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U.S. v. MORROW

June 9, 2005.

UNITED STATES OF AMERICA,
v.
MIQUEL MORROW, et al., Defendants.



The opinion of the court was delivered by: COLLEEN KOTELLY, District Judge

MEMORANDUM OPINION

On April 25, 2005, this Court issued a Memorandum Opinion and Order addressing preliminary issues relating to the Government's planned use of certain DeoxyriboNucleic Acid ("DNA") evidence at trial. See United States v. Morrow, Crim. No. 04-355, 2005 U.S. Dist. LEXIS 8327 (D.D.C. Apr. 25, 2005). Specifically, the Court concluded that (1) PCR/STR DNA testing, the laboratory typing process used in this case by the FBI Laboratory to "match" Defendants to specific DNA samples collected, is — as a general rule — in accordance with the Supreme Court's guidelines set forth in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and may lead to admissible DNA evidence at trial; and (2) even DNA evidence with relatively low statistical significance may be admitted as probative evidence, provided that certain safeguards are afforded. Morrow, 2005 U.S. Dist. LEXIS 8327, at *52.

However, the Court emphasized that its ruling was limited in many respects, noting that "the Court has not determined that all of the Government's DNA evidence may now be introduced into evidence." Id. at *53. Rather, the Court observed that "Defendants have not yet received their own DNA expert reports, have not contested the FBI's protocols, have not argued that the protocols were not followed, and have not singled out any laboratory errors that may rise to sufficient significance that exclusion of DNA evidence is warranted." Id. Moreover, the Court itself questioned the probative value of some of the Government's planned DNA evidence — specifically, DNA evidence that the Government identified as showing a 1:1 random match probability in all populations. Id. Accordingly, the Court ordered "that, upon receipt of their own DNA experts' reports, Defendants notify the Court as to precisely what challenges, if any, they shall make to the admissibility of the Government's DNA evidence so that the Court can determine what issues, if any, will require a hearing before presentation of that evidence to the jury." Id. at *53-*54.

  During the time that has passed since the Court's April 25, 2005 Memorandum Opinion and Order, several developments have created the need for the Court to address the issues left outstanding by its previous Order and to resolve other related matters. The Court, in this memorandum opinion, will address: (1) recent events that have altered the scope of the Government's DNA evidence put before the jury; and (2) Defendant Aaron Perkins' Motion to Exclude Contaminated DNA Samples Obtained From the Brinkley Road Search ("Def. Perkins' Mot."), with the Government's subsequent Opposition. In addition to tying up the previous Opinion's loose ends, the Court, upon an analysis of the parties' filings, the relevant case law, and the entire record herein, concludes that Defendant Perkins' Motion to Exclude shall be denied. I: DISCUSSION

  The Court shall commence its analysis by focusing initially on recent developments regarding the DNA evidence at issue in this trial, including events that have altered the predicted scope of the DNA evidence put before the jury and have resolved — in part — the issues left outstanding by the Court's previous Opinion. The Court shall then turn its attention to Defendant Perkins' Motion to Exclude based on certain allegations of evidence contamination that are alleged to have occurred during the collection of evidence from his apartment at Brinkley Road.

  A. Recent Developments

  The Court's April 25, 2005 Memorandum Opinion and Order dealt with two specific issues: (1) whether the PCR/STR DNA process employed by the Government satisfied the principles inherent in Daubert; and (2) whether DNA evidence resulting in a relatively low level of statistical significance may still be admissible under both Daubert and the strictures inherent in Federal Rule of Evidence 403. Importantly, the Court answered both questions with a qualified "yes" — i.e., the PCR/STR DNA typing process and resulting matches of low levels of statistical probability were both admissible, "contingent upon a showing by the Government that the techniques, methods, and practices used in the testing in this case, as well as the expert's qualifications, meet with the generally accepted and established protocols." Morrow, 2005 U.S. Dist. LEXIS 8327 at *30-*31.

  Several important developments have tied together the loose ends created by the Court's contingent, preliminary ruling of April 25, 2005. First, although the Court's ruling specifically authorized the introduction of DNA evidence with relatively low levels of match probability significance, e.g., evidence showing a 1:12 likelihood of a random match as compared to evidence showing a 1:16 billion likelihood of a random match, id. at *41-*43, the Government agreed not to introduce on direct testimony through its DNA expert those instances in which the random match probability showed only that "a specific defendant could not be excluded as a potential minor contributor." See 5/25/05 Tr. at 5836:22-5837:17, 5846:3-25. When presented with this offer, the Court ordered that the Government share with defense counsel which DNA samples and random match probabilities it would not bring out through its expert on direct examination. Id. at 5838:1-4. Therefore, the DNA evidence presented to the jury on direct in this case revolved around samples with a high statistical significance.*fn1 For instance, the Government presented various DNA samples where the probability of selecting an unrelated individual at random having the same STR profile as the contributor detected was 1:16 billion in the African-American population, see 5/26/05 Tr. at 5221:14-20, 1:110 million in the African-American population, id. at 5223:1-7, and 1:4.7 billion in the African-American population, id. at 5224:4-10. However, the Government did not introduce DNA evidence where the probabilities of selecting an unrelated individual were 1:12, 1:7, 1:6, 1:3, or 1:1, as Defendants had previously feared and anticipated. See Morrow, 2005 U.S. Dist. LEXIS 8327, at *9-*10. As such, one section of the Court's earlier ruling did not come into play in practice. See id. at *33-*43.*fn2 Second, and more importantly, Defendants — with one limited exception — chose not to challenge the Government's DNA techniques, methods, and practices used in the testing in this case — even after they received reports from their own DNA experts. See 5/25/05 Tr. at 5829:14-5835:13. Defendants also decided not to object to having Ms. Heather Seubert, who is currently employed as a DNA examiner at the Federal Bureau of Investigation laboratory within the DNA analysis unit of the FBI lab, located in Quantico, Virginia, qualified as a DNA expert for the Government. See 5/26/05 Tr. at 5135:15-5141:20. Rather, Defendants primarily resorted to cross-examination techniques in an attempt to undermine the weight of the DNA evidence presented by Ms. Seubert, not its admissibility.

  However, Defendant Aaron Perkins did challenge the admissibility of a limited number of allegedly contaminated DNA samples. See Def. Perkins' Mot.; Def. Perkins' Revised Mot. A discussion of the issues underlying Defendant Perkins' motion is necessary in order to definitively resolve all DNA-related issues in this case.

  B. Defendant Perkins' Motion to Exclude

  1. Background

  Prior to the Government's introduction of its DNA expert, Ms. Seubert, Defendant Aaron Perkins, on May 25, 2005, filed a Motion to Exclude Contaminated DNA Samples Obtained From the Brinkley Road Search. When alerted as to the existence of this newly-filed motion, the Court held a brief discussion with counsel for Defendant Perkins and the Government on the morning of May 25, 2005, and then set out a briefing schedule for supplemental filings. See 5/25/05 Tr. at 5841:7-5853:9. Defendant Perkins then filed a Revised Motion to Exclude, and the Government responded with a subsequent Opposition. In his Revised Motion, Defendant Perkins attached a report created by his DNA expert, Dr. Ronald S. Ostrowski, in support of his argument in favor of exclusion. See Def. Perkins' Revised Mot., Attach. at 1-3.

  Importantly, Defendant Perkins does "not question the use of PCR/STR typing or the probative value of DNA evidence which is only of `a relatively low level of statistical relevance,'" Def. Perkins' Revised Mot. at 2 — the chief concerns of the Court's April 25, 2005 Memorandum Opinion and Order. Instead, Defendant Perkins notes that FBI Special Agent Michael McCoy admitted, upon cross-examination by Defendant Palmer's counsel, Mr. Atiq Ahmed, that "certain pieces of evidence from Mr. Perkins' apartment were placed on a sheet from Mr. Perkins' bed during the search" in order to be photographed prior to collection. Id. at 1. According to Defendant Perkins, "[p]lacing the evidence on the bed sheet was done in violation of generally accepted forensic protocols and FBI forensic protocols." Id. Based on this alleged contamination, Defendant Perkins contends that "once the evidence in question was wrapped in Mr. Perkins' bed sheet and thus contaminated by Mr. Perkins' DNA, the probative value of said evidence was vitiated." Id. at 2. As such, Defendant Perkins stresses two important points: (1) "[c]ontamination of the evidence by Mr. Perkins' DNA ensures that it is now, as a logical and scientific matter, impossible to exclude Mr. Perkins as a possible contributor," id. (emphasis in original); and (2) because "[t]here is no probative value to DNA contamination," the evidence in question must be excluded from admission, id. In support of his argument, Defendant Perkins cites two cases, State v. Scott, 33 S.W.3d 746, 758-59 (Tenn. 2000), and State v. Morel, 676 A.2d 1347, 1356 (R.I. 1996), and one article, John E. Smialek, The Microscopic Slide: A Potential DNA Reservoir, FBI Law Enforcement Bull. 18, 19 (Nov. 2000), that "have stepped up to firmly address the seriousness of the contamination issue." Def. Perkins' Revised Mot. at 2. Moreover, Defendant's DNA expert, Dr. Ostrowski, identifies several FBI protocols that were allegedly violated in the collection of this evidence. See id., Attach. at 1-3. According to Dr. Ostrowski, the "Special Precautions" violated by the FBI's Special Agents include commandments to "[u]se a clean cutting surface for each piece of evidence," "wear? gloves that are changed regularly," and "[u]se disposable bench paper to cover work area used to perform specimen preparation steps to prevent accumulation of amplified DNA on permanent work surfaces. . . . Diluted bleach should be used to periodically wash exposed work areas." Id., Attach. at 2. Based on the fact that certain items were placed on Mr. Perkins' bed sheet when collected, Dr. Ostrowski claims that the procedures outlined in the FBI Laboratory Protocol for handling items to be tested were "negated," thereby "rendering the items collected useless for DNA analysis." Id.

  In conclusion, Defendant Perkins suggests that the Court should take action to exclude the identified DNA evidence from consideration by the jury. In doing so, Defendant Perkins admits that the great weight of legal precedent indicates that possible contamination issues go towards the weight — rather than the admissibility — of DNA evidence and should be brought out during cross-examination. See Def. Perkins' Mot. at 1 (citing Morrow, 2005 U.S. Dist. LEXIS 8327; United States v. Trala, 162 F. Supp. 2d 336 (D.Del. 2001); United States v. Lowe, 954 F. Supp. 401 (D. Mass. 1996)). However, Defendant Perkins contends that the Court should set new legal precedent in this area and actually exclude DNA evidence based on contamination concerns for policy reasons. Essentially, Defendant Perkins focuses on incentives, arguing that "[i]f the Government is permitted to contaminate DNA evidence and then introduce it on the theory that its probative value will be addressed upon cross-examination, then there is no incentive on the part of the Federal law enforcement agents ...


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