Case 1:21-cr-00598-PLF Document 202 Filed 07/21/22 Page 1 of 38

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA , §

§
v. § FILED UNDER SEAL
TERRANCE SUTTON and §
ANDREW ZABAVSKY, §
Defendant. §
§ Case No. 21-cr-598-PLF
§
Defendant Zabavsky’s Motion to Dismiss the Indictment Pursuant to
Rule 12 of the Federal Rules of Criminal Procedure

Comes now, ANDREW ZABAVSKY, co-defendant in above captioned matter, by

and through counsel, Christopher A. Zampogna, of Zampogna, P.C., to move this

court, pursuant to Federal Rule of Criminal Procedure 12(b)(3)(c), to dismiss the

indictment improperly reported out by the Prosecution. The charging document

must be dismissed because it fails to present a sufficient indictment as it lacks

specificity, fails to state an offense, selectively prosecutes Officer Zabavsky, and had

an error in the grand-jury proceeding.

It is respectfully requested that the Court grant this Motion to Dismiss.

Dated: June 29, 2022 Respectfully Submitted,

/s/ Christopher Zampogna

Christopher A. Zampogna
1776 K ST NW, Ste 700
Washington, DC 20006
(202)223-6635
caz@zampognalaw.com
Bar #: 449851
 Case 1:21-cr-00598-PLF Document 202 Filed 07/21/22 Page 2 of 38

TABLE OF CONTENTS

AUTHORITIES CITED ______________________________________________ 2

Memorandum of Points and Authorities in Support of Defendant
Zabavsky’s Motion to Dismiss the Indictment _______________________ 5
Introduction ______________________________________________________ 5
Procedural History and Background______________________________ 6
Standard of Review _______________________________________________ 8
Argument ________________________________________________________ 10
I. Selective and Vindictive Prosecution ________________________ 10
II. Lack of Specificity __________________________________________ 14
III. Failure to State an Offense _________________________________ 17
A. Most of the Overt Acts in the Indictment Fail to Address the
Charges ______________________________________________________ 18
B. The Indictment Does Not State that Lt. Zabavsky Knew that
a Referral for Federal Prosecution was Reasonably Likely __ 20
C. Federal Nexus Test ________________________________________ 22
IV. Conspiracy to Obstruct Justice Cannot Stand on Its Own __ 24
V. The Indictment Should be Dismissed Due to Improper or an
Error in Grand Jury Proceedings Pursuant to Rule 12(a)(v)
Namely, Contradictory Evidence of Indictment Not Provided to
Grand Jury. ____________________________________________________ 30
VI. Charge 2: Conspiracy Must be Dismissed because the Grand
Jury did not have exculpatory evidence presented to it by the
prosecution ____________________________________________________ 33
CONCLUSION ___________________________________________________ 35
CERTIFICATE OF SERVICE _______________________________________ 36
ORDER ____________________________________________________________ 37

1
 Case 1:21-cr-00598-PLF Document 202 Filed 07/21/22 Page 3 of 38

AUTHORITIES CITED

Cases

Allen v. United States, 197 A.2d 852 (D.C. 1964). ______________________________________ 10

*Attorney General v. Irish People, 684 F.2d 928 (D.C. Cir. 1982) (per curiam). ________ 12, 14

Boyce Motor Lines v. United States, 342 U.S. 337 (1952) ________________________________ 10

*Fowler v. United States, 563 U.S. 668, 676 (2011). _____________________________ 21, 22, 23

Hamling v. United States, 418 U.S. 117 (1975). ___________________________________ 16, 29

Ingram v. United States, 360 U.S. 672, 79 S.Ct. 1314, 3 L.Ed.2d 1503 (1959). _____________ 27

Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962) _________________________ 12

Russell v. United States, 369 U.S. 749 (1962). _____________________________________ 16, 21

Sutton v United States, 157 F.2d 661 (5th Cir. 1946). __________________________________ 10

*United States v. Gatling, 96 F.3d 1511, 321 U.S.App. D.C. 63 (D.C. Cir. 1996). __________ 27

United States v Sampson, 371 U.S. 75 (1962). _________________________________________ 10

United States v. Applewhaite, 195 F.3d 679 (3d Cir. 1999).______________________________ 24

United States v. Berrigan, 482 F.2d 171 (3d Cir. 1973). _________________________________ 14

United States v. Berrios, 501 F.2d 1207 (2d Cir. 1974). _____________________________ 12, 14

United States v. Bilzerian, 926 F.2d 1285 (2d Cir. 1991). _______________________________ 25

United States v. Bowdowin, 770 F.Supp.2d 142, (D.D.C. 2011) ________________________ 9, 10

United States v. Caruso, 934 F3d 1002 (9th Cir. 2019). _________________________________ 33

*United States v. Childress, 58 F.3d 693, 313 U.S. Appl.D.C. 133 (D.C.Cir. 1995). _________ 11

United States v. Cruishank, 92 US 542 (1875) _________________________________________ 11

*United States v. Diggs, 198 US APP DC 255, 613 F2d 988, 1003 (1979) cert denied 446 US
982, 100 S Ct. 2961 , 64 L Ed. 2d 838 (1980) _________________________________ 12, 13, 14

United States v. Falk, 479 F.2d 616 (7th Cir. 1973) (en banc) ___________________________ 14

*United States v. Fulcher, 626 F.2d 985, 200 U.S.App. D.C. 121 (D.C.Cir. 1980). __________ 11

United States v. Huff, 512 F.2d 66 (5th Cir. 1975). ______________________________________ 11

United States v. Johnson, 577 F.2d 1304 (5th Cir. 1978). ________________________________ 14

2
 Case 1:21-cr-00598-PLF Document 202 Filed 07/21/22 Page 4 of 38

United States v. Mangieri, 694 F.2d 1270 (D.C. Cir. 1982). ______________________________ 12

United States v. Minarik, 875 F.2d 1186 (6th Cir. 1989). ________________________________ 28

United States v. Mohney, 949 F.2d 899 (6th Cir. 1992) __________________________________ 26

*United States v. Smith, 729 F.Supp. 1380 (D.D.C. 1990). ______________________________ 33

*United States v. Veal, 153 F.3d 1233, (11th Cir. 1998). _________________________ 15, 18, 23

United States v. Wilson, 639 F.2d 500 (9th Cir. 1981). __________________________________ 12

United States. v. London, 550 F2d 206 (5th Cir 1977). __________________________________ 11

Statutes

18 U.S.C. § 1512(b)(3) ____________________________________________ 8, 16, 18, 19, 22, 23, 26

18 U.S.C. § 1515(a)(3). _____________________________________________ 15, 17, 19, 20, 29, 34

18 U.S.C. § 2262 ___________________________________________________________________ 32

18 U.S.C. § 371_________________________________________________________ 8, 19, 25, 26, 28

D.C. Code § 9-907 (1981). ___________________________________________________________ 13

Other Authorities

Department of Justice, Justice Manual, 9-11.00 – Grand Jury (2020). ___________________ 32

33

13, 33, 34

______________________________________________________________________ 35

. ____________________________________________________________________ 33

_____ 34

Rules

FED. R. CRIM. P. 12(b)(1) ____________________________________________________________ 9

FED. R. CRIM. P. 12(b)(3)(A) _________________________________________________________ 9

FED. R. CRIM. P. 12(b)(3)(B) _________________________________________________________ 9

Constitutional Provisions

U.S. CONST. amend. VI. ____________________________________________________________ 10

3
 Case 1:21-cr-00598-PLF Document 202 Filed 07/21/22 Page 5 of 38

U.S. CONST. amend. X _____________________________________________________________ 13

U.S. CONST. amend. V _____________________________________________________________ 10

4
 Case 1:21-cr-00598-PLF Document 202 Filed 07/21/22 Page 6 of 38

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA, §

§
v. §
TERRANCE SUTTON and §
ANDREW ZABAVSKY, §
Defendant. §
§ Case No. 21-cr-598-PLF
§

Memorandum of Points and Authorities in Support of Defendant

Zabavsky’s Motion to Dismiss the Indictment

Introduction

Comes now, ANDREW ZABAVSKY, co-defendant in above captioned

matter, by and through counsel, Christopher A. Zampogna, of Zampogna,

P.C., to move this court, pursuant to Federal Rule of Criminal Procedure

12(b)(3)(c), to dismiss the indictment improperly reported out by the

Prosecution. The charging document must be dismissed because it fails to

present a sufficient indictment as it lacks specificity, fails to state an offense,

selectively prosecutes Officer Zabavsky, and had an error in the grand-jury

proceeding.

After a review of the indictment the court shall dismiss charges in

count two and three of Conspiracy (18 U.S.C. Section 371) and Obstruction of

Justice (18 U.S.C. Sections 1512(b)(3), 2).

5
 Case 1:21-cr-00598-PLF Document 202 Filed 07/21/22 Page 7 of 38

Procedural History and Background

On September 23, 2021, the Government improperly indicted Andrew

Zabavsky with counts 2 and 3, conspiracy and obstruction of justice. The case

stems from a police encounter with a known member of the Kennedy Street

Gang in DC (hereinafter KDY gang). This individual fled from police,

specifically co-defendant’s police vehicle, committing misdemeanor and

felonies while driving his motor-scooter. Then he drove out into a street and

was struck by a pedestrian operated vehicle. Officers immediately contacted

an ambulance and other police officers conducted life saving medical

procedures to the KDY member at the scene. The crash unit was called in

after a review of the body camera footage at the station. The entire event had

been recorded by multiple police body cameras. Despite the complete

transparency of the event to all involved, and possible initial misjudgment of

the seriousness of the injury to the gang member, the indictment was induced

after to the grand jury,

and leaving out any evidence contradicting the governments

tortured theory.

Obstruction of justice provides:

1512 Tampering with a witness, victim or an informant:

(b) whoever knowingly uses intimidation, threatens, or corruptly
persuades another person, or attempts to do so, or engages in
misleading conduct toward another person, with intent to -
(3) hinder, delay, or prevent the communication to a law
enforcement officer or judge of the United States of information
relating to the commission or possible commission of a Federal

6
 Case 1:21-cr-00598-PLF Document 202 Filed 07/21/22 Page 8 of 38

Offense or a violation of conditions of probation supervises

release, parole or release pending judicial proceedings:

Shall be fined under this title or imprisoned not more than 20

years, or both.

18 U.S.C. § 1512(b)(3).

The government alleges that paragraphs 1 through 18, 20 through 28,

and 34 through 48 support this offense (see attached indictment).

Further, it claims Zabavsky and Sutton conspired to obstruct justice

allegedly violating section 18 USC Section 371 which reads :

If two or more persons conspire either to commit any offense

against the United States, or defraud the United States, or any
agency thereof in any manner or for any purpose, and one or more
such persons do any act to effect the object of the conspiracy, each
shall be fined under this title or imprisoned not more than five
years, or both.

18 U.S.C. § 371.

Despite the entire incident being videoed from several angles, the

Government contends Zabavsky conspired to hide an alleged “pool of blood”

as described multiple times by the Government in the indictment,

purposefully omitting and misleading the government officials of key

evidence of other liquids near the body of the injured gang member. And,

despite the multiple videos of the incident, the fact that the BWC footage was

turned off more than 21 minutes after the one car accident by Zabavsky and

Sutton, claims this is the overt act of a conspiracy after accident, while

providing no statement in the indictment of the alleged conspiratorial

discussion.

7
 Case 1:21-cr-00598-PLF Document 202 Filed 07/21/22 Page 9 of 38

After presenting only its theory of the case to the Grand Jury, the

prosecution induced an indictment that issues on September 23, 2021.

Andrew Zabavsky was released a few days later, albeit with restrictions and

wearing an ankle tracking device.

Since that arraignment, multiple motions for discovery, and request for

bill of particulars were filed. The court did not grant Zabavsky’s request for

a bill of particulars of the indictment on April 21, 2022.

Standard of Review

A party may move the Court to dismiss charges if the basis for the

motion is reasonably available and the motion can be determined without a

trial on the merits. FED. R. CRIM. P. 12(b)(1). Basis for a motion alleging a

defect in instituting the prosecution include (iv) selective or vindictive

prosecution and (v) an error in the grand-jury proceeding or preliminary

hearing. See FED. R. CRIM. P. 12(b)(3)(A)(iv)-(A)(v). Basis for a motion

alleging a defect in the indictment or information include (iii) lack of

specificity and (v) failure to state an offense. FED. R. CRIM. P.

12(b)(3)(B)(iii), (B)(v).

When determining a motion to dismiss an indictment, but Court must

view the indictment as a whole and the allegations must be accepted as true.

United States v. Bowdowin, 770 F.Supp.2d 142, 146 (D.D.C. 2011) (citing

8
 Case 1:21-cr-00598-PLF Document 202 Filed 07/21/22 Page 10 of 38

Boyce Motor Lines v. United States, 342 U.S. 337, 343 n. 16 (1952). The

question becomes “whether the allegations, if proven, would be sufficient to

permit a jury to find that the crimes charged were committed.” See

Bowdowin, 770 F.Supp.2d at 146 (citing United States v Sampson, 371 U.S.

75 (1962)

Rule 12(b)(3) describes the challenges that may be made based on a

defect in the indictment or information, including, lack of specificity and

failure to state an offense. Further, Rule 7, provides that indictments must

“be a plain, concise, and definite written statement of the essential facts

constituting the offense charged. FED.R. CRIM. 7(c)(1). The United States

Constitution likewise enshrines the requirements of the indictment in the

Fifth and Sixth Amendments, no person shall be held to answer for an

“infamous crime, unless on a presentment or indictment of a Grand Jury”

while the Sixth Amendment guarantees a person the right “to be informed of

the nature and cause of the accusation.” U.S. CONST. amends. V, VI. Here,

Lt. Zabavsky shall be so fully and clearly informed of the charge against him

to “prepare for a defense and not be taken by surprise at trial, but all so the

information shall be so definite and certain that he may be protected by a

plea of former jeopardy against another prosecution for the same offense.“

Sutton v United States, 157 F.2d 661, 663, (5th 1946); Allen v. United States,

197 A.2d 852 (D.C. 1964).

9
 Case 1:21-cr-00598-PLF Document 202 Filed 07/21/22 Page 11 of 38

Rule 12(b)(3) motions address both sufficiency and failure to state a

claim; and the indictment must set “forth the elements of offense charged and

sufficiently apprise defendants of the charges.” See United States v. London

550 F2d 206, 211 (5th Cir. 1977); United States v. Cruishank 92 US 542, 557-

59 (1875) (“It is an elementary principle of criminal pleading that… it is not

sufficient that the indictment shall charge the offense in the same generic

terms as I the definition, but it must state the species – it must descent to

particulars”); United States v. Childress, 58 F.3d 693, 313 U.S. Appl.D.C. 133

(D.C. Cir. 1995). If an omitted detail goes to specifying the crime then the

indictment is insufficient, each count of an indictment must be regarded as if

it were a separate indictment and must stand on its own content without

dependence for its validity on the allegation of any other count not expressly

incorporated. See United States v. Fulcher, 626 F.2d 985, 200 U.S.App.D.C.

121 (D.C. Cir. 1980); see also United States v. Huff 512 F2d 66, 69 (5th Cir.

1975).

Argument

I. Selective and Vindictive Prosecution

The Government selectively prosecuted Zabavsky for criminal conduct

due to improper motivation to prevent further discord in the district based

upon his race and occupation (see United States v. Diggs 198 US APP DC 255,

613 F2d 988, 1003 (1979) cert denied 446 US 982, 100 S Ct. 2961 , 64 L Ed.

10
 Case 1:21-cr-00598-PLF Document 202 Filed 07/21/22 Page 12 of 38

2d 838 (1980)) and designed to prevent or paralyze his exercise of

constitutional rights (see Irish People , 684 F2d 932, n11(quoting United

States v. Berrios, 501 F.2d 1207, 1211 (2d Cir. 1974)).

Zabavsky asserts that his motion to dismiss the indictment should be

granted on the ground of selective prosecution. He prevails on this defense of

selective prosecution because he was both singled out for prosecution among

others similarly situated and that the decision to prosecute was improperly

motivated. Attorney General v. Irish People,684 F.2d 928, 932 (D.C. Cir.

1982) (per curiam); United States v. Wilson, 639 F.2d 500, 503 (9th Cir. 1981);

Berrios, 501 F.2d at 1211. Zabavsky meets this rigorous test; “the conscious

exercise of some selectivity in enforcement is not in itself a federal

constitutional violation.” Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 505,

7 L.Ed.2d 446 (1962). He demonstrated improper motivation by establishing

“that the selection was deliberately based upon an unjustifiable standard

such as race, religion, or other arbitrary classification,” id.; United States v.

Diggs,198 U.S.App.D.C. 255, 613 F.2d 988, 1003 (1979), cert. denied, 446 U.S.

982, 100 S.Ct. 2961, 64 L.Ed.2d 838 (1980), or was designed to prevent or

paralyze his exercise of constitutional rights, Irish People, 684 F.2d at 932 n.

11 (quoting Berrios, 501 F.2d at 1211); Wilson, 639 F.2d at 503-04. United

States v. Mangieri, 694 F.2d 1270, 1273 (D.C. Cir. 1982)

Zabavsky has been singled out due to his race and for executing

constitutionally protected activity of being a police officer and for these

11
 Case 1:21-cr-00598-PLF Document 202 Filed 07/21/22 Page 13 of 38

reasons the indictment should be dismissed. See U.S. V. Diggs, 198 US App

DC 255, 613 F.2d 988, 1003 (1979). While the court has earlier found that

information should not be provided regarding similar proceedings, a review

has indicated no other charges have been brought related to a case in this

context, specifically, a murder and subsequent claim of obstruction and

conspiracy in a pursuit of a scooter by a law enforcement officer. This is the

first case of its kind, and prosecution against Zabavsky specifically limits the

rights of the people to have protection against violence and crime. Further,

, there is a claim that Zabavsky

purposefully mislead his superiors by saying the same statement.

In addition, Zabavsky was executing a constitutionally protected

activity, namely, investigating an accident. He came to certain initial

conclusions based on evidence presented to him at the scene, which were

amended after being provided updated information about the physical status

of the accident victim, Hylton Brown. This investigation and subsequent

indictment prevented him from finalizing his constitutionally protected

activity of policing (see U.S. Const. 10 Amendment; D.C. Code § 9-907 (1981).

Because the findings of the district court demonstrate a showing of

selective prosecution, reversal is proper whether or not the showing which a

12
 Case 1:21-cr-00598-PLF Document 202 Filed 07/21/22 Page 14 of 38

defendant must make to obtain discovery differs from the showing it must

make at trial to establish a prima facie case of selective prosecution. See

United States v. Diggs, 613 F.2d 988, 1003 n.87 (D.C.Cir.1979), cert. Denied,

446 U.S. 982, 100 S.Ct. 2961, 64 L.Ed.2d 838 (1980). Zabavsky and his co-

defendant are a case of first impression with no similar facts confronting two

police officers with a federal felony charged against them. Because of this,

their race, and their protected activity, they should be entitled to have the

indictment dismissed because the court has not decided to provide evidence

requested. See Berrios, 501 F.2d at 1211 (“ ‘colorable basis’ “); United States v.

Berrigan, 482 F.2d 171, 177 (3d Cir. 1973) (“colorable basis”); United States v.

Falk, 479 F.2d 616, 620-21 (7th Cir. 1973) (en banc) (“facts sufficient to raise a

reasonable doubt about the prosecutor’s purpose”). But see United States v.

Johnson, 577 F.2d 1304, 1309 (5th Cir. 1978) (prima facie showing required

for discovery). Note that this entitlement does not necessarily mean that

dismissal is proper should compliance with discovery be impossible. See pp.

949-955 (“III. The Improper Dismissal Issue”) infra. Attorney General v. Irish

People, Inc., 684 F.2d 928, 221 U.S.App.D.C. 406 (D.C. Cir. 1980). The Court

must dismiss the indictment because any pleading that fails to plead

sufficient factual matters to show a plausible claim for relief upon the face of

the pleadings.

13
 Case 1:21-cr-00598-PLF Document 202 Filed 07/21/22 Page 15 of 38

II. Lack of Specificity

Lt. Zabavsky first moves to dismiss Counts II and III of the Indictment

for lack of specificity.

In order to prove Obstruction of Justice under 18 U.S.C § 1512(b)(3),

the Government must prove that the defendant knowingly and willfully (1)

engaged in misleading conduct toward another person, (2) with the intent to

hinder, delay, or prevent the communication of truthful information to a

federal law enforcement officer or federal judge, and (3) about the commission

or the possible commission of a federal crime. See 18 U.S.C. § 1512(b)(3);

United States v. Veal, 153 F.3d 1233, 1253 (11th Cir. 1998). For purposes of

this statute, misleading conduct is defined as:

(A) Knowingly making a false statement;

(B) Intentionally omitting information from a statement and
thereby causing a portion of such statement to be misleading,
or intentionally concealing a material fact, and thereby
creating a false impression by such statement;
(C) With intent to mislead, knowingly submitting or inviting
reliance on a writing or recording that is false, forged,
altered, or otherwise lacking in authenticity;
(D) With intent to mislead, knowingly submitting or inviting
reliance on a sample, specimen, map, photograph, boundary
mark, or other object that is misleading in a material respect;
or
(E) Knowingly using a trick, scheme, or device with intent to
mislead.
18 U.S.C. § 1515(a)(3). Therefore, an indictment for obstruction of justice

under 18 U.S.C 1512(b)(3) requires that a defendant have engaged in

misleading conduct as defined in 18 U.S.C § 1515(a)(3).

14
 Case 1:21-cr-00598-PLF Document 202 Filed 07/21/22 Page 16 of 38

This invalid Indictment fails to be sufficiently specific because it must

state more than the general terms of the statute under which a person is

being charged. “Undoubtedly the language of the statute may be used in the

general description of an offense, but it must be accompanied with such a

statement of the facts and circumstances as will inform the accused of the

specific offense, coming under the general description, with which he is

charged.” See Hamling v. United States, 418 U.S. 117-18 (1975). The

Indictment must provide the defendant with the information necessary to

understand the “core of criminality” of the charge. See Russell v. United

States, 369 U.S. 749, 764 (1962). The Court in Russell, while dealing with 2

U.S.C. § 192, stated that

“the very core of criminality under 2 U.S.C. § 192 is pertinency

to the subject under inquiry of the questions which the
defendant refused to answer. What the subject actually was,
therefore, is central to every prosecution under the statute.
Where guilt depends so crucially upon such a specific
identification of fact, our cases have uniformly held that an
indictment must do more than simple repeat the language of the
criminal statute.”

See Id., at 764 (emphasis added). Similarly, “engag[ing] in misleading

conduct toward another person” is the core of criminality under an

obstruction of justice charge for 18 U.S.C. § 1512(b)(3). 18 U.S.C. §

1512(b)(3). Therefore, the Indictment must provide more than the words of

the statute to describe misleading conduct.

The Indictment does not define the alleged misleading conduct upon a

specific identification of fact. Paragraphs 34 through 48 of the Indictment

15
 Case 1:21-cr-00598-PLF Document 202 Filed 07/21/22 Page 17 of 38

provide the “overt acts” that constitute the conspiracy to obstruct justice, and

thus the obstruction of justice as well. See Indict. at ¶ 34-48, 49. At no point

does the Indictment provide any detailed description of the “misleading

conduct” so as to inform Lt. Zabavsky of the nature of that conduct.

Paragraph 46 of the Indictment concerns the allegedly misleading

conduct. “At the Fourth District police station, SUTTON and ZABAVSKY

met with the Watch Commander, the senior-most official in charge, and

provided him with a misleading account of the incident.” Indict. at ¶ 46. The

subparagraphs (a through f) do not contain further specifications on what

form of “misleading conduct” as defined by 18 U.S.C. § 1515(a)(3) the

government accuses Lt. Zabavsky of committing. See Indict. ¶ 46(a)-(f); 18

U.S.C. § 1515(a)(3)(A)-€.

The Indictment must state more than the words of a statute that a

defendant in order to be sufficient. While this Indictment does provide

allegedly misleading conduct, the subparagraphs do not describe the conduct

with the clarity necessary to for Lt. Zabavsky to determine the form of

misleading conduct that he is accused of. The Indictment does not state

which of the portions of the “account of the incident” are misleading nor does

it provide how these statements are allegedly misleading. See Indict. ¶ 46(a)-

(f). As a result, the Indictment is missing an assertation of what constituted

the misleading conduct necessary for an obstruction of justice charge under

18 U.S.C § 1512(b)(3). Lacking any assertion as to the “core of criminality”

16
 Case 1:21-cr-00598-PLF Document 202 Filed 07/21/22 Page 18 of 38

required for obstruction of justice, the Indictment must be dismissed for a

lack of specificity.

The Indictment further lacks specificity on the third component of an

obstruction of justice charge under 18 U.S.C § 1512(b)(3), that the

information transmitted be “about the commission or the possible commission

of a federal crime.” See 18 U.S.C § 1512(b)(3). This component “does not

depend on the existence or imminency of a federal case or investigation but

rather on the possible existence of a federal crime and a defendant’s intention

to thwart an inquiry into that crime.” See Veal, 153 F.3d at 1250 (emphasis

in original). However, the indictment does not state what federal crime, or

even what possible federal crime, would be investigated. The only

clarification from the Indictment is the “referral of the matter to federal

authorities for a criminal civil rights investigation.” See Indict. ¶ 50.

However, that statement vague statement leaves Lt. Zabavsky unaware of

the potential federal crime he may have committed. The possible existence of

the federal crime is an essential element of the obstruction charge, and the

mere stating of a category of offenses does not leave a defendant with the

information necessary to defend against that charge.

III. Failure to State an Offense

Lt. Zabavsky moves to dismiss Counts II and III of the Indictment for

failing to state an offense. The Indictment fails to state an offense under

17
 Case 1:21-cr-00598-PLF Document 202 Filed 07/21/22 Page 19 of 38

either 18 U.S.C. § 1512(b)(3) or 18 U.S.C. § 371 and the theory of the

Government’s case does not describe offenses under 18 U.S.C. §§ 1512(b)(3) or

371.

A. Most of the Overt Acts in the Indictment Fail to Address the

Charges

Lt. Zabavsky has been charged with Obstruction of Justice and

Conspiracy to Obstruct Justice. See generally Indictment. The charge for

obstruction of justice under 18 U.S.C. § 1512(b)(3) requires that a defendant

“uses intimidation, threatens, or corruptly persuades another person, or

attempts to do so, or engages in misleading conduct toward another person.”

18 U.S.C. § 1512(b). As discussed above, 18 U.S.C. § 1515(a)(3) defines

misleading conduct for purposes of 18 U.S.C. § 1512(b)(3).

The Indictment provides a list of 15 “Overt Acts” that were allegedly

performed by Officers Zabavsky and Sutton in a conspiracy to obstruct justice

under 18 USC §§ 1512(b)(3) and 371. However, the vast majority of these

must be discounted by the Court as they do not meet the requirement of

being “misleading conduct.” See 18 U.S.C. § 1515(a)(3).

The only overt acts that provide any claim of misleading conduct are

contained in paragraphs 46, 47, and 48 of the Indictment. Paragraph 46

reads:

46. At the Fourth District police station, SUTTON and

ZABAVSKY met with the Watch commander, the senior-most

18
 Case 1:21-cr-00598-PLF Document 202 Filed 07/21/22 Page 20 of 38

official in charge, and provided him with a misleading account of

the incident:
a. SUTTON and ZABAVSKY portrayed the incident as a brief
attempted traffic stop from which a moped driver took off
and was then hit by a vehicle;
b. SUTTON minimized his conduct, saying that he did not
engage in a vehicular pursuit;
c. ZABAVSKY said that he did not know if SUTTON had
engaged in a vehicular pursuit;
d. ZABAVSKY withheld information concerning his own
involvement in the pursuit;
e. ZABAVSKY said that Hylton-Brown had been drunk and had
been slurring his words; and,
f. SUTTON and ZABAVSKY withheld all information about
Hylton-Brown’s serious injuries.

See Indict., at ¶ 46. Paragraph 47 of the Indictment reads “SUTTON drafted

a traffic crash report that minimized the extent of the observable injuries to

Hylton-Brown.” See Indict., at ¶ 47. Paragraph 48 of the Indictment reads

“ZABAVSKY continued to withhold from the Watch Commander all

information about Hylton-Brown’s serious injuries and updates about his

condition, despite knowing that it was critical and worsening.” See Indict., at

¶48.

These three “overt actions,” all taking place after Officers Zabavsky

and Sutton returned to the Fourth District, are the only overt actions that

contain any allegations of dishonest conduct. However, none of these include

any language about the nature of the misleading conduct that aligns with the

definitions of misleading conduct found within 18 U.S.C. § 1515(a)(3).

For instance, the Indictment does not specify that Officer Zabavsky

knew of Hylton-Brown’s medical condition or that he had an affirmative

19
 Case 1:21-cr-00598-PLF Document 202 Filed 07/21/22 Page 21 of 38

responsibility to share it with the Watch Commander. The Indictment does

not contain allegations that Zabavsky intentionally made any false

statements, or that he knowingly used a trick, scheme, or device with intent

to mislead.

The Indictment must state more than just the mere words of the

statute. The Court in Russell found that “our cases have uniformly held that

an indictment must do more than simply repeat the language of the criminal

statute.” Russell, 368 U.S. at 764. However, the Indictment states that

Zabavsky’s account of the incident was “misleading” without specifying how

the account of the incident as relayed contrasted with reality. As a result, it

does not meet any definition of misleading conduct as presented in 18 U.S.C §

1515(a)(3).

The Indictment does not present any situations where there was

alleged misleading conduct as defined by 18 U.S.C § 1515(a)(3). Therefore,

Count III for Obstruction of Justice under 18 U.S.C § 1512(b)(3) cannot

survive a motion to dismiss for failure to state an offense as an essential

element of the offense was not included in the Indictment.

B. The Indictment Does Not State that Lt. Zabavsky Knew that a
Referral for Federal Prosecution was Reasonably Likely

The Court has moved away from the Veal standard of a “possible”

communication with federal law enforcement to requiring a likely

communication. See Fowler v. United States, 563 U.S. 668, 676 (2011).

20
 Case 1:21-cr-00598-PLF Document 202 Filed 07/21/22 Page 22 of 38

“We… hold that (in a case such as this one where the defendant does not

have particular federal law enforcement officers in mind) the Government

must show a reasonable likelihood that, had, e.g., the victim communicated

with law enforcement officers, at least one relevant communication would

have been made to a federal law enforcement officer.” See id., at 677. While

Fowler was concerned with witness tampering as part of 18 U.S.C. §

1512(b)(3), the statute is the same.

Therefore, in order to state an offense, the Indictment must provide

that the defendant knew of a particular law enforcement officer and that

there was a reasonable likelihood that a relevant communication would have

been made to a federal law enforcement officer but for the defendant’s

actions.

The use of the “possible” standard for the existence of communication

with law enforcement leads to 18 U.S.C § 1512(b)(3) becoming overly broad.

“[B]ecause of the frequent overlap between state and federal crimes, the use

of a standard based on the word ‘possible’ would transform a federally

oriented statute into a statute that would deal with crimes, investigations,

and witness tampering that, as a practical matter, are purely state in

nature.” Fowler, 563 U.S. 668, at 677 (2011).1 The Indictment alleges that

1 The Court in Fowler was concerned that a “possible” standard would lead to over-
application of 18 U.S.C. § 1512(b)(3) and dilute its separate statutory components. “Often,
when a defendant acts in ways that violate state criminal law, some or all of acts will violate
federal criminal law as well. And where a federal crime is at issue, communication with
federal law enforcement officers is almost always a possibility. Thus, to allow the
Government to show only a mere possibility that a communication would have been with

21
 Case 1:21-cr-00598-PLF Document 202 Filed 07/21/22 Page 23 of 38

Lt. Zabavsky acted to “prevent an internal investigation of the incident and

referral of the matter to federal authorities for a criminal civil rights

investigation.” See generally Indict; Indict. ¶ 50. However, the Indictment

does not provide that Officer Zabavsky knew that there could be a referral to

federal authorities, or even that it was a possibility.

Further, the Indictment does not provide that Officer Zabavsky knew or

should have known that a statement made would be transmitted to a federal

officer. Therefore, the Indictment is insufficient because it does not contain

reference to a reasonable likelihood that a statement would be transmitted to

federal law enforcement.

C. Federal Nexus Test

There is no federal nexus required for an obstruction of justice charge

under 18 U.S.C. § 1512(b)(3). The federal nexus requires that an alleged

obstruction of justice be with the intent to hinder, delay, or prevent a federal

investigation. See Veal, 153 F.3d at 1250. However, there is no requirement

of specific intent that federal officials must be misled; instead it must be

merely likely that misleading information is transferred to a federal official.

See Fowler, 563 U.S. at 667.

federal officials is to permit the Government to show little more than the possible
commission of a federal offense... The ‘possibility’ standard would thereby weaken or
eliminate the independent force of the separate statutory requirement that the defendant…
intent to prevent communication with one who is ‘a law enforcement officer or judge of the
United States.” Fowler, 563 U.S. 668, 676 (2011).

22
 Case 1:21-cr-00598-PLF Document 202 Filed 07/21/22 Page 24 of 38

There is no requirement that a federal law actually be broken in order

for 18 U.S.C. § 1512(b)(3) to apply. “One who attempts to corruptly influence

an investigation takes his or her witnesses and investigations as he or she

finds them. Thus, if the investigation or prosecution a defendant tries to

hamper turns out to be federal, the witness is guilty of tampering with a

federal witness even if the prosecution is unable to establish the facts

necessary to establish a violation of federal law.” See United States v.

Applewhaite, 195 F.3d 679, 688 (3d Cir. 1999).

The Third Circuit in Applewhaite further distinguished this standard

to state that “[w]hen the government charges a defendant with violating

federal law, but fails to prove the defendant’s guilt, a communication about

that prosecution or investigation is clearly one that concerns a ‘possible’

violation of federal law.” See id., at 688. In this case, there have been no

federal charges besides the obstruction of justice and conspiracy to obstruct

justice charges. Furthermore, there has been no statement that there was a

possible federal criminal violation. While the Indictment states that there

was a potential for a referral to various federal authorities for a criminal civil

rights investigation, the potential for an investigation is not synonymous for

the possibility of a federal crime. Therefore, the indictment does not state

that there was a possibility of a federal crime and as a result must be

dismissed.

23
 Case 1:21-cr-00598-PLF Document 202 Filed 07/21/22 Page 25 of 38

IV. Conspiracy to Obstruct Justice Cannot Stand on Its Own

The Government has indicted Lt. Zabavsky under 18 U.S.C. § 371 for

Conspiracy to Obstruct Justice. 18 U.S.C. § 371 reads

If two or more persons conspire either to commit any offense

against the United States, or to defraud the United States, or
any agency thereof in any manner or for any purpose, and one or
more of such persons do any act to effect the object of the
conspiracy, each shall be fined under this title or imprisoned not
more than five years, or both.

18 U.S.C. § 371. The Courts have read this statute to actually describe

two crimes, one for conspiracy to defraud the United States while the

other is to commit any offense against the United States. These two

crimes each have different requirements to prove at trial, with the

Court finding that 18 U.S.C. § 371

“prohibits two distinct types of conspiracies; conspiracies to

defraud the United States and conspiracies to commit an offense
against the United States. While the offense clause governs a
conspiracy to commit a specific offense, defined elsewhere in the
federal criminal code, the defraud clause is broader and covers
agreements to interfere with or to obstruct government’s lawful
functions.” United States v. Bilzerian, 926 F.2d 1285, 1301 (2d
Cir. 1991).

The Government has indicted Lt. Zabavsky under the offense clause,

claiming that “TERRENCE SUTTON and ANDREW ZABAVSKY, did

knowingly combine, conspire, confederate, and agree with each other to

commit an offense against the United States…” See Indict. ¶ 31. Therefore,

in order for the Indictment to be sufficient, the government must provide the

details of the underlying offense.

24
 Case 1:21-cr-00598-PLF Document 202 Filed 07/21/22 Page 26 of 38

The Indictment must state more than the words of a statute to be

sufficient. Therefore, the government must provide more detail than the fact

that Sutton and Zabavsky allegedly “did knowingly combine, conspire,

confederate, and agree with each other to commit an offense against the

United States—that is, to engage 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.” Indict. ¶ 31. The

language in the Indictment of the underlying offense is merely a recitation of

the statute for obstruction of justice that the prosecution decided to use in

this matter. Compare Indict. ¶ 31, with 18 U.S.C. § 1512(b)(3). Therefore,

the Indictment must state the specifics of the charge beyond what is provided

under the headline “The Conspiracy.”

For instance, the Court in Mohney found that the indictment for a

charge under 18 U.S.C § 371 was sufficient when

[t]he indictment… set forth the roles played by each defendant,

the overt actions they took in furtherance of the conspiracy, and
the means used to accomplish the conspiracy. The indictment,
which tracked the language of section 371, named the agency
impeded and explained how, and by whom, the agency was
impeded, and clearly charged a violation of the defraud clause of
section 371.

United States v. Mohney, 949 F.2d 899, 904 (6th Cir. 1992). While Mohney

concerned the defraud clause of § 371, it can still help indicate the necessary

components in an indictment for a conspiracy charge under 18 U.S.C. § 371.

25
 Case 1:21-cr-00598-PLF Document 202 Filed 07/21/22 Page 27 of 38

As a result, the Indictment must state the means of the conspiracy to a

degree that, if they are found to be true, could lead a reasonable jury to a

guilty verdict.

A conviction for conspiracy under the offense clause of § 371 requires a

showing that (1) the defendant entered into an agreement with at least one

other person (2) to commit a specific offense, (3) that the defendant knowingly

participated in the conspiracy with the intent to commit the offense and (4)

that at least one overt act was committed in furtherance of the conspiracy.

U.S. v. Gatling, 96 F.3d 1511, 1518, 321 U.S.App. D.C. 63 (D.C. Cir. 1996).

The government must prove that at least two defendants had knowledge of

the object of the conspiracy when they entered into the agreement. See

Ingram v. United States, 360 U.S. 672, 79 S.Ct. 1314, 3 L.Ed.2d 1503 (1959)

(“an essential ingredient of the proof was knowledge [of the legal

requirements]… without the knowledge, the intent cannot exist).

There is no allegation in the indictment that Sutton or Zabavsky had

any knowledge of the legal requirements placed on them, or that they had

knowledge that their actions would be for illegal purposes. While conspiracy

can be proven by circumstantial evidence, the indictment must still contain

an allegation that both Zabavsky and Sutton knew that they were conspiring

to obstruct justice. The indictment contains no such allegation. Therefore,

the indictment lacks the knowledge requirement for a conspiracy charge

under 18 U.S.C § 371.

26
 Case 1:21-cr-00598-PLF Document 202 Filed 07/21/22 Page 28 of 38

The conspiracy as charged in the Indictment cannot stand on its own.

The Government elected to use the “offense clause” of 18 U.S.C. § 371 rather

than the “defraud clause.” That decision follows the ruling in Minarik, which

stated “a Congressional statute closely defining those duties [in following the

law] takes a conspiracy to avoid them out of the defraud clause and places it

in the offense clause.” See United States v. Minarik, 875 F.2d 1186, 1196 (6th

Cir. 1989). However, as part of charging under the offense clause,

“prosecutors and courts are required to determine and acknowledge exactly

what the alleged crime is. They may not allow the facts to define the crime

through hindsight after the case is over.” See id., at 1196.

The underlying conduct that forms the conspiracy must be a federal

crime and the manner and means of accomplishing the conspiracy must be

based around that federal crime. In this case, the Government determined

that the alleged conspiracy was to obstruct justice under 18 U.S.C §

1512(b)(3). See Indict. ¶ 31. As discussed earlier, this charge for obstruction

of justice requires that the defendant knowingly engage in misleading

conduct.

The Indictment does not provide any specifications that Zabavsky

knowingly engaged in misleading conduct. The four “manners and means of

the conspiracy” are:

a. Delaying notification of the traffic collision to MPD officials

and, in turn, federal authorities;

27
 Case 1:21-cr-00598-PLF Document 202 Filed 07/21/22 Page 29 of 38

b. Controlling the law enforcement response to the traffic crash

scene;
c. Willfully neglecting to collect and preserve relevant evidence;
and,
d. Withholding information from the Watch Commander and
misleading him about the circumstances of the traffic
collision.

Indict. ¶ 33. These “manners and means of the conspiracy” must include

misleading conduct as defined in 18 U.S.C. § 1515(a)(3). It is not sufficient

that the charges merely state the statute, but instead they must provide

enough information to “inform the accused of the specific offense.” See

Hamling, 418 U.S. 117-18 (1975).

The four “manners and means” do not meet the requirements of

misleading conduct according to 18 U.S.C. §1515(a)(3). The “manners and

means of the conspiracy” do not include any accusations of Zabavsky

(A) knowingly making a false statement;

(B) intentionally omitting information from a statement and
thereby causing a portion of such statement to be
misleading, or intentionally concealing a material fact,
and thereby creating a false impression by such
statement;
(C) with intent to mislead, knowingly submitting or inviting
reliance on a writing or recording that is false, forged,
altered, or otherwise lacking in authenticity;
(D) with intent to mislead, knowingly submitting or inviting
reliance on a sample, specimen, map, photograph,
boundary mark, or other object that is misleading in a
material respect; or
(E) knowingly using a trick, scheme, or device with intent to
mislead.”

18 U.S.C. § 1515(a)(3)(A)-(a)(3)(E).

28
 Case 1:21-cr-00598-PLF Document 202 Filed 07/21/22 Page 30 of 38

Merely stating the word “misleading” in the indictment is not enough

to provide any indication that Officer Zabavsky actually partook in

misleading conduct, nor does the Indictment sufficiently clarify what that

misleading conduct would be. Even taking the words of the indictment as

true, the use of the word “misleading” does not properly advise the defendant

of the crime they have been accused of.

While the “manner and means” section does not clarify the misleading

conduct, the government did attempt to describe the “misleading” nature of

the account to the Watch Commander in paragraph 46 of the indictment. See

Indict. ¶ 46. However, that paragraph, as revealed earlier in the discussion

of the insufficiency of the obstruction of justice charge, does not provide the

defendant with enough information to properly prepare a defense against the

charges. The Indictment provides no indication on whether that paragraph

describes the account of the incident as described by Zabavsky and Sutton or

whether it refers to how that conversation was allegedly misleading.

Furthermore, the Indictment does not state the facts as would not be

allegedly misleading. Without being aware of what the Government claims

to be the truth, the defendant is unable to properly prepare his defense

against a claim that he shared misleading information.

Therefore, the Indictment insufficiently alleges Charge 2: Conspiracy

to Obstruct Justice as there are insufficient details of the underlying offense.

29
 Case 1:21-cr-00598-PLF Document 202 Filed 07/21/22 Page 31 of 38

V. The Indictment Should be Dismissed Due to Improper or an Error

in Grand Jury Proceedings Pursuant to Rule 12(a)(v) Namely,
Contradictory Evidence of Indictment Not Provided to Grand Jury.

The indictment must be dismissed because the

. According to the indictment, no felony had

been committed by Hylton Brown, however, this is likely not the case, given

the nature of his potential violation of an order of protection he was violating

in the evening of the accident.

It is undisputed that Hylton-Brown had an ankle bracelet on for

monitoring due to a domestic violence matter charged in the state of

Maryland. This monitoring device related to an order of protection issued to

him in Montgomery County Maryland. It is relevant to this case as his

violating this order of protection during the initial stop by police, is a federal

felony when he is in another jurisdiction, the District of Columbia.

This information about the possible felony being committed by Hylton

Brown during the pursuit in

this matter. The DOJ manual reads :

In dealing with the grand jury, the prosecutor must always

conduct himself or herself as an officer of the court whose function
is to ensure that justice is done and that guilt shall not escape nor
innocence suffer. The prosecutor must recognize that the grand
jury is an independent body, whose functions include not only the
investigation of crime and the initiation of criminal prosecution
but also the protection of the citizenry from unfounded criminal
charges. The prosecutor’s responsibility is to advise the grand
jury on the law and to present evidence for its consideration. In
discharging these responsibilities, the prosecutor must be

30
 Case 1:21-cr-00598-PLF Document 202 Filed 07/21/22 Page 32 of 38

scrupulously fair to all witnesses and must do nothing to inflame

or otherwise improperly influence the grand jurors.

Department of Justice, Justice Manual, 9-11.00 – Grand Jury (2020). Here,

the indictment reads in part, in paragraph 8: “General Orders define a police

vehicular pursuit as “an attempt by a member of this Department to

apprehend a fleeing felon” General Order No. 301.03 Pts. III.2 and IV.F.”

Reading the four corners of the indictment, this information would contradict

it directly, and dismiss the charges.

And, according to the Prosecution, it is not relevant to the case

whether the suspect, Hylton Brown, had been committing a felony during the

police encounter.2 This is in contradiction to the indictment filed by it. See

Indict. ¶ 8. Further,

Title 18 U.S.C. § 2262: - Interstate Violation of a Protective Order.

It is

not the purview of the prosecutor to withhold information which does not

match their theory of the case. Here, this potential Brady material,

exculpates the defendants as it provides a defense to the reason for the police

2 In response to Zabavsky’s request to obtain a copy of the order of protection, the

prosecution stated that it was not relevant, and did not have a copy of the order.
31
 Case 1:21-cr-00598-PLF Document 202 Filed 07/21/22 Page 33 of 38

encounter with suspect Hylton-Brown. See United States v. Caruso, 934 F3d

1002 (9th Cir. 2019).

For these reasons, the indictment must be dismissed against Zabavksy

for violating his basic right to have exculpatory information provided to him.

An argument might be made that a dismissal of the murder charge against

the defendant would not affect his claim, however, under the intertwined

nature of both claims that the dismissal of the one would naturally dismiss

the others. See United States v. Smith, 729 F.Supp. 1380 (D.D.C. 1990)

(Without the state charge other charges should be dismissed).

There is no obstruction.

Again,

there was no obstruction of the process.

Further, an allegation that Zabavsky should have known of the serious

nature of the injury immediately belies the facts

32
 Case 1:21-cr-00598-PLF Document 202 Filed 07/21/22 Page 34 of 38

Again, rather

than act as an officer of the court and present all evidence in favor of the

truth, the prosecution did not, and instead purposefully mislead the jury as to

the likelihood of Lt. Zabavsky’s guilt.

VI. Charge 2: Conspiracy Must be Dismissed because the Grand Jury

did not have exculpatory evidence presented to it by the prosecution

According to the prosecution the four “manners and means of the

conspiracy” in this incident which are all dependent on obstruction are:

a. Delaying notification of the traffic collision to MPD officials

and, in turn, federal authorities;
b. Controlling the law enforcement response to the traffic crash
scene;
c. Willfully neglecting to collect and preserve relevant evidence;
and,
d. Withholding information from the Watch Commander and
misleading him about the circumstances of the traffic
collision.
Indict. ¶ 33. These “manners and means of the conspiracy” must include

misleading conduct as defined in 18 U.S.C. § 1515(a)(3).

Here, the prosecution

33
 Case 1:21-cr-00598-PLF Document 202 Filed 07/21/22 Page 35 of 38

It is not reasonably foreseeable that Lt. Zabavsky attempted to

mislead or intentionally mislead a federal criminal investigation. And, in a

conspiracy, the evidence presented and indictment voted upon must have an

object of the conspiracy known to both Lt. Zabavsky and Sutton. Here, no

statement except a declaration that they did it, without specifics indicating

their knowledge of how a minor delay would somehow conspire to obstruct

justice.

A blanket statement that something is so is not enough to justify the

indictment. Here, the prosecution merely stated that Lt. Zabavsky and

Sutton “hid” information to prevent an “internal investigation.” Indictment

¶50. It does not make it so merely because they said it happened.

, and this leading to a possible felony being committed at the

 Case 1:21-cr-00598-PLF Document 202 Filed 07/21/22 Page 36 of 38

time of the accident. Instead, the prosecution

For these reasons, the court must dismiss this cause for conspiracy due

to a lack of proper actions as officers of the court.

CONCLUSION

After reviewing the indictment and prosecutorial misconduct in

proceeding before the grand jury, namely withholding potentially exculpatory

evidence, the charged must be dismissed against Lt. Zabavsky.

Respectfully submitted,

ZAMPOGNA, P.C.

By: /s/ Christopher Zampogna

Christopher A. Zampogna
ZAMPOGNA, P.C.
D.C. Bar No.: 44985
1776 K St, NW 700
WASHINGTON, DC 20006
202-223-6635
caz@zampognalaw.com
Attorney for the Plaintiff

35
 Case 1:21-cr-00598-PLF Document 202 Filed 07/21/22 Page 37 of 38

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing motion to dismiss
was served via ECF under seal on all counsel of record on this 29th day of
June, 2022:

/s/Christopher A. Zampogna
Christopher A. Zampogna

36
 Case 1:21-cr-00598-PLF Document 202 Filed 07/21/22 Page 38 of 38

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

United States, §
§
v. §
§
Andrew Zabavsky, et al. , §
Defendants. §
§ Case No. 21-cr-598-PLF
§

ORDER

Upon consideration of Defendant Andrew Zabavsky’s Motion to

Dismiss and all responses, it is on this _____ day of ____, 2022 HEREBY

ORDERED that

Defendant Zabavsky’s Motion to Dismiss is GRANTED;

Count II of the Indictment is DISMISSED; and

Count III of the Indictment is DISMISSED.

__________________
Judge Paul Friedman

37