor without evidence that the officer violated the constitutional rights of the suspect. That
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Jurors’ understanding of a distorted presentation of the meaning of the MPD General Order on
vehicular pursuits.
LEGAL STANDARD
The court may consider motions addressing an error in the grand-jury proceedings. Fed.
Crim. Pro. R. 12(b)(3)(A)(v). To dismiss an indictment due to prosecutorial misconduct,
prejudice to the defendant must be found. Bank of Nova Scotia v. United States, 487 U.S. 250,
263 (1988) (“the prejudicial inquiry must focus on whether any violations had an effect on the
grand jury’s decision to indict.”). Grand jury proceedings enjoy a presumption of regularity.
United States v. Mechanik, 475 U.S. 66, 75 (1986). Dismissal of counts in an indictment is
appropriate where the court finds bad faith or intentional misconduct in the grand jury
proceedings. See United States v. Naegele, 474 F.Supp.2d 9, 12-13 (D.D.C. 2007). Dismissal
requires that the misconduct influenced the grand jury’s decision to indict. United States v.
Akinyoyenu, 199 F.Supp.3d 34, 36 (D.D.C. 2016); see also Kilpatrick v. United States, 594
F.Supp. 1324, 1349 (D. Colo. 1984) (“Mischaracterization of the testimony before the grand jury
and the unidentified use of questionable hearsay information with regard to vital issues intrudes
upon the independent role of the grand jury.”) (citation omitted)), overruled Bank of Nova Scotia
v. United States, 487 U.S. 250, 263 (1988) (overruling lower court on harmless error grounds)).
The burden on defendants alleging prosecutorial misconduct is high. See Akinyoyenu,
199 F.Supp.3d at 36 (“The Court will only consider dismissing an indictment if the defendant
shows that the prosecutor instituted some error or irregularity – more than a mere assertion that
the prosecutor presented ‘inadequate, unreliable or incompetent evidence.’”) (citation omitted);
Naegele, 474 F.Supp.2d at 11 (“[T]he Court has before it a rare example of a criminal defendant
who can actually make a ‘particularized and factually based’ showing that grounds exist to
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support the proposition that irregularities may have occurred in the grand jury proceedings and
may justify the dismissal of one or more counts of the indictment.”).
Yet, the Court is obliged to exercise a supervisory role in ensuring the grand jury’s
purpose is fulfilled. See United States v. Gold, 470 F.Supp. 1336 (N.D.Ill. 1979) (“[I]n any
given case, whether a prosecutor before a grand jury labors under a conflict of interest and
whether his conduct oversteps the bounds of propriety must be determined by a factual
inquiry.”). The grand jury “assur[es] that persons will not be charged with crimes simply
because of the zeal, malice, partiality or other prejudice of the prosecutor, the government or
private persons.” Gold, 470 F.Supp. at 1346 (quoting United States v. DiGrazia, 213 F.Supp.
232 235 (N.D. Ill. 1963)). To serve its purpose, it is necessary that the grand jury be “fair and
unbiased.” See id. at 1345 (citations omitted). The grand jury is meant to provide a fair method
for instituting criminal proceedings, protect citizens against arbitrary and oppressive government
actions, and protect citizens against unfounded criminal prosecutions. See id. at 1345-46
(citations omitted).
Although somewhat rare, courts have “dismissed indictments because of the way in
which the prosecution sought and secured charges from the grand jury.” United States v.
Samango, 607 F.2d 877, 881 (9th Cir. 1979) (“The District Court’s role as an overseer of the
grand jury is limited, and it may not exercise its supervisory power in a way which encroaches
on the prerogatives of the (prosecutor and the grand jury) unless there is a clear basis in fact and
law for doing so.”) (quoting United States v. Chanen, 549 F.2d 1306, 1309 (9th Cir. 1977), cert.
denied, 434 U.S. 825 (1977)). The manner in which prosecutors solicit testimony from witnesses
before the grand jury can be a basis for dismissal of the indictment. See Samango, 607 F.2d at
882 (“The transcript was an impressive repertory of insults and insinuations. It contained much
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testimony by the prosecutor in the form of questions which were usually denied and definitely
conveyed the prosecutor’s belief that [the defendant] was guilty and [grand jury witnesses]
evasive.”). “Asking questions solely to discredit a witness was held to be prosecutorial
misconduct in United States v. DiGrazia, 213 F. Supp. 232 (N.D. Ill. 1963).” Samango, 607
F.2d at 883 n.10. Defendants are not entitled to have exculpatory evidence possessed by the
prosecutor presented to the grand jury. United States v. Red Elk, 955 F. Supp. 1170, 1182 (D.S.
Dakota 1997) (citing Williams, 504 U.S. 36, 51-52 (1992)). Still, a prosecutor “may not
deliberately mislead a grand jury or install false impressions to it” for procuring an indictment.
See id. (citations omitted); see also Samango, 607 F.2d at 883 n.10 (“Like Samango, the witness
in DiGrazia gave no incriminating testimony, but the prosecutor ‘by the form and manner of his
questioning, prejudiced her in the eyes of that panel, thereby inducing the return of the
indictment.’”) (citation omitted).
An evidentiary hearing is proper where the court has a reasonable suspicion of possible
misconduct before a grand jury. See id. at 12-13 (“the proper course is to hold an evidentiary
hearing on the issue, rather than to assume the misconduct and any prejudice to the defendant
therefrom.”). Such an evidentiary hearing must precede the court’s analysis which addresses:
whether any misconduct took place; whether such misconduct was intentional; whether any
misconduct substantially influenced the grand jury’s decision to indict (and as to which counts);
and whether the defendant suffered prejudice. Naegele, 474 F.Supp.2d at 13 (citing Bank of
Nova Scotia, 487 U.S. at 259).
Disclosure of certain grand jury material is appropriate in this context. Fed. Crim. Pro. R.
6(e)(3)(E)(ii) (“The court may authorize disclosure – at a time, in a manner, and subject to any
other conditions that it directs – of a grand-jury matter: … at the request of a defendant who
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shows that a ground may exist to dismiss the indictment because of a matter that occurred before
the grand jury.”). Most courts require the defendant to show a particularized need in order to
warrant disclosure under Rule 6(e)(3)(E)(ii). See United States v. Naegele, 474 F.Supp.2d 9, 10
(D.D.C. 2007) (collecting cases). The Court can review grand jury information in camera, as a
preliminary step. See id. at 12.
FACTUAL EVIDENCE OF GRAND JURY ABUSE
The following contains detailed accounts of prejudicial testimony presented to the Grand
Jury, as well as exculpatory evidence known to the prosecutors which should have been
presented to the Grand Jury to avoid the distortion caused by prosecutors.
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The government has never stated another reason they believe Ofc. Sutton
wanted to make contact with Mr. Hylton-Brown, other than for making a traffic stop.
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Indeed, it has long been the law of the
District of Columbia that it is the duty of the Mayor through her Chief of Police “at all times of
the day and night within the boundaries of said Police District: (1) To preserve the public peace;
(2) To prevent crime and arrest offenders” . . . . D.C. Code § 5-101.03. Moreover, the current
iteration of the D.C. Code requires the creation of Patrol Service Areas (PSAs) in every District.
The D.C. Code specifically directs that: “The deployment of sworn officers to the PSAs shall be
based on the following considerations: (1) The number of Part 1 offenses; (2) Drug activities; (3)
The number of arrests; (4) The need for traffic enforcement; and (5) The number of calls for
service.” D.C. Code § 5-101.04 (emphasis supplied).
Upon the arrival of the CST members at the Fourth District station after the collision on
Kennedy Street,
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MPD General Order 301.03:
The MPD General Order on Vehicular Pursuits in effect at the time of this incident is the
fulcrum of the Indictment, allegedly supplying the mens rea to justify Murder in the Second
Degree. However, the application of this General Order to this case is confusing and now an
abandoned theory of the prosecution. See Ofc. Sutton’s Reply in Support of Motion for
Reconsideration [Dkt. 184] at 2-3.
The General Order on its face makes no sense, as evidenced by the fact that it was
amended by MPD on December 30, 2021. Section III.2. defines a pursuit as follows:
Vehicular Pursuit – an attempt by a member of this Department to apprehend a

fleeing felon while in an authorized emergency vehicle with all emergency
warning devices activated.
(MPD General Order 301.13, Exhibit H). Rule IV.F. of the General Order, upon which the
Indictment relies, states: “Members are prohibited from pursuing a vehicle for the purpose of
affecting a stop for a traffic violation.” Yet there is no guidance on what it means to be
“pursuing a vehicle”: must the officer be utilizing his lights and siren? Does the District of
Columbia emergency chase privilege contained in DCMR § 18-2002.4 trump the MPD General
Order, thereby permitting an officer to chase a moped to effectuate a traffic stop or a Terry stop?
Does the General Order prohibit Ofc. Sutton, as he did in this case, from following Hylton-
Brown when Hylton-Brown refused to stop in violation of D.C. Code § 50–2201.05b? Most
importantly, what are the implications of MPD General Order 301.03 when the Constitution
permits law enforcement officers to pursue a fleeing misdemeanant in circumstances far more
dangerous than alleged in this case? See Ofc. Sutton’s Motion to Dismiss the Indictment
Pursuant to Fed. R. Crim. P. 12(b)(3)(B)(v), filed today under seal, at Section B. Unlike the
government’s contention that MPD officers are trained that a violation of this General Order
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might lead to criminal prosecution, the preamble for the MPD Training Lecture on Vehicular
Pursuits states: “The instructor must establish that general orders are a helpful device for a
police officer. There must be a clear understanding of that general orders area guidance that is not
designed to harm or "Jam the officer Up".” (Exhibit I).
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United States v. Morgan, 581 F.2d 933, 937 n. 10 (D.C.Cir.1978) (“We note
that the Federal Rules clearly contemplate that the federal government is a party-opponent of the
defendant in criminal cases, and specifically provide that in certain circumstances statements
made by government agents are admissible against the government as substantive evidence.”)
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We submit this scheme that the draft Traffic Crash Report is a cover up is entirely in the
minds of the prosecutors,
Exculpatory Evidence Not Presented to the Grand Jury:
The following evidence exculpatory to Ofc. Sutton was not presented to the Grand Jury,
and its absence demonstrates the malevolent intent of the prosecutors:
1. At the time of the incident, despite being only 20-years of age, Hylton-Brown had
six pending criminal cases in the District of Columbia on which he was on release, and multiple
charges in Montgomery County. (Criminal Records Search for D.C., Exhibit T; FBI Criminal
Records Search for Montgomery Count, Exhibit U; Montgomery Count Domestic Violence
Case, Exhibit V). This evidence would have demonstrated that Hylton-Brown had a strong
motive to flee the police, fearing he would be found in violation of release conditions in his
pending cases.
2. When Hylton-Brown arrived at the hospital, he was wearing an ankle tracking
monitor ordered by the court in a case pending in Montgomery County Circuit Court. (Medical
Examiner Pages, Exhibit W). We are waiting to receive records which would demonstrate
whether Hylton-Brown was in violation of his conditions of release in that case.
3. At the hospital, Hylton-Brown was found to have $3,126 dollars in small
denominations in his pocket. (Medical Examiner Pages, Exhibit X). We think not even the
Grand Jurors would misunderstand the meaning of this evidence, which Hylton-Brown may well
have forfeited if stopped by police.
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4. At the hospital and at autopsy, Hylton-Brown had a level of .08 mg/l of
oxycodone consistent with use and likely to have had an effect on his behavior. Femoral blood
at autopsy and at the hospital contained major metabolites of THC, which is evidence of serious
chronic use of marijuana. Also found was the sedative benzo diazepam. (Medical Examiner
Pages, Exhibit Y).
5. Lt. Zabavsky directed the CST team to stop Hylton-Brown and conduct a Terry
stop to determine whether he was armed. This action is mandated by MPD General Order OPS
304.10, Field Contacts, Stops, and Protective Pat Downs, (July 9, 2019) the existence and
content of which was never presented to the Grand Jury. (Exhibit R). Nor were the Grand Jurors
advised that this General Order authorizes use of force if necessary and reasonable. (Id. at 6).
6. No witness was presented as an expert to discuss the standard of care for police
engagement in high-crime areas of the city or to explain as background the norms of
constitutional policing,
No expert confirmed that Ofc. Sutton was obligated to follow the
directives of his supervisor, Lt. Zabavsky, which included the following: (1) to “go see” whether
Hylton-Brown was armed, after which Lt. Zabavsky was the first vehicle to follow Hylton-
Brown with lights and siren; (2) to prepare the Traffic Crash Report; (3) to return with him to the
Fourth District where they reported to the Watch Commander and started the report; and, (4) to
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cease drafting the report before the nature of Hylton-Brown’s injuries were known. Such a
witness would have been an accurate reporter on “protocol” about
7. No one explained to the Grand Jury that officers are permitted to follow Hylton-
Brown as they did under the emergency chase privilege codified in DCMR § 18-2002.4.
8. The autopsy report which contained a description of the visible injuries suffered
by Hylton-Brown was not presented to the Grand Jury. The autopsy report described the visible
injuries as “abrasions”, exactly as Ofc. Sutton had described them in the draft Traffic Crash
Report. (Medical Examiner Page, Exhibit Z).
9. No one confirmed to the Grand Jury that the draft Traffic Accident Report was
never completed or submitted by Ofc. Sutton for approval by his chain of command; nor was
there any testimony of how this process would have occurred.
10. After the October death of Hylton-Brown, Fourth District officers withdrew from
the Kennedy Street area, resulting in multiple drug and gang-related shootings. On November
16, 2020, the MPD Intelligence Division issued an Officer Safety Bulletin reporting an
anonymous call to the Fourth District. The Bulletin reports that the caller said “members of the
Fourth District were not doing anything to prevent members of the Kennedy Street Crew (KDY)
from being killed. The caller then threatened to respond to the Fourth District to kill MPD
officers and destroy MPD property.”
CONCLUSION
The Court’s review of the behavior of the prosecutors in the Grand Jury should begin
with the fact that no other case such as this has been indicted in either Federal or State court. To
say that this is a marginal case from the beginning is reinforced by our argument in the Motion to
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Dismiss the Indictment Pursuant to Fed. R. Crim. P. 12(b)(3)(B)(v) also filed today. The
conduct was intentional and blessed by the Department of Justice, as the Court has a right to
assume that this case of “national interest” has enjoyed supervision at the highest levels of the
United States Attorney’s Office and the Department of Justice.
This case should have been presented to the Grand Jury on the very fairest of playing
fields. It was not.
There is no evidence that Ofc. Sutton caused the death of Hylton-Brown. None. What
instructions were the Grand Jurors given on causation? If they were properly instructed, the
would have returned a No Bill.
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REQUEST FOR EVIDENTIARY HEARING
Pursuant to United States v. Naegele, 474 F.Supp.2d 9 (D.D.C. 2007), Counsel for Ofc.
Sutton request that the Court hold an evidentiary hearing upon production of the Grand Jury
minutes.
WHEREFORE, Officer Sutton respectfully requests that the Court order the government
to produce the full minutes of the Grand Jury and dismiss the Indictment for prosecutorial
misconduct.
Dated: June 29, 2022 Respectfully submitted,
HANNON LAW GROUP, LLP
___s/J. Michael Hannon____

J. Michael Hannon, #352526
Rachel E. Amster, #1618887
Harrison E. Richards, #1723607
333 8th Street, NE
Washington, DC 20002
Tel: (202) 232-1907
Fax: (202) 232-3704
[email protected]
[email protected]
[email protected]
Attorneys for Defendant Terence D. Sutton, Jr.
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Case 1:21-cr-00598-PLF Document 204 Filed 07/22/22 Page 1 of 41

UNITED STATES DISTRICT COURT

UNITED STATES OF AMERICA :

TERENCE D. SUTTON, JR.’S MOTIONS TO DISMISS THE INDICTMENT FOR

Crim. Pro. R. 12(b)(3)(A)(v). To dismiss an indictment due to prosecutorial misconduct,

The burden on defendants alleging prosecutorial misconduct is high. See Akinyoyenu,

the prosecutor presented ‘inadequate, unreliable or incompetent evidence.’”) (citation omitted);

may justify the dismissal of one or more counts of the indictment.”).

evasive.”). “Asking questions solely to discredit a witness was held to be prosecutorial

indictment.’”) (citation omitted).

Nova Scotia, 487 U.S. at 259).

preliminary step. See id. at 12.

FACTUAL EVIDENCE OF GRAND JURY ABUSE

presented to the Grand Jury to avoid the distortion caused by prosecutors.

Indeed, it has long been the law of the

service.” D.C. Code § 5-101.04 (emphasis supplied).

MPD General Order 301.03:

Reconsideration [Dkt. 184] at 2-3.

Vehicular Pursuit – an attempt by a member of this Department to apprehend a

designed to harm or "Jam the officer Up".” (Exhibit I).

minds of the prosecutors,

Exculpatory Evidence Not Presented to the Grand Jury:

and its absence demonstrates the malevolent intent of the prosecutors:

2. When Hylton-Brown arrived at the hospital, he was wearing an ankle tracking

whether Hylton-Brown was in violation of his conditions of release in that case.

3. At the hospital, Hylton-Brown was found to have $3,126 dollars in small

have forfeited if stopped by police.

4. At the hospital and at autopsy, Hylton-Brown had a level of .08 mg/l of

Pages, Exhibit Y).

engagement in high-crime areas of the city or to explain as background the norms of

No expert confirmed that Ofc. Sutton was obligated to follow the

witness would have been an accurate reporter on “protocol” about

Report. (Medical Examiner Page, Exhibit Z).

there any testimony of how this process would have occurred.

officers and destroy MPD property.”

United States Attorney’s Office and the Department of Justice.

fields. It was not.

would have returned a No Bill.

REQUEST FOR EVIDENTIARY HEARING

Dated: June 29, 2022 Respectfully submitted,

HANNON LAW GROUP, LLP

___s/J. Michael Hannon____

Attorneys for Defendant Terence D. Sutton, Jr.

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_s/J. Michael Hannon__