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             DISTRICT OF COLUMBIA COURT OF APPEALS

                                  No. 17-CF-611


                          COREY D. ASKEW, APPELLANT,

                                            v.

                            UNITED STATES, APPELLEE.


                          Appeal from the Superior Court
                            of the District of Columbia
                                  (CF2-17286-13)

                    (Hon. Frederick H. Weisberg, Trial Judge)

(Submitted May 17, 2019                                    Decided July 2, 2020)

      Jesse I. Winograd was on the brief for appellant.

       Jessie K. Liu, United States Attorney, and Elizabeth Trosman, Chrisellen
Kolb, and Elizabeth H. Danello, Assistant United States Attorneys, were on the
brief for appellee.

      Before GLICKMAN, EASTERLY, and MCLEESE, Associate Judges.

      EASTERLY, Associate Judge: Corey D. Askew appeals from his convictions

of four counts of misdemeanor assault on a police officer. D.C. Code § 22-405(b)

(2012 Repl. & 2019 Supp.) In this opinion, we initially address Mr. Askew’s

nonmeritorious arguments and then focus on the scope of the government’s
                                             2

obligation to preserve evidence under Super. Ct. Crim. R. 16 (“Rule 16”). We

ultimately conclude that we must remand the record before we can resolve Mr.

Askew’s claim that the government’s breach of this duty requires reversal of his

convictions.



                            I. Facts and Procedural History



      On the evening of September 27, 2013, Mr. Askew was driving southbound

on Georgia Avenue N.W. when he was pulled over by Metropolitan Police

Department (“MPD”) officers because his car’s lights were not functioning. 1

Based on computer information indicating that Mr. Askew’s license was

suspended, the officers sought to arrest him. A physical altercation involving four

officers ensued, during which Mr. Askew and the four officers were injured. Mr.

Askew was ultimately handcuffed and brought to the police station. The next day,

Mr. Askew was charged with one count of felony assault on a police officer

(“APO”) in violation of D.C. Code § 22-405(c) (2019 Supp.), and at his

presentment, defense counsel requested that the government fulfill its preservation




      1
          The officers had different recollections as to whether the car’s headlights,
taillights, or both were malfunctioning and were cross-examined on this point.
                                            3

and disclosure obligations under Brady v. Maryland, 373 U.S. 83 (1963), and Rule

16.

      Mr. Askew was subsequently indicted in June 2014 and charged with two

counts of felony APO and two counts of misdemeanor APO, D.C. Code § 22-

405(b)–(c), each count applying to a different involved officer. In July 2014,

defense counsel sent the government a “Rosser” letter 2 memorializing the

discovery he had received to date. In that letter, counsel renewed the request that

the government comply with its obligations under Brady v. Maryland and Rule 16,

specifically referencing “photographs and videos” and “reports of any medical

treatment.” In addition, counsel reminded the government of its “duty to preserve

any evidence that is discoverable,” citing case law from this court for the

proposition that “[t]he duty to produce discoverable evidence entails the antecedent

duty to preserve that evidence.”3



      For reasons not relevant to this appeal, prosecution of Mr. Askew’s case was

delayed, and in May 2016 the government dismissed the indicted charges and re-




      2
          Rosser v. United States, 381 A.2d 598 (D.C. 1977).
      3
         Allen v. United States, 649 A.2d 548, 553 (D.C. 1994) (citing Brown
(Bradford) v. United States, 372 A.2d 557, 560 (D.C. 1977)).
                                              4

charged Mr. Askew by information with four counts of misdemeanor APO in

violation of D.C. Code § 22-405(b).



      In April 2016, Mr. Askew’s new counsel wrote the government “to

memorialize [his] understanding of the government’s disclosures thus far and to

reiterate prior disclosure requests made on Mr. Askew’s behalf, including those

made at presentment, in [his] predecessor[] [counsel’s] Rosser letters, and at [their]

status hearings.” Defense counsel acknowledged receipt of four pages of medical

records for one officer, Officer Jimenez, and requested “[a]ny other medical

records” for the officers “generated as the result of this alleged incident.” With

respect to the outstanding request for video footage, counsel noted that “as MPD is

aware, multiple government cameras cover the area in which this incident took

place,” and, “[a]s you also know, government cameras loop over and delete

footage if not properly preserved, often within as short [a time] as 10 days.”

Counsel reminded the government of its “obligation under Rule 16 and the

Constitution to preserve such footage,” again citing this court’s case law. 4




      4
         Counsel again cited to Allen, 649 A.2d 548, and also cited to this court’s
decision in Koonce v. District of Columbia, 111 A.3d 1009 (D.C. 2015).
                                             5

      In November 2016, defense counsel filed a “motion for sanctions for failure

to preserve and produce evidence.” Counsel asserted that (1) at the time of Mr.

Askew’s arrest, “MPD was operating two crime cameras less than a block away”

that “would have captured Mr. Askew’s vehicle driving on Georgia Avenue (the

condition of which [was] the purported reason for the stop of the vehicle), as well

as the interaction between Mr. Askew and the involved officers (which [was] the

basis for the charges against Mr. Askew),” and (2) when “Mr. Askew was taken to

the stationhouse that evening[,] [h]e walked past several cameras in the

stationhouse that would [have] captured his gait, his interaction with [the] officers,

his injuries, and his injuries’ impact on his ability to walk.” Counsel stated that he

had received no video footage from any of these cameras, that “MPD knew or

should have k[n]own of the existence of the MPD video footage and accordingly

should have taken steps to preserve it,” and that “the government’s failure to

preserve these critical recordings amount[ed] to a violation of Rule 16.” As a

sanction, counsel asked either for the charges against Mr. Askew to be dismissed

or for an opportunity to be heard on lesser remedies.



      In response to Mr. Askew’s motion, the government stated that it did “not

have th[e] videos” from the Closed Circuit Television (CCTV) cameras in the

vicinity of Mr. Askew’s arrest and further argued that it “never had reason to
                                            6

preserve them” because the videos were “immaterial.” The government proffered

that the CCTV cameras would not have captured any footage of the condition of

Mr. Askew’s car lights or the events of the traffic stop because one was a

stationary, south-facing camera located south of where Mr. Askew was stopped

while driving southbound on Georgia Avenue, and the other was a rotating camera

that could have potentially pointed towards Mr. Askew and his car but was more

than 400 feet away and thus “out of [] range” from the location of the stop.

Contemplating that the court could require it to provide evidentiary support for its

proffer, the government stated that it had “an MPD officer familiar with the camera

system to testify at a hearing to the camera’s capabilities.” But the government

also asserted that, even had the CCTV camera been closer to the location of the

stop, “it is only speculation to think that the camera would have captured anything

relevant.”



      As for the stationhouse cameras, the government’s primary argument was

that “any video from [those] cameras . . . would be irrelevant and immaterial . . .

where the entire incident took place somewhere else.” In addition, the government

stressed both the newness of this request—asserting the request was “so new that it

would cause blisters if it were a pair of shoes”—and the absence of any reason for

the government to have anticipated it.      The government did not dispute Mr.
                                              7

Askew’s understanding that the MPD had a policy or practice of recording over

video footage after ten days.5



      The court heard argument on the Rule 16 motion at the start of trial in

February 2017. Focusing only on what the rotating CCTV camera would have

captured, the defense challenged the government’s proffer that it was out of range,

arguing that the footage would have captured and tested the truth of the “allegation

that the headlights were off” and “would have captured some of the interaction

[when it was] pointing up Georgia Avenue.” Counsel further argued that the

government had presented no evidence to support its proffer to the contrary, noting

that “the government never pulled a video from another day” (as it had done in

other cases counsel had litigated) to show the range of the camera, whereas counsel

had appended to his motion a photograph showing the camera’s location in relation

to the incident. For its part, the government continued to assert that the rotating

camera would not have captured either the traffic stop or “the struggle,” and in any

event that the government never had any reason to preserve that footage because

the defense did not specifically request the video from that camera until April

2016, “far after . . . the footage had been written over.”

      5
         Subsequently, in response to questioning from the court, the government
affirmatively expressed its “understanding” that the MPD had such a policy.
                                               8

      Without taking any evidence, the court declined to impose sanctions.

Regarding the CCTV footage, the court “agree[d] . . . completely” with the

government that because the car was driving southbound and stopped north of the

cameras, the rotating camera could not have captured the car’s taillights even if it

were pointing toward the car. But the court did not address whether this camera

could have captured Mr. Askew’s headlights or his interaction with the police once

he was out of the car. The court concluded its discussion of the Rule 16 request for

CCTV footage by telling defense counsel “you didn’t ask for it, and it wasn’t

requested until almost three years after the incident.” 6



      Regarding the stationhouse footage, the court acknowledged that it “might

have shown some things that might have been useful to the defense,”7 but the court




      6
          During an earlier discussion about what the government’s discovery
obligations were, the court indicated it had different expectations depending on the
nature of the case. Noting that “misdemeanors come fast and furious,” the court
observed “there’s a limit to what I’m willing to require the prosecutors to do.” The
court subsequently opined that the police would not have looked for CCTV footage
because “[i]t’s not a shooting after all.” When counsel started to say that in his
experience the MPD had looked for such footage in other non-shooting cases, the
court responded, “it’s very unlikely in a traffic stop that went bad [that] they would
be looking at surveillance cameras.”
      7
         The government had argued that “it’s hard to understand how any
evidence of the defendant walking through the station house would either support
or contradict the government’s evidence that the defendant assaulted police
                                                                  (continued…)
                                             9

again relied on the fact that “[t]here was . . . no specific request to preserve [this

footage] at the time and there would have been no reason for [the government] to

preserve it without a specific request.” When defense counsel cited this court’s

recent decision in Koonce v. District of Columbia, 111 A.3d 1009 (D.C. 2015), as

authority for the proposition that counsel had no obligation to make a specific

request because “it should have been obvious” to the government that such video

footage needed to be preserved, the court distinguished Koonce as addressing only

the government’s obligation to preserve stationhouse footage in driving under the

influence (“DUI”) cases.8



      At trial, the government presented the testimony of the four officer-

complainants, who described how the altercation with Mr. Askew had unfolded:

Officers Allison Arana and Joshua Arana-Jimenez9 pulled Mr. Askew over because

his car lights were not on. Officer Jimenez asked Mr. Askew to get out of his car

in order to place him under arrest for driving with a suspended license. Mr. Askew

(…continued)
officers” as charged, but the court had explained that “the question is whether it
would tend to show that he also took some lumps, big ones.”
      8
          Prior to trial the court also ruled on and rejected Mr. Askew’s request to
continue the trial because of an outstanding motion to issue Brown subpoenas. See
infra II.A.
      9
         Officers Arana and Arana-Jimenez married in between the time of the
charged assault and the trial.
                                             10

complied with this directive, but when Officer Jimenez tried to handcuff him, Mr.

Askew swung an elbow at Officer Jimenez and took a few steps away from him.

Officer Arana and two other officers who had arrived on the scene, Officers

Clayton Bass and Joelle Joseph, stepped in to assist with a “tactical takedown” of

Mr. Askew, which involved forcibly bringing him to the ground, face down. 10 The

officers testified that Mr. Askew resisted, and while doing so was injured. The

officers also testified that they incurred a variety of injuries, either directly from

Mr. Askew or as a result of trying to subdue him: Officer Jimenez was bitten on

his hand; Officer Arana hurt her wrist and scraped her elbow and knee; Officer

Bass received an elbow to the face and scraped his knee; and Officer Joseph hurt

her hand and wrist. Officer Bass explained there was no body camera footage of

this incident because it predated the MPD’s issuance of body cameras to its

officers.



       Through the testimony of these officers, the government admitted a number

of photographs and medical records that had been disclosed to the defense pretrial.

In addition, two officers testified that they had been treated at the Police and Fire

Clinic and either had filled out or been given paperwork related to their injuries

       10
          A fifth officer subsequently arrived to assist with the arrest, but that
officer was not injured and did not testify.
                                             11

there.11 One officer testified that they were all “required” to report to the clinic if

they were injured while on duty. Defense counsel demanded production of those

records, and later requested that the charges be dismissed as a sanction for their

nonproduction. Based on representations by the government, however, the court

found that the government “d[id]n’t have them.” The court acknowledged that

whether the government should be deemed to have constructive possession of any

records from this clinic was a “novel issue.” But the court declined to address this

issue or grant the requested sanction—dismissal—for any Rule 16 violation

regarding these records, reasoning both that there had been other means for the

defense to obtain them (e.g., via subpoena) and that the defense had obtained other

medical records for these officers.



      Mr. Askew’s theory at trial was that he was acting lawfully to protect

himself against the officers’ use of excessive force. 12 Defense counsel argued that


      11
           According to the website cited by the government, the Police and Fire
Clinic is “a joint venture of Providence Hospital and the Washington Hospital
Center . . . [and] a unique privatization project with the government of the District
of Columbia”; the Clinic “provides occupational and preventive medical services
to the District’s more than 6,000 police officers, fire fighters, U.S. Park Police
officers[,] and U.S. Secret Service agents.”                  PFC Assocs., LLC,
https://www.pfcassociates.org/index.html https://perma.cc/T8UF-MNUD

      12
           See infra note 24.
                                           12

Mr. Askew had a shoulder problem that he had told Officer Jimenez about 13—so

even the officer’s initial act of pulling Mr. Askew’s hand behind his back to be

handcuffed was excessive force. He further argued that the officers had used

excessive force during and after the “tactical takedown,” 14 and that their trial

testimony was so incredible the government could not rely on it to prove Mr.

Askew’s guilt beyond a reasonable doubt.



      The court credited the defense witnesses, but did not find that anything they

said supported a finding of excessive force.        Regarding the government’s

witnesses, the court acknowledged that there had been “plenty” of “failures of

memory, inconsistent memory, [and] inconsistencies internally and externally in

the officers’ testimony.” Noting, however, that “[t]he events occurred almost three

and a half years ago,” and that the officers had different perspectives on a

confusing scene, the court found all four officers “exceedingly credible.” Finding

that Mr. Askew elbowed and bit Officer Jimenez and kicked at the other officers,

      13
           Mr. Askew did not testify, but the defense called Ben Titus, who
observed the incident from his porch and testified that he heard Mr. Askew shout
about a shoulder problem during the struggle. All of the officers denied, or stated
that they could not recall, hearing Mr. Askew say he had a shoulder problem.
      14
           All officers filled out PD Form 901 “use of force” reports after the
incident, and the physician’s assistant who treated Mr. Askew afterward testified
for the defense about abrasions Mr. Askew had on his forehead, right elbow, and
both knees.
                                            13

“without justifiable and excusable cause,” D.C. Code § 22-405(b), the court

convicted Mr. Askew of four counts of misdemeanor APO.



                                       II. Analysis



      We begin by addressing the claims by Mr. Askew that we find unpersuasive

in II.A–B.; we address his Rule 16 claims in II.C.



      A. Motion to Continue



      Mr. Askew argues the trial court should have granted his motion to continue

the trial because he had an outstanding motion to issue “Brown” subpoenas15 for

government witnesses’ medical records. See supra note 8. We review the denial

of a motion to continue a trial for abuse of discretion. See Brooks v. United States,

130 A.3d 952, 960 (D.C. 2016). Based on this record, we discern no abuse.



      Six factors are relevant when reviewing a trial court’s denial of a request for

continuance to gather evidence or obtain a witness: (1) the probative value of the



      15
           See Brown (Anthony) v. United States, 567 A.2d 426, 428 (D.C. 1989).
                                            14

evidence sought, (2) the likelihood the evidence can be obtained, (3) whether the

party seeking the continuance has exercised due diligence in finding that evidence,

(4) the prejudice that would result from the denial of the continuance, (5) the

prejudice to the opposing party had the continuance been granted, and (6) the

duration of the continuance and its potential disruption or delay of the trial.

Gilliam v. United States, 80 A.3d 192, 202 (D.C. 2013). In addition, “[i]f the

proposed testimony is not relevant or would make no difference in the outcome, a

denial of a continuance is not ordinarily an abuse of discretion.” Daley v. United

States, 739 A.2d 814, 818 (D.C. 1999); see also Johnson v. United States, 398

A.2d 354, 366 (D.C. 1979). Here, counsel sought a continuance four days before

trial to obtain additional medical records and to hire an expert to compare these

medical records against the photographs of the officers’ injuries prior to trial. But

although counsel requested the issuance of a Brown subpoena ten months earlier,

counsel never got a ruling on his request from the then-assigned trial judge; nor did

he seek a ruling from the next two judges assigned to the case, including the judge

assigned at the time of trial. Meanwhile, at the time this case went to trial it had

been pending for over three years, prompting the court to observe that counsel’s

effort to consider securing an expert and to press for a ruling was “late in the

extreme.” In addition, the trial court noted that because the defense already had
                                            15

photographs of the officer’s injuries, it did not see “how [the medical records

would] add[] any relevance to what [the defense] need[ed] to do.”



      Mr. Askew proffers that the probative value of the officer-complainants’

medical records would have been for impeachment, providing “invaluable and

neutral commentary on the credibility of the witnesses.”16 Mr. Askew does not

explain the extent of the prejudice suffered by the absence of those records when

he had photographs of the injuries and other impeaching materials which allowed

him to call the witnesses’ credibility into question. On the opposing side, the

government has conceded that “the record does not reveal any specific prejudice to

the government” beyond general concerns over fading memories. While it is likely

that the evidence could have been obtained with a short continuance and a court

subpoena, the trial court properly took into account the fact that, while the defense

had shown some diligence in the four months after filing the motion, the defense

had not been diligent in contacting or seeking a ruling from the subsequent trial

judges in the six months prior to trial. Balancing all of the relevant factors, we

cannot say that the court abused its discretion in denying defense counsel’s last-



      16
        Because the charges were now misdemeanors, actual injury to the officers
was no longer an element of the offense. Compare D.C. Code § 22-405(b), with
D.C. Code § 22-405(c).
                                             16

minute request for a continuance to obtain evidence and procure an expert for an

issue it had long been aware of in a case that was more than three years old.



      B. Napue Claim



      Mr. Askew alleges that the government presented “patently false” testimony

which it failed to correct in violation of Napue v. Illinois, 360 U.S. 264 (1959),

when it permitted Officer Jimenez to testify “that he was required to arrest Mr.

Askew based on the belief that Mr. Askew was driving [with] a suspended

license.” It is a “bedrock principle of due process in a criminal trial . . . that the

government may neither adduce or use false testimony nor allow testimony known

to be false to stand uncorrected.” Longus v. United States, 52 A.3d 836, 844 (D.C.

2012) (citing Napue, 360 U.S. at 269). Mr. Askew’s argument fails because it

lacks a factual foundation.



      When prompted by defense counsel with the question, “You don’t arrest

everybody who commits a violation of [operating a vehicle after a license

suspension (OAS)]?”; Officer Jimenez responded, “We are, [by] our general order,

[we] are required to, we shall make an arrest if someone is operating after [a]

suspension.” When asked whether he was permitted to give citations instead,
                                              17

Officer Jimenez elaborated that “[t]hrough departmental guidelines, in 2013, the

general order specifically says, you shall make an arrest for operating after

suspension, meaning we have no discretion.” Finally counsel asked, “You are

saying you had to arrest [Mr. Askew] . . . because you thought there was a

violation of OAS?” and Officer Jimenez responded, “Correct.” Counsel did not

confront Officer Jimenez with the referenced general order nor any other document

to challenge the veracity of his statements, nor did counsel express concern about

Officer Jimenez’s truthfulness on this point with the court and the government,

much less present any evidence that Officer Jimenez’s testimony about the general

order was false. 17



       To prevail on a claim that the government committed a Napue violation, the

defense must provide a “sufficient demonstration of uncorrected false testimony.”

Mitchell v. United States, 101 A.3d 1004, 1008 (D.C. 2014). Mr. Askew has made

no such demonstration in this case. Nor could he have because, as Officer Jimenez

testified, the general order in fact requires the police to arrest someone found to be

driving on a suspended license. See Metro. Police Dep’t, General Order GO-

303.01, Traffic Enforcement § I.B.1.e (1992). In his brief to this court, Mr. Askew



       17
            Even so, the government has not argued that this issue is unpreserved.
                                             18

relies on (1) the absence of any mention of arrests in D.C. Code § 50-1403.01

(2014 Repl. & 2019 Supp.), the provision setting the penalty for the offense of

driving on a suspended or revoked license, and (2) the general observation that

“[i]n Superior Court, non-custody traffic arraignment calendars are replete with

defendants who have violated that statute,” neither of which disproves what the

MPD general order in fact says. Devoid of support, Mr. Askew’s Napue claim

borders on frivolous, and we reject it.



       C. Rule 16



       Rule 16 imposes upon the government a range of discovery obligations,

including (as is pertinent in this case) an obligation to disclose, upon a request by a

defendant, (1) “[d]ocuments and [o]bjects,” including videos, 18 and (2) “the results

or reports of any physical . . . examination[s].” Super. Ct. Crim. R. 16(a)(1)(E)–

(F).   These items must be “within the government’s possession, custody, or

control”; “material to preparing the defense,” which is not a “high” “threshold”; 19



       18
            See Koonce, 111 A.3d at 1015 n.7.
       19
          Id. at 1013. “[T]he defendant need only establish a reasonable indication
that the requested evidence will either lead to other admissible evidence, assist the
defendant in the preparation of witnesses or in corroborating testimony, or be
useful as impeachment or rebuttal evidence” in order to satisfy this Rule 16
                                                                      (continued…)
                                            19

and, in the case of reports of examinations, the government attorney must also

“know[]—or through due diligence could know—that the [examinations] exist[].”

Id. To ensure that the government can fulfill these disclosure obligations, Rule 16

imposes on the government a duty of preservation. See Robinson v. United States,

825 A.2d 318, 328 (D.C. 2003) (“Only if evidence is carefully preserved during the

early stages of investigation will disclosure be possible later.” (internal quotation

marks omitted)).



      On appeal, Mr. Askew argues that the trial court erred when it declined to

sanction the government for violating Rule 16 by failing to preserve and produce

(1) surveillance footage from the rotating MPD-operated video camera located

near where he was arrested, (2) footage from any video cameras located inside the

police station where Mr. Askew was taken and booked, and (3) medical records for

the officers who reported to the Police and Fire Clinic. This court reviews a trial

court’s “discovery rulings for abuse of discretion, subject to the qualification that

the proper construction of Criminal Rule 16 is a legal question as to which our

review is de novo.” Weems v. United States, 191 A.3d 296, 300 (D.C. 2018).


(…continued)
standard. Id. (internal quotation marks omitted). A defendant need not make the
Brady showing that the information is “favorable to [the] accused,” Brady, 373
U.S. at 87. Koonce, 111 A.3d at 1015 n.9.
                                            20



        1. The CCTV and Stationhouse Video Footage



      The trial court declined to sanction the government for failing to disclose to

Mr. Askew the requested video footage at least in part because it concluded that

the government had no obligation to preserve this footage absent a defense request.

As to the CCTV footage, the court explained that the defense “didn’t ask for it, and

it wasn’t requested until almost three years after the incident”; as to the

stationhouse footage, the court explained “[t]here was . . . no specific request to

preserve [this footage] at the time and there would have been no reason for [the

government] to preserve it without a specific request.” For the reasons set forth

below, we conclude that the trial court’s understanding of the government’s

preservation obligations was flawed.



      The government has a duty under Rule 16 to preserve discoverable items in

its possession, custody, or control. Koonce, 111 A.3d at 1013. This duty is

antecedent to its obligation under the rule to disclose these materials upon a

defense request and is active even “before prosecution begins.”        Id. at 1017

(internal quotation marks omitted); see also Robinson, 825 A.2d at 328 (rejecting

the government’s argument that it had no obligation under Rule 16 to produce
                                            21

evidence that had already been destroyed “because before a request for discovery

has been made, the duty of disclosure is operative as a duty of preservation”

(internal quotation marks omitted)).     And because this duty is active before

particular charges have been brought against any defendant, the government’s

“[d]etermin[ation] whether there is an obligation to preserve evidence depends,”

not on the government’s assessment that it is “material to the preparation of the

defendant’s defense”—but rather “on [the government’s] reasonable expectation

that it will fall within the scope of evidence that is discoverable under Rule 16.”

Koonce, 111 A.3d at 1013, 1017.20 The government’s assessment of what ought to

be preserved must be “undertake[n] on a systemic basis, taking into account the

discovery potential of evidence it routinely collects or captures (whether on video

or by other means) and the steps needed to preserve it[,]” so that the government is

in a position to disclose all that the defense is reasonably expected to request. Id.

at 1017; see also id. at 1016–18 (explaining that, once the assessment is made that




      20
          In Koonce, the court rejected the government’s argument that its “duty to
preserve [wa]s limited to evidence expected to play a significant role in the
suspect’s defense or that presented an exculpatory value that was apparent before
the evidence was destroyed.” 111 A.3d at 1016 (internal quotation marks omitted)
(explaining this “more stringent” standard applies only when analyzing the
government’s preservation obligations under the Due Process Clause).
                                                22

evidence should be preserved, it falls to “the government to establish procedures

and practices to preserve such evidence”). 21



      Applying this law to the CCTV footage first, we cannot endorse the trial

court’s general understanding that the government had no obligation under Rule 16

to preserve the video footage of Mr. Askew’s encounter with the police, which

resulted in assault charges, in the absence of a specific request for disclosure by the

defense.



      Preliminarily, to the extent the court expressed a view that there is some tier

of criminal charges to which the full force of the government’s disclosure and

antecedent preservation obligations do not apply, we cannot agree.          As noted

above, see note 6, the trial court stated that there was a “limit to what [it would]

require the prosecutors to do” with respect to discovery in misdemeanor cases. But

there is no such limit under the law. Rule 16 applies to all criminal cases. Super.



      21
         Because the government’s preservation obligation precedes and is distinct
from its production obligation, it may be that the government has a duty to
preserve evidence that it ultimately is not obligated to disclose, for example,
because evidence that reasonably appears material to the preparation of the defense
ultimately is not, either based on the way the government has chosen to prosecute
the case, or because the defense makes a Rule 16 request for production that is
narrower than anticipated.
                                              23

Ct. Crim. R. 1(a). Further, the trial court’s reliance on the perceived absence of a

practice by the police to request to view CCTV footage—which defense counsel

disputed—had no place in its analysis to determine whether the government had an

obligation under Rule 16 to preserve such video footage for the defense. See

Koonce, 111 A.3d at 1016–18 (according no significance to the government’s

interest—or lack thereof—in the video footage at issue). As discussed above, the

operative inquiry under Rule 16 is whether the requested documents or items will

be of interest to the defense and material to its preparation.



      More particularly, the court’s reliance on the fact that Mr. Askew’s earliest

discovery requests did not, like his later ones, identify with specificity this CCTV

footage was misplaced. As noted above, well before a request for production by

the defense has been made, indeed, before a case is formally charged, the

government has an obligation under Rule 16 to preserve video footage if there is a

reasonable expectation this footage will be discoverable in a future criminal case.

The government should have such a reasonable expectation, with or without an

actual inquiry from the defense, when a defendant’s alleged criminal activity has

been captured on police-operated video cameras 22—the locations of which are


      22
        The MPD’s own policies already contemplate preserving video footage of
all manner of crimes. The MPD special order regarding the “Enhanced Use of
                                                                (continued…)
                                            24

readily identifiable on the MPD’s website.23       Such footage may provide the

defense, among other things, confirmation of the strength of the government’s

case, an investigative lead to assist the defense, or grounds for impeachment at

trial. Competent counsel will want to see it. The government should expect

counsel to ask to view it.



      The government argues, however, that it had no preservation obligation with

respect to the CCTV footage in this case because it “correctly assumed” that it

(…continued)
CCTV to Combat Crime,” SO-06-12, § V.K.4 (2006), requires MPD to preserve
any CCTV footage containing evidence of a crime in accordance with its general
order regarding the “Preservation of Potentially Discoverable Material,” GO-SPT-
601.02, § V.B (2004), which in turn imposes on the MPD an obligation to preserve
“potentially discoverable material,” including “video/audio tapes” for a minimum
of three years, or, once the government initiates a criminal case, until the case is
disposed of. This order regarding preservation of CCTV footage is part of the
MPD’s broader policy to retain video footage in the various ways it may be
captured, including, more recently, by body-worn camera. Metro Police Dep’t
GO-SPT-302.13, Body-Worn Camera Program §§ V.A.4, V.H (2016) (requiring
MPD to preserve all body-worn camera footage involving, among other things,
“[a]ll contacts initiated pursuant to a law enforcement investigation,” “[a]ll stops”
including traffic stops, and all “[u]se of force situations” in all misdemeanor cases
for a minimum of three years and “indefinitely” where there is a “[p]ending
warrant,” “[p]apered case,” or “[o]ngoing criminal investigation”). These policies
manifest the MPD’s awareness of its obligation to put preservation policies into
effect, see Koonce, 111 A.3d at 1017-18, and additionally put officers on notice of
the foreseeable materiality of such video footage.
      23
               See      CCTV        –      Neighborhood-Based              Cameras,
https://mpdc.dc.gov/page/cctv-neighborhood-based-cameras
https://perma.cc/C8GK-6QDR.
                                             25

“was not material to the preparation of [Mr. Askew’s] defense.” Renewing the

argument it made in the trial court, the government asserts that because of the

positioning and capabilities of the CCTV cameras, their footage would not have

shown either “the basis for the stop” or “the struggle.” The government further

asserts that Mr. Askew “did not dispute” its proffer at trial that these events

“occurred outside of the camera’s range.” But the record does not support this

argument. Both in his written motion for sanctions and in his argument before the

court, defense counsel argued that the rotating CCTV camera would have captured

the condition of Mr. Askew’s car and the encounter between Mr. Askew and the

police. He further noted that, while he had presented a photograph to the court

showing the positioning of the camera with respect to the scene of the alleged

assault, the government had put on no evidence (as it had done in other cases he

had litigated) to support its proffer. The court’s only factual finding regarding the

rotating camera’s capabilities was that it could not have captured the car’s

taillights. We are left with unresolved, disputed issues of fact regarding whether

the camera could have shown whether the car’s headlights were on or off (which

was potentially relevant to whether there was a basis for the initial stop) and/or the

interactions between Mr. Askew and the officers. Without resolution of these

factual issues, we cannot say whether there was a Rule 16 violation, and if so

whether a sanction would or would not be warranted. Thus we “find it necessary
                                             26

to remand the record.” See Laniyan v. United States, 226 A.3d 1146, 1148, 1153

(D.C. 2020) (citing D.C. Code § 17-306 (2012 Repl.)); see, e.g. Farley v. United

States, 694 A.2d 887, 890 (D.C. 1997) (remanding the record for a hearing and

determination of whether a certain document was Brady material).



      Turning to the court’s ruling regarding the video footage at the stationhouse,

the court again relied on defense counsel’s failure to make a “specific request to

preserve” the footage “at the time,” in conjunction with its determination that

“there would have been no reason for the[] [government] to preserve it without a

specific request.” Again we disagree with the trial court’s narrow interpretation of

the government’s duty to preserve documents, photographs, videos, and other

items subject to disclosure under Rule 16.



      We addressed the government’s obligation under Rule 16 to preserve

stationhouse video footage in Koonce. We concluded:


                  [I]n the statutory and evidentiary context of
            DUI/OWI prosecutions, it takes a small, logical step to
            conclude that video that captures a suspect’s appearance,
            speech[,] or actions soon after arrest and that records
            when the suspect is being informed of his rights under
            the statute and asked to submit to [urine or blood-
            alcohol] testing will be material to the defense and must
            be preserved for disclosure.
                                            27

111 A.3d at 1017–18. Similarly, in this case it takes only “a small, logical step,”

id. at 1018, to conclude that video footage of a defendant at the stationhouse after

being arrested for APO might well contain information material to the preparation

of the defense, both to assess the government’s case and to evaluate the possibility

of raising an affirmative defense. 24 This includes but is not limited to information

about the defendant’s and the officers’ physical appearance and mobility,

demeanor, and statements (defendant’s statements are, of course, specifically

identified as an item subject to disclosure under Rule 16(a)(1)(A)–(C)), as well as

evidence of the interactions between the police and the defendant. See id. at 1018.

The “straightforward” nature of this assessment, id. at 1017, is evidenced by the

government’s longstanding post-arrest procedures followed in this case, namely to

photograph Mr. Askew and the officers at the station and to have the officers

complete use of force reports, measures which are designed to serve as a preserved

record of the same sort of information likely to be captured in footage of a

      24
          Because the duty of preservation is active even before charging decisions
are made, the duty to preserve turns on the facts of the incident and crimes the
government might reasonably charge. Here Mr. Askew was involved in an
encounter resulting in injuries to himself and the arresting officers. Although his
felony APO charges were downgraded to misdemeanors, either charge allowed for
a viable defense on the ground that his use of force was “reasonably necessary
under the circumstances” to protect himself against the officers use of excessive
force during his arrest. Nelson (Thomas) v. United States, 580 A.2d 114, 117 (D.C.
1990) (internal quotation marks omitted); see also Criminal Jury Instructions for
the District of Columbia, No. 4.114(C) (5th ed. 2019).
                                             28

defendant and involved officers at the stationhouse. 25       We thus hold that the

government’s obligation to preserve the stationhouse video footage in this case did

not turn on the existence of a request from the defense. 26



      Having determined that the government violated Rule 16 by failing to

preserve and produce video footage from the stationhouse, we turn to the question


      25
           The trial court in this case understood our previous analysis of the
government’s duty to preserve footage in Koonce to be strictly limited to the
context of circumstances reasonably leading to a DUI charge. Although we engage
in analysis specifically in the context of circumstances reasonably leading to an
APO charge here, we stress that this analysis is not limited to DUIs and APOs, but
rather to the relationship between the factual circumstances and the charges
reasonably likely to be brought. There are undoubtedly other cases where the
defendant’s physical appearance, demeanor, statements, and interactions with law
enforcement should reasonably be anticipated to be material to the defense.
Particularly in light of the government’s recognition of the need to record and
preserve body worn camera footage on the way to and in the stationhouse, see GO-
SPT-302.13 § V.B.2.c, (requiring officers assigned to transport vehicles and police
stations to wear body-worn cameras and abide by the same retention practices for
that footage), we expect the government will recognize those situations. But if it
does not, we are confident any issues will be litigated in future cases.
      26
           Notwithstanding the government’s argument that it did not violate Rule
16 “even assuming such [stationhouse] video [of Mr. Askew] existed at one point,”
there is no disputed issue of fact regarding the stationhouse footage. The
government had the opportunity at trial to contest the existence of video footage
sought by the defense. It did so regarding the CCTV footage, as discussed above,
but it did not with respect to the stationhouse footage. While professing a lack of
“aware[ness]” of such footage in its opposition to Mr. Askew’s motion for
sanctions, it never indicated, either in that pleading or in court, that it had
undertaken any inquiry regarding this footage, much less made any sort of proffer
to dispute counsel’s representation that such footage existed.
                                             29

of whether the trial court’s erroneous ruling to the contrary was harmless. We

conduct our review under the test for harm set out in Kotteakos v. United States,

328 U.S. 750 (1946) (articulating the test for harm for nonconstitutional errors),

and examine whether we can “say[] with fair assurance” that the error did not

substantially sway the judgment. Smith v. United States, 169 A.3d 887, 891 & n.8

(D.C. 2017) (quoting Kotteakos, 328 U.S. at 765). But we are unable to complete

this analysis at this juncture because “the standard for reversal where more than

one error is asserted on appeal is whether the cumulative impact of the errors

substantially influenced the [] verdict.” Sims v. United States, 213 A.3d 1260,

1272 (D.C. 2019) (quoting Smith v. United States, 26 A.3d 248, 264 (D.C. 2011).

Given our need to remand the record regarding the government’s duty to preserve

the CCTV footage, assessment of harm from its failure to preserve stationhouse

footage is premature. 27 See Jackson v. United States, 768 A.2d 580, 584 (D.C.

2001) (“[W]here [the] court of appeals has an incomplete record upon which to

assess harmlessness, remand is appropriate for [the] trial court to make the proper



      27
           Although we are at this time unable to address whether reversal is
required, as in Koonce we once again caution that, because the government is now
“on notice of its obligations with respect to foreseeably discoverable items of
evidence” in its possession, “a lack of willfulness [in their destruction] ceases to be
a defense to [a trial court’s] sanction for failure to preserve discoverable evidence”
when sanctions less than dismissal are requested. 111 A.3d at 1019 (internal
quotation marks omitted).
                                            30

evidentiary record and return the matter to this court.”) (internal quotation marks

omitted).



        2. Police and Fire Clinic Medical Records



      Mr. Askew argues the trial court erred when it did not sanction the

government for its failure to turn over Police and Fire Clinic records for the

officers who participated in his arrest. The court stated that it did not know any

case law holding that Police and Fire Clinic records were in the possession of the

MPD (and thus the prosecution) and subject to disclosure under Rule 16. 28 It

appears this court has never considered the status of the Police and Fire Clinic

records;29 we conclude that we need not resolve this question in this case. The


      28
          See Weems, 191 A.3d at 301–02 (explaining that evidence subject to Rule
16 disclosure includes evidence in the government’s (1) “actual possession,” i.e.,
“direct physical control”; (2) “custody,” i.e., “temporary[] care”; or (3) “control,”
i.e., when it has the “the legal right and ability to obtain the item from the other
entity upon demand” (internal quotation marks omitted)); Nelson (Cornelius) v.
United States, 649 A.2d 301, 308 (D.C. 1994) (explaining that Rule 16 does not
obligate the government “to obtain [evidence] from private sources [that] it does
not intend to use for trial”).
      29
           Thus, we have not assessed the import of the MPD general order
regarding medical services, GO-PER-100.11 §§ V.A.4.a, V.E (2006), alluded to by
Officer Jimenez, which requires MPD officers to complete a PD Form 42 (Injury
or Illness Report) and report to the Police and Fire Clinic whenever an injury or
illness occurs while on duty.
                                            31

only sanction the defense requested at trial in regards to the Police and Fire Clinic

records was dismissal of the charges against him, and Mr. Askew makes no request

for lesser sanctions on appeal.    Because Mr. Askew never argued, much less

demonstrated, that these records were withheld in bad faith, dismissal is neither

justified nor required.   See Weems, 191 A.3d 306–07.         Thus, even assuming

without deciding that the records were discoverable under Rule 16, the trial court

did not abuse its discretion in declining to impose the requested sanction.



                                     III. Conclusion



      For the foregoing reasons, we affirm the judgment of the trial court only in

part and we remand the record for a hearing and determination on whether the

rotating CCTV camera could in fact have captured the condition of the car that

formed the basis for the stop and/or the interaction between the officers and Mr.

Askew outside the car. “After the judge issues new findings in accordance with

this opinion, the record thus supplemented shall be returned to this court for

decision.” Laniyan, 226 A.3d at 1153.



                                                           So ordered.
