United States v. Zabavsky

Opinion

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. ) ____________________________________)

AMENDED ORDER REGARDING TRIAL SCHEDULE AND PROCEDURES

On October 4, 2022, the Court issued an order setting forth the schedule and

procedures for trial. See Order Regarding Trial Schedule and Procedures (“Trial Order”) [Dkt.

No. 292]. Due to changes in the Court’s schedule and its reconsideration of certain procedures,

the Court hereby amends the Trial Order to provide an updated schedule and the procedures that

counsel shall comply with for trial. Past deadlines that were complied with by the parties have

been omitted from this amended order. Accordingly, it is hereby

ORDERED that the Court’s [Dkt. No. 292] Order Regarding Trial Schedule and

Procedures is VACATED; and it is

FURTHER ORDERED that counsel shall comply with each of the following

procedures and requirements:

1. EVIDENTIARY HEARING. The Court will reserve Monday,

October 17, 2022, beginning at 9:30 a.m. in Courtroom 29A, to continue the evidentiary hearing

from October 14, 2022, and to hear argument on any remaining pretrial motions. 2. EXHIBITS AND WITNESS LISTS. A preliminary list of 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. 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. 1 On or before October 18, 2022, the parties shall file all objections to trial exhibits

and exchange preliminary trial witness lists and provide a copy to the Court.

3. 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.

4. VOIR DIRE. All prospective jurors who are not dismissed based on their

questionnaire responses will be directed to appear on Tuesday, October 18 or Wednesday,

October 19, 2022 for individual voir dire. The Court will direct one-fourth of the jury panel to

report to the courthouse on the morning of October 18, 2022; one-fourth to report on the

afternoon of October 18, 2022; one-fourth to report on the morning of October 19, 2022; and

one-fourth to report on the afternoon of October 19, 2022. Voir dire will commence promptly

1 Originals of all exhibits must be provided to the Courtroom Deputy Clerk before the case goes to the jury.

2 at 9:30 a.m. on October 18 and October 19, 2022. The jury panel will be told to wait in

Courtroom 19 while each juror is called individually for questioning by the parties in

Courtroom 29A. 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 Courtroom 29A on the morning of October 20, 2022, when a jury will be selected.

5. PEREMPTORY CHALLENGES. After all potential jurors have returned

to Courtroom 29A on the morning of October 20, 2022, counsel for the parties will exercise

their peremptory challenges. Counsel shall exercise all peremptory challenges by submitting

them in writing to the Courtroom Deputy Clerk. The jurors remaining after this process is

completed will be released until Monday, October 24, 2022, when they will be sworn. All other

members of the jury panel will be excused on October 20, 2022.

6. TRIAL. Counsel should be prepared to deliver their opening statements

on the morning of October 24, 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 20, 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. And 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

3 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. Trial will not be held on

October 27, 2022. On the following dates, trial will proceed according to the modified schedule

listed below:

• October 25, 2022: Trial will conclude no later than 3:00 p.m.

• October 26, 2022: Trial will begin no later than 11:00 a.m. Counsel shall be present in the courtroom at 10:30 a.m. to address preliminary matters.

• October 27, 2022: Trial date vacated.

• November 3, 2022: Trial will conclude no later than 3:00 p.m.

• November 4, 2022: Trial will conclude no later than 1:00 p.m.

7. 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.

8. 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.

4 9. 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

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.

5 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

“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.

10. 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

6 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.

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).

7 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.

11. 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

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.

12. 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

8 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.

13. OBJECTIONS AT TRIAL. Bench conferences are discouraged. 2

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,

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.

14. 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.

15. 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

2 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.

9 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.

16. 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

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.

17. 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.

18. 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.

10 19. 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.

20. 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

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.

11 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 14, 2022