United States District Court, District of Columbia
COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE.
Presently before the Court is the Defendant’s  Motion to Compel Government to Preserve Evidence, the Government’s  Opposition to Defendant’s Motion to Prevent the Government from Consuming Biological Material in its Entirety, and the Defendant’s  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.
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  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  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:
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  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  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  Reply indicating, in part, that the parties have been unable to resolve this issue. As such, the Court must determine whether or 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).
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 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 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 ...