United States v. Anderson ( 2016 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
v. Criminal No. 15-166 (CKK)
RONNIE ANDERSON,
Defendant.
MEMORANDUM OPINION
(March 11, 2016)
Presently before the Court is the Defendant’s [10] Motion to Compel Government to
Preserve Evidence, the Government’s [14] Opposition to Defendant’s Motion to Prevent the
Government from Consuming Biological Material in its Entirety, and the Defendant’s [24] Reply
to Government’s Opposition to Defendant’s Motion to Compel Government to Preserve Evidence.
At issue are two sets of swabs, one set of wet and dry swabs recovered from a firearm and one set
of wet and dry swabs recovered from the firearm’s magazine, that the Government intends to test
for touch DNA. Anderson argues that the Government should be required to prove that
consumption of the entire sample is necessary to produce scientifically reliable results. In the
event that the Government does not make this showing, Anderson requests that swabs be split in
half prior to the extraction of the DNA and that one half be reserved for potential defense use. The
Government opposes this request, arguing that there is no legal support for Anderson’s position
with respect to the swabs and that Anderson’s proposed protocol is not scientifically advisable.
For the reasons described herein, the Court shall DENY Anderson’s Motion and permit the
Government to extract DNA from the swabs at issue without first splitting them in half. Any
remaining extract not consumed during testing shall be provided to the defense.
I. BACKGROUND
On November 13, 2015, Anderson was charged by indictment with one count of unlawful
possession of a firearm and ammunition by a person convicted of crimes punishable by
imprisonment for a term exceeding one year in violation of 18 U.S.C. § 922(g)(1). Anderson’s
charge is based on his alleged possession of a Ruger P95 9mm semi-automatic pistol and 9mm
ammunition which were recovered from under a bed in an apartment on Elvans Road, S.E.,
Washington, D.C., on October 3, 2015. On December 1, 2015, the Government filed a [4] Motion
to Compel DNA Sample, requesting that the Court order Anderson to provide a sample of his DNA
to compare to any DNA recovered from the firearm and the firearm’s magazine that Anderson is
alleged to have possessed. On that same day, Anderson filed an [5] Opposition to Government’s
Motion to Compel DNA Sample, arguing that the Motion should be denied, in part, because there
was no DNA sample to compare to Anderson’s DNA at that time because the Government had not
commenced testing the items in evidence. At the status hearing held on December 2, 2015, the
Court denied without prejudice the Government’s Motion because the Government had not yet
determined if there was DNA evidence present on the firearm and magazine such that a sample
could be compared to Anderson’s DNA profile. The Court indicated that the Motion may be re-
filed if the Government is able to recover DNA from the firearm and magazine in evidence.
In a letter dated December 1, 2015, the Government notified defense counsel that the
United States Attorney’s Office intended to authorize the consumption of all the swabs from the
firearm and magazine in question. The Government provided an excerpt from the letter which
indicated:
The evidence in this case will be sent for testing at one of the following laboratories:
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Signature Science, Bode-Cellmark, the Verdugo Regional Crime Laboratory, or
Sorenson Forensics. Each of these laboratories has been accredited by the American
Society of Crime Laboratory Directors/Laboratory Accreditation Board
(ASCLD/LAB). When testing evidence of this nature, the laboratory typically has
DNA “extract” left over that will be preserved in the event the defense decides to
request testing. It is the laboratory’s policy to preserve all DNA extracts that remain
after the swabs have been consumed during testing. Furthermore, any remaining
extract will be made available for the defense if your client requests and the Court,
in turn, orders such testing.
Although the chance of complete consumption of the items identified above is
remote – given the likelihood that there will be extract left over – the law permits
the laboratory to go forward with testing at this time given that there is no way of
knowing the incriminating or exculpating nature of any DNA profile(s) recovered
from the evidence until after the DNA testing has been completed and reported by
the laboratory. The United States Attorney’s Office will authorize the laboratory to
proceed with testing on the above item(s) unless you file a motion with the Court
opposing consumption on or before December 3, 2015.
Govt.’s Opp’n at 2 (quoting Govt.’s Letter to Def. Counsel dated Dec. 1, 2015).
On December 18, 2015, Anderson filed his instant [10] Motion to Compel Government to
Preserve Evidence, requesting that the Court compel the Government to preserve a portion of the
biological evidence collected from the firearm and the magazine so that Anderson may
independently test it if he deems such a course of action necessary. On January 8, 2016, the
Government filed its [14] Opposition to the Motion, arguing that the consumptive DNA testing, if
necessary to obtain a complete DNA profile, does not violate Anderson’s constitutional or
discovery rights. On February 18, 2016, Defendant filed his [24] Reply indicating, in part, that
the parties have been unable to resolve this issue. 1 As such, the Court must determine whether or
1
The Court notes that it vacated the original due date for the Reply brief in order to resolve
Anderson’s request that he be appointed new counsel. See Min. Order (Jan. 8, 2016). On January
21, 2016, the Court appointed Anderson new defense counsel and set a revised briefing schedule.
See Min. Order (Jan. 21, 2016). Anderson indicated that he had no issue with the revised schedule
at the hearing. See id.
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not it is appropriate to require the Government to follow Anderson’s proposed protocol for testing
the swabs recovered from the firearm and the magazine. As described in Anderson’s Reply, he
proposes that the laboratory cut each swab in half and perform extraction and quantification on
half of each swab. Def.’s Reply at 6. If there is sufficient DNA to proceed with typing from half
the swabs, then the laboratory would proceed with typing and transfer the second half of the swabs
to an independent laboratory chosen by the defense. Id. If there is insufficient DNA to proceed
with typing from the first half of the swabs, then the laboratory may extract DNA from the second
half of the swabs and combine the extracts from both halves. Id. The Government proposes
extracting all the DNA from each of the swabs and providing any remaining extract not consumed
during testing to the defense. Govt.’s Opp’n at 2 (quoting Govt.’s Letter to Def. Counsel dated
Dec. 1, 2015).
II. DISCUSSION
The issue before the Court is whether it should require the Government to split the one set
of wet and dry swabs recovered from the firearm and the one set of wet and dry swabs recovered
from the magazine in half prior to extraction and, if the lab determines that one half of the swab
contains enough DNA for testing, provide the other half of the swab to the defense. Anderson
argues that the proposed swab splitting approach is necessary to preserve his due process and Fifth
Amendment rights, as well as his discovery rights pursuant to Federal Rule of Criminal Procedure
16. Indeed, Anderson asserts that based on these rights, the Government is required to preserve a
portion of the DNA sample so that Anderson may independently test it if he deems such testing
necessary for his defense, unless the Government can demonstrate that consumption of the entire
sample is necessary to produce scientifically reliable results. The Government argues that there is
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no legal basis for proceeding in this manner and that Anderson’s proposal for testing is not
scientifically advisable. The Court shall first discuss the legal basis for Anderson’s request that
the Government be compelled to adhere to his proposed protocol and then the Court shall discuss
the scientific advisability of each party’s proposed protocol. For the reasons described herein, the
Court concludes that it shall not require the pre-extraction splitting of the swabs as requested by
Anderson.
Anderson asserts that his due process and Fifth Amendment rights provide that the
Government has a duty to protect and disclose evidence material to his defense. Indeed, due
process provides that “[a] defendant has a constitutionally protected privilege to request and obtain
from the prosecution evidence that is either material to the guilt of the defendant or relevant to the
punishment to be imposed.” California v. Trombetta, 467 U.S. 479, 485 (1984) (citing Brady v.
Maryland, 373 U.S. 83, 87 (1963)). As the Government acknowledges in its opposition, its
obligation encompasses a duty to preserve “material” evidence. Govt.’s Opp’n at 3. In order to
trigger the duty to preserve based on the materiality of the evidence at issue, the Supreme Court
of the United States has explained that the evidence “must both possess an exculpatory value that
was apparent before the evidence was destroyed, and be of such a nature that the defendant would
be unable to obtain comparable evidence by other reasonably available means.” Trombetta, 467
U.S. at 489. Here, the parties dispute whether the swabs recovered from the firearm and magazine
are “material” such that the Government has a duty to preserve them in the manner requested by
Anderson.
Indeed, the Government argues that the swabs are not material because the untested DNA
sample has no apparent exculpatory value at this time. Rather, the parties will only know whether
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the swabs are exculpatory after they are tested. Relying on the United States Court of Appeals for
the Fifth Circuit’s opinion in Garrett v. Lynaugh, 842 F.2d 113 (5th Cir. 1988), the Government
argues that no evidence is destroyed as prohibited under Trombetta if the entire sample is
consumed during testing considered to be necessary. See Govt.’s Opp’n at 4 (citing Garrett, 842
F.2d at 116). Moreover, the Government argues that it only violates the due process clause if it
destroys the swabs in bad faith. Govt.’s Opp’n at 5 (citing Arizona v. Youngblood, 488 U.S. 51
(1988)); see also Youngblood, 488 U.S. at 58 (“We therefore hold that unless a criminal defendant
can show bad faith on the part of the police, failure to preserve potentially useful evidence does
not constitute a denial of due process of law.”). Here, the Government asserts that the consumption
of the entire swabs, if it occurs, would be done during normal testing pursuant to established
techniques, and not in bad faith. Govt.’s Opp’n at 5.
Anderson argues that the facts of the instant action are distinguishable from the cases cited
by the Government and that the swabs at issue are material evidence. First, Anderson argues that
unlike in Garrett, he is prospectively seeking the preservation of a portion of the swabs prior to
testing. Def.’s Reply at 3. Second, Anderson argues that the exculpatory value of the evidence is
apparent because of the facts of this case. Specifically, Anderson asserts that there were other
persons present in the apartment who fled through a window immediately before the firearm was
recovered. As such, Anderson argues that the swabs may include DNA from the person who
possessed the firearm, which is evidence that would otherwise not be accessible to Anderson. Id.
at 3-4 (citing United States v. Gardner, No. 4:14–CR–61–H, 2015 WL 1951809 (E.D.N.C. Apr.
29, 2015)).
Here, the Court finds that the due process clause and the Fifth Amendment do not require
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the Government to preserve half of the swabs at issue prior to extracting any DNA evidence
because it is not clear that the swabs, in fact, are material evidence. Notably, the Government is
merely seeking to test the swabs to determine whether there is DNA present and, if so, to determine
whether any DNA present can be matched or not matched to Anderson’s DNA profile. Indeed, as
the Government argues, at this time the swabs are neither exculpatory or inculpatory evidence.
Moreover, the fact that Anderson is prospectively seeking the preservation of the swabs does not
alter this analysis. As such, the Court concludes that the Government is not required to follow the
protocol as requested by Anderson for the testing of the swabs based on Anderson’s due process
or Fifth Amendment rights.
Anderson also argues that the Government has a duty to preserve half of the swabs prior to
extracting DNA pursuant to Federal Rule of Criminal Procedure 16. Pursuant to Rule 16(a)(1)(E),
upon a defendant’s request, the government must permit the defense to inspect and copy tangible
objects or copies or portions of the tangible objects, if the object is within the government’s
possession, custody, or control, and: (1) the item is material to preparing the defense; (2) the
government intends to use the item in its case-in-chief at trial; or (3) the item was obtained from
or belongs to the defendant. Anderson argues that Rule 16 imposes a duty on the Government to
preserve portions of the swabs so that he may independently test them. Anderson argues that the
complete consumption of the swabs would foreclose his fundamental right to have his expert
independently test them and, thus, complete consumption is only appropriate if the Government
shows that it is necessary to produce scientifically reliable results. Def.’s Reply at 4. The
Government argues that the plain language of Rule 16 does not limit the protocols that a laboratory
must use when testing evidence. Moreover, the Government argues that Anderson may still have
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an expert independently compare the DNA profile created from the swabs with Anderson’s DNA
profile and cross-examine the expert who conducted the test for the Government.
The Court agrees that the plain language of Rule 16 does not require that the Government
conduct its testing in the manner proposed by Anderson. See also Fed. R. Crim. Pro. 16(a)(1)(F)
(setting out the Government’s discovery obligations for reports of scientific tests or experiments).
As discussed above, it is unclear whether the swabs are material to preparing Anderson’s defense,
whether the Government intends to use any DNA evidence during its case-in-chief, or if any DNA
is obtained, whether it is from or belongs to Anderson. It is likely that the results of any testing
will dictate the answers to these open questions.
The Court emphasizes in reaching these findings that it has relied on the Government’s
proposal with respect to the swabs at issue. The Government is simply seeking to authorize the
laboratory to consume the entire sample should the laboratory deem it necessary. Indeed, as the
Government indicates in its letter to the defense, it is the laboratory’s policy to preserve all DNA
extracts that remain after the swabs have been consumed and any remaining extract will be made
available to the defense if it is requested by Anderson. See Govt.’s Opp’n at 2. The Government
indicates that the chance of complete consumption is “remote” given the “likelihood” that extract
will be leftover. Id. As such, the Court does not find that the Government’s proposed protocol
violates Anderson’s due process or Fifth Amendment rights, or violates the Government’s
discovery obligations under Rule 16.
Given that the Court has found that the Government’s proposed course of testing does not
violate Anderson’s due process rights or the Government’s own discovery obligations under the
Federal Rules of Criminal Procedure, the Court next turns to the scientific advisability of the
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parties’ proposed protocols for testing the swabs. Here, each party purports that the other party’s
proposed protocol is not scientifically advisable. Notably, however, neither party appears to argue
that the other’s approach is not scientifically feasible. For the reasons described below, the Court
finds that the Government has submitted more evidence to establish that the scientific advisability
of its proposed protocol and, as such, the Court concludes that Anderson’s motion should be
denied.
Each of the parties submitted affidavits created for other court cases in support of their
proposed protocols in the instant action. 2 The Government submitted the following exhibits:
Affidavit of Bruce Budowle, Executive Director of the Institute of Investigative Genetics, Govt.’s
Opp’n, Ex. 2, ECF No. [14-2]; Affidavit of Amy Jeanguenat, Director of Forensic Laboratory
Operations at Bode Cellmark Forensics, Id., Ex. 4, ECF No. [14-4]; Affidavit of Lisa M. Brewer,
Laboratory Director and DNA Technical Leader for the Verdugo Regional Crime Laboratory, Id.,
Ex. 5, ECF No. [14-5]; Affidavit of Steve Renteria, DNA Technical Leader and CODIS
Administrator for the Los Angeles County Sheriff’s Department, Id., Ex. 6, ECF No. [14-6]; and
Affidavit of Elizabeth Thompson, DNA Laboratory Director of the Orange County Crime
Laboratory, Id., Ex. 7, ECF No. [14-7]. Bode Cellmark, Verdugo Regional Crime Laboratory, and
2
The parties also submitted Orders and Opinions from other judges addressing the issue
of requiring the Government to split swabs prior to DNA extraction. Anderson provided Orders
issued by Associate Judges Yvonne Williams and J. Michael Ryan of the Superior Court of the
District of Columbia on September 9, 2015, and February 14, 2014, respectively. See Def.’s Mot.,
Exs. 1 & 2, ECF Nos. [10-1] & [10-2]. The Government provided an Order issued by District
Judge James E. Boasberg, another Judge in this District Court, on January 5, 2016, and an Order
issued by Senior Judge A. Franklin Burgess, Jr., of the Superior Court of the District of Columbia,
on April 11, 2014. See Govt.’s Opp’n, Exs. 1 & 3, ECF Nos. [14-1] & [14-3]. The Government
also cited to orders of 17 other D.C. Superior Court judges in support of their opposition to
Anderson’s proposed protocol. See Govt.’s Opp’n at 7.
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the Los Angeles County Sheriff’s Department Laboratory are ASCLD/LAB-International
accredited laboratories. Jeanguenat Decl. ¶ 2; Brewer Decl. ¶ 2; Renteria Decl. ¶ 8.
Anderson submitted an Affidavit of Marc Scott Taylor, President of Technical Associates,
Inc., Def.’s Reply, Ex. A, ECF No. [24-1], a laboratory not accredited by ASCLD/LAB, in support
of his request, Budowle Decl. ¶ 16; Taylor Decl. ¶ 19. Anderson also submitted transcript of
testimony provided by Amy Jeanguenat of Bode Cellmark Forensics during a proceeding in the
Superior Court of the District of Columbia on September 11, 2015. Def.’s Reply, Ex. B, ECF No.
[24-2].
Anderson argues that the pre-extraction splitting of the swabs enhances the reliability of
the DNA by limiting the potential for contamination. Def.’s Reply at 8. Anderson cites to two
publications in support of his argument: National Academy of Sciences, National Research
Council, The Evaluation of Forensic DNA Evidence (1996) (NRC II), and the American Bar
Association, Criminal Justice Section, ABA Standards for Criminal Justice: DNA Evidence (3d ed.
2007) (ABA Standards). Anderson purports that the NRC II recommends dividing evidence items
into two or more parts before DNA is extracted. Moreover, Anderson argues that the ABA
Standards indicate that a court should permit the defense to inspect and test DNA evidence in the
prosecutor’s possession. Anderson argues that both of these publications support splitting the
swabs prior to extraction so that the second half of the swab may be tested in the event that the
initial sample is compromised. Def.’s Mot. at 2; Def.’s Reply at 6, 9.
The Government argues that its proposed method, extracting all of the DNA at the same
time for each swab and preserving any leftover extract for the defense, is the better method because
it improves the chances of obtaining interpretable results by ensuring that the most DNA possible
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is obtained. Govt.’s Opp’n at 8-11. The Government asserts that its approach is not contrary to
the NRC II recommendation that “[e]vidence items should be divided into two or more parts at the
earliest possible time, and one or more parts retained for possible repeat testing.” Id. at 12 (quoting
NRC II at 87). The Government argues that this recommendation is qualified by the preceding
sentence: “Whenever feasible, investigative agencies and testing laboratories should provide for
repeating testing.” Id. (emphasis added). Indeed, the Government asserts that the “whenever
feasible” language is relevant to the issue before this Court because in the case of testing touch
DNA, it is not scientifically advisable to split the sample before extraction. See Govt.’s Opp’n at
13-14 (quoting Budowle Declaration, Renteria Declaration, and Thompson Declaration). The
Court notes that the ABA Standards similarly indicate that a portion of DNA evidence should be
preserved when possible or a portion of the any extract should be preserved when possible. See
Def.’s Reply at 6 (citing ABA Standards, DNA Evidence 16-3.4(a)). With respect to Anderson’s
request, the Government asserts that splitting touch DNA samples is scientifically inadvisable
because of the low quantity of DNA in such samples. Govt.’s Opp’n at 12.
The parties appear to agree that there is no way to determine how much touch DNA is
present on a particular swab until extraction. While both parties have presented evidence that their
respective approaches are scientifically feasible, the Court is persuaded that the Government’s
proposed protocol is the scientifically advisable approach that is most likely to render interpretable
results. Indeed, the Government has submitted affidavits from five professionals in the field
supporting the Government’s proposed protocol and advising against the approach advanced by
Anderson. In contrast, Anderson has provided one affidavit from President of a laboratory that has
not sought accreditation, arguing that Anderson’s proposed protocol would reduce the risk of
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contamination of the entire sample.
The Court first notes that to the extent that an issue with contamination arises in this case,
it does not appear that any contamination would result in a false positive result that would inculpate
Anderson. As pointed out in the Budowle declaration: “The most serious contamination to
consider is DNA from the reference sample of a suspect . . . contaminates the evidence.” Budowle
Decl. ¶ 6. Here, as discussed above, it does not appear that the Government has a reference sample
from Anderson at this time and the Court indicated that it will not require that Anderson submit a
sample until it is known whether there is a DNA profile recovered from the firearm and/or
magazine with which to compare it. As such, while there is a general risk of contamination in this
case as in any case, the risk is not that the swabs at issue would be contaminated with a sample of
Anderson’s DNA during testing. Moreover, the Court notes that safeguards are in place to
minimize the general risks of contamination in DNA testing and to detect any instances of
contamination. Budowle Decl. ¶¶ 5, 14.
In contrast, the risk of following Anderson’s proposed protocol is set forth by Amy
Jeanguenat in her affidavit:
It is not the routine practice for Bode Cellmark to test ½ of an item, evaluate the
amount of DNA present and then go back to consume the remainder or the touch
sample should it be determined that insufficient DNA is available. This is not a
scientifically advisable policy for samples expected to produce low levels of DNA
as it is known that DNA is lost during each stage of testing. This phenomenon has
been studied primarily with DNA extraction . . . but may also occur during the
sample manipulator/cutting and concentration steps. While it is unknown exactly
how much DNA is lost, by essentially testing the sample twice, you risk losing
twice as much DNA than would have been lost had the entire sample been
consumed at the outset. Since it is not clear whether a percentage of DNA or a
particular amount of DNA . . . is lost, this is a particularly risky policy for samples
that are expected to have low levels of DNA.
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Jeanguenat Decl. ¶ 12; see also Budowle Decl. ¶ 12 (“Sample splitting can consume more DNA
prior to testing which can reduce the success of obtaining a reliable DNA typing result.”).
Anderson asserts in his reply that after hearing testimony from Jeanguenat during a hearing, a D.C.
Superior Court judge ordered the swab-splitting approach advocated by the defense. See Def.’s
Reply at 7-8.
Based on the evidence before the Court, it appears that the proposed protocol advocated by
the Government is the approach utilized by ASCLD/LAB-International accredited laboratories as
the most scientifically advisable protocol for retrieving interpretable results from a touch DNA
sample. As such, the Court shall not require the Government to split the two sets of swabs
recovered from the firearm and the magazine prior to extracting DNA as requested by Anderson.
The Court notes that this ruling does not foreclose Anderson from presenting a defense, if he deems
one necessary, to any DNA evidence resulting from this testing. Indeed, the extract will only be
consumed in its entirety if it is deemed necessary by the laboratory to obtain interpretable results.
See Jeanguenat Decl. ¶ 10 (“Consumption is always a last resort . . . .”). Anderson in his briefing,
by proposing that the second half of the swabs be used by the Government if there is insufficient
DNA extract from the first half of the swabs, has acknowledged the possibility that the
consumption of all the DNA extract obtained from the swabs may be necessary in order to produce
scientifically reliable results. See Budowle Decl. ¶ 5. To the extent that there is DNA extract left,
it shall be preserved for defense use. Moreover, Anderson may have an independent expert review
the government laboratory’s work and may cross-examine any experts involved in the testing. 3
3
If requested by the defense, their expert should be allowed to observe, not participate, in
the testing.
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III. CONCLUSION
For the foregoing reasons, the Court DENIES the Defendant’s [10] Motion to Compel
Government to Preserve Evidence. The Court shall not require the Government to split in half the
two sets of swabs, one set of wet and dry swabs recovered from a firearm and one set of wet and
dry swabs recovered from the firearm’s magazine, prior to testing them. As such, the Government
is permitted to authorize the laboratory to consume the entire sample from these swabs should the
laboratory deem it necessary to obtain scientifically reliable results. To the extent that DNA extract
is left over after testing, it shall be preserved for possible defense use.
/s/
COLLEEN KOLLAR-KOTELLY
UNITED STATES DISTRICT JUDGE
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