United States District Court for the District of Columbia
June 9, 2005.
UNITED STATES OF AMERICA,
MIQUEL MORROW, et al., Defendants.
The opinion of the court was delivered by: COLLEEN KOTELLY, District Judge
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
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 to
follow their own rules and regulations." Def. Perkins' Revised
Mot. at 3. By adopting such an exclusionary rule, "[f]ederal
[c]ourts [will] affirmatively compel federal law enforcement
agents to strictly adhere to forensic protocols" and thereby
ensure proper due process. Id.
2. Problems With Defendant Perkins' Position
Three major problems exist to doom Defendant Perkins' argument
in favor of exclusion. First, and perhaps most importantly, the
items placed on the bed sheet garnered from Defendant Perkins'
bed were not linked to Defendant Perkins' DNA and were not used
to directly connect Defendant Perkins with any of the charged
crimes. See 5/2/05 Tr. at 3000:21-3035:2 (McCoy testimony).
Instead, the items placed on the bed sheet in question were
matched with DNA from defendants Carlos Aguiar and Bryan Burwell.
See Brinkley Exs. 23, 24, 26. There were jackets found in
Defendant Perkins' closet, arguably connected to bank robberies
at issue, that were ultimately matched with Defendant Perkins'
DNA; however, these jackets were not placed on the sheet at the
time of the relevant search and collection. See Brinkley Exs.
25, 34, 36.*fn3 As such, Defendant Perkins' contamination argument is without foundation:
Defendant Perkins cannot link the items on which his DNA was
found to the items placed on the bed sheet. Because of this lack
of causation, Defendant Perkins cannot maintain an argument that
contamination through the use of his bed sheet would lead to a
flawed connection between his DNA and an item of evidence.
Second, the FBI Protocols cited by Dr. Ostrowski, and
allegedly violated by the Special Agents during their collection
of the Brinkley Road evidence, relate to the laboratory analysis
of evidence, not the collection of evidence. A review of the
"Special Precautions" subsection of the FBI Laboratory's "Short
Tandem Repeat Analysis Protocol" cited by Dr. Ostrowski makes
plain his error in conflating two very different types of
protocols. For instance, on multiple occasions, these identified
precautions cite the need to "[c]hange gloves frequently. Prior
to leaving lab area, always remove gloves and wash hands."
See Def. Perkins' Revised Mot., Attach. at 2 (emphasis added).
The precautions also make reference to the fact that technicians
should "[s]tore the DNA amplification reagents in a refrigerator
separate from evidentiary samples," and that special care should
be taken when opening and touching "test tubes." Id. Finally,
along with periodically washing "exposed work areas" with "[d]iluted
bleach," technicians are also advised to "[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." Id. Given the plain reading of the provisions cited
to by Defendant Perkins' DNA expert, it is evident that the
protocols identified relate to steps that FBI Laboratory
technicians should take in the laboratory when running the
delicate PCR/STR typing process. These protocols are not,
however, guides for the collection of evidence possibly infused
with a suspect's DNA in the field. Accordingly, the protocols
referenced by Defendant Perkins are not the precautions relevant
to the alleged contamination that is the focus of his motion.
Defendant Perkins has not located these relevant field collection
protocols, nor has he established that any violation of the field
collection protocols occurred through the temporary use of his
The National Research Council, in its second major treatise on
the collection of DNA evidence, does not specifically identify
the proper steps necessary to avoid the contamination of
DNA-related evidence during collection in the field. See
generally National Research Council, The Evaluation of Forensic
DNA Evidence (1996) ("NRC II"). Instead, the NRC simply notes
that "[s]afeguards against sample mishandling in the field
include proper training of personnel involved in sample
collection (such as crime-scene personnel) and submission of
complete evidence items (rather than clippings or scrapings) to
the laboratory." Id. at 81.*fn4 The NRC emphasizes that
"[g]iven the great individuating potential of DNA evidence and
the relative ease with which it can be mishandled or manipulated
by the careless or the unscrupulous, the integrity of the chain of custody is of paramount importance." Id. at 82.
Having established the chain of custody in this case, the
Government still must guard against the kind of "inadvertent
contamination" identified by Defendant Perkins. Id. at 83.
According to the NRC, "[t]he best safeguard against inadvertent
contamination is to have rigorous procedures for sample-handling
from field to laboratory. Particular attention should be given to
keeping evidence samples separated from reference samples." Id.
As an increased check against inadvertent contamination, the NRC
focuses on three methods of reducing possible error: (1)
"background control testing," where samples collected from areas
adjacent to the evidence sites can be tested to determine whether
background contamination is present; (2) testing for multiple
loci to increase the chances of differentiating between
contaminant and the true sources of a sample, while at the same
time using knowledge of the genetic types of people who might
contribute contaminating material to assess the possibility of
contamination from those people; and (3) redundancy in testing,
i.e., retesting material to provide a consistency check, as it is
unlikely that multiple samples would all be contaminated in the
same way. Id.
Based on the generalized wording of the NRC's suggestions, it
is not at all clear that the Government's collection of evidence
from Defendant Perkins' Brinkley Road residence, or its use of a
bed sheet on which to temporarily place certain items,
contravened any of the NRC's cautionary admonishments. Moreover,
Defendant Perkins has identified no FBI field protocols that were
violated. Rather, the only protocols mentioned by Defendant
Perkins were not relevant to the controversy at hand. Simply,
Defendant Perkins has failed to show (1) that any contamination
affected him and wrongfully linked him to the evidence set out on
the bed sheet, and (2) any violation of generally accepted or
FBI-specific protocols in the field collection of his DNA-related evidence. Given these failings, Defendant Perkins'
argument for exclusion appears to be without merit.
Third, and finally, the great weight of previous precedent
indicates that crossexamination, not exclusion, is the proper
province for a contamination inquiry. Indeed, the two cases cited
by Defendant Perkins, State v. Scott and State v. Morel, do
not stand for the proposition that DNA evidence should be
precluded due to the alleged contamination of a sample. The
language Defendant Perkins cites from State v. Scott,
33 S.W.3d 746, 757 (Tenn. 2000), relates to the shortcomings of
mitochondrial DNA ("mtDNA") analysis, compared with analysis of
nuclear DNA, and the need to be more careful as to issues of
contamination regarding mtDNA. This case, in contrast, involves
nuclear DNA analysis. Moreover, the Scott court concluded that
the defendant was not entitled to a pre-trial hearing on the
reliability of mtDNA analysis, but rather could cross-examine the
State's expert as to the trustworthiness and reliability of such
analysis, and be provided the services of his own expert. Id.
at 759-61. The language Defendant Perkins cites from State v.
Morel, 676 A.2d 1347, 1356 (R.I. 1996) also ultimately fails to
support his preclusion argument. While the Morel court did
mention general concerns that often arise regarding the
presentation of DNA evidence, the specific issue before the court
was the statistical relevance of DNA testing. See id. The
Morel court found that the trial court had properly admitted
the DNA evidence in question because "the methods used to
determine the statistical probabilities of a match derived from
DNA analysis affects the weight to be accorded the DNA
evidence, not the admissibility of the evidence itself, and the
determination of that weight is a question for the jury." Id.
As such, Defendant Perkins has cited no precedent indicating that
contamination issues go to the admissibility of DNA evidence, not
the weight it should ultimately be afforded.
Defendant Perkins' failure to identify supporting case law for
his position is not the result of an accident or oversight.
Rather, courts have consistently found that "an allegation of
failure to properly apply a scientific principle should provide
the basis for exclusion of an expert opinion only if `a reliable
methodology was so altered . . . as to skew the methodology
itself. . . .'" United States v. Martinez, 3 F.3d 1191, 1198
(8th Cir. 1993) (quoting In re Paoli R.R. Yard PCB Litig.,
916 F.2d 829, 858 (3d Cir. 1990), cert. denied, 499 U.S. 961,
111 S.Ct. 1584, 113 L.Ed.2d 649 (1991)); see also United States v.
Beasley, 102 F.3d 1440, 1448 (8th Cir. 1996), cert. denied,
520 U.S. 1246, 117 S.Ct. 1856, 137 L.Ed.2d 1058 (1997); United
States v. Ewell, 252 F. Supp. 2d 104, 106 (D.N.J. 2003).
However, testimony that a proper protocol was not followed, or
that possible contamination occurred, generally goes to the
weight, rather than the admissibility, of the evidence. See
United States v. Johnson, 56 F.3d 947, 953 (8th Cir. 1995);
Beasley, 102 F.3d at 1148 ("In every case, of course, the
reliability of the proffered test results may be challenged by
showing that a scientifically sound methodology has been undercut
by sloppy handling of the samples, failure to properly train
those performing the testing, failure to follow the appropriate
protocols, and the like."); see also NRC II, supra, at 6-12.
Indeed, as the district court suggested in Lowe,
[t]he potential for and the significance of
contamination, the adequacy of proficiency testing,
accreditation, and the significance of whether a
laboratory estimates error rates all concern the
issue of quality control. Absent evidence
demonstrating that the particular quality control
procedures followed by the FBI laboratory violated a
statute, regulation or a generally accepted industry
requirement, these issues impact the weight of the
evidence rather than its admissibility.
Lowe, 954 F. Supp. at 420 (citing cases). As such, the great
weight of existing case law suggests that in situations such as the current one, cross-examination as
to potential contamination defects, rather than wholesale
exclusion, remains the proper recourse for a defendant.
In sum, the Court concludes that Defendant Perkins' motion must
be denied because Defendant Perkins (1) has failed to adduce any
evidence suggesting that the alleged contamination of DNA-related
specimens through placement on his bed sheet impacted him and
connected him to the crimes charged; (2) has failed to establish
that the use of the bed sheet as a temporary holding station for
certain objects constituted a violation of the FBI's forensic
protocols or generally accepted practice; and (3) to the extent
that Defendant Perkins has identified a contamination issue, the
issue is not sufficient to skew the otherwise-reliable PCR/STR
typing process, and is therefore best left as a matter to be
dealt with on crossexamination rather than subjecting the
evidence to total preclusion. While the Court certainly concurs
with Defendant Perkins' concern that FBI field technicians follow
their own rules and regulations, and that contamination is to be
avoided where possible, the Court finds that the current practice
of allowing defendants to undermine the weight of questionable
evidence gathered through a generally reliable methodology is
sufficient to compel overall compliance. Given these findings,
Defendant Perkins' Motion to Exclude shall be denied.
The Court's previous DNA-related Memorandum Opinion and Order,
dated April 5, 2005, left several evidentiary issues open that
required resolution before the close of evidence in the
Government's case-in-chief. Events subsequent to the Court's
April 25, 2005 ruling have combined with this decision to close
out all remaining concerns. Since the last DNA-related Memorandum
Opinion and Order, Defendants have been furnished with expert
reports from their DNA experts, have been informed that the Government shall not
introduce DNA evidence indicating a relatively low level of
statistical evidence in its case-in-chief, have decided not to
object to the formal qualification of Ms. Seubert as a DNA
expert, and have generally shied away from filing any motions
that challenge the admissibility of evidence garnered through the
PCR/STR DNA typing process on the basis of the Government's
techniques, methods, and practices employed in this case. These
developments obviated the need for a DNA-related hearing before
this Court preceding the testimony of Ms. Seubert.
The only motion filed by Defendants challenging the
admissibility of certain DNA-related evidence proffered by the
Government was the Motion to Exclude filed by Defendant Perkins.
As indicated above, Defendant Perkins' argument for exclusion
fails due to (1) his inability to establish causation; (2) his
general failure to identify a relevant FBI protocol or accepted
practice violated during the collection of the limited identified
specimens; and (3) the general trend against preclusion and in
favor of cross-examination as to the weight of the evidence on
Given these developments and findings, the Court concludes that
Ms. Seubert, the Government's DNA expert, is qualified as an
expert in PCR/STR DNA testing. Moreover, the Court finds that the
FBI Laboratory's techniques, methods, and practices vis-à-vis
the PCR/STR typing process were in compliance with generally
accepted standards, and therefore formed the basis for a reliable
methodology whose admission is in conformity with Daubert and
Rules 702 and 403 of the Federal Rules of Evidence. Further, as
noted in the Court's previous opinion, the Government's use of
random match probability data to explain the significance of
Defendants' DNA-related results to the jury was both proper and
necessary, and in accordance with accepted practice. Finally, the Court holds that the alleged errors
identified by Defendants, either in their filings or during
cross-examination, are insufficient to skew the otherwise
reliable PCR/STR methodology. Instead, any alleged errors strike
at the weight of the evidence introduced by the Government, and
may be considered by the jury for that purpose. An Order
accompanies this Memorandum Opinion. ORDER
For the reasons set forth in the accompanying Memorandum
Opinion, it is, this 9th day of June, 2005, hereby
ORDERED that  Defendant Aaron Perkins' Motion to Exclude
Contaminated DNA Samples Obtained From Brinkley Road Search and
 Defendant Aaron Perkins' Revised Motion to Exclude
Contaminated DNA Samples Obtained From Brinkley Road Search are
DENIED; it is further
ORDERED that the methodologies used by the Government in the
collection and analysis of its DNA evidence presented at trial is
deemed consonant with the requirements of Daubert, Federal Rule
of Evidence 702, and Federal Rule of Evidence 403. As such, the
DNArelated evidence put forth by the Government at trial is
deemed ADMITTED for the jury's consideration.