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United States v. Evans

United States District Court, District of Columbia

December 6, 2019



          Emmet G. Sullivan United States District Judge

         A federal grand jury indicted Corry Blue Evans and various members of his family on multiple offenses including extortion, money laundering, and bank fraud. Pending before the Court is the government's motion for an order to compel Corry Blue Evans and his co-defendants, including Candy Evans, to provide samples of their DNA. The government seeks to take buccal swabs to compare defendants' DNA to DNA discovered on two weapons: a revolver recovered during the execution of a search warrant at two of his co-defendants' residences; and a shotgun recovered from another co-defendant's residence by consent. Because the government lacks individualized suspicion that this search will lead to evidence of a crime committed by Corry Blue Evans or Candy Evans, the search is unreasonable under the Fourth Amendment. Therefore the government's motion for an order requiring them to submit to a buccal swab is DENIED.

         I. Background

         Corry Blue Evans, along with other members of his family, were charged in a thirteen-count indictment with multiple offenses including extortion, wire fraud, and bank fraud. See Indictment, ECF No. 1. Corry Blue Evans and Robert Evans' charges include conspiracy to commit extortion, bank fraud, wire fraud, and money laundering; and interference with interstate commerce by extortion. See generally Id. Candy Evans is charged with several counts related to witness tampering. Id. ¶¶ 50-55.

         The government alleges that Corry Blue Evans and his co-defendants conspired to commit extortion, bank fraud, and wire fraud for the purpose of enriching themselves. Id. ¶ 31-33. The indictment also alleges that the defendants enlisted Hollie Nadel, a co-defendant, into a scheme in which she would tell certain individuals that she owed large sums of money to nefarious actors, and that these actors would injure, kidnap, and unlawfully confine her unless the debt was paid. Id. ¶ 34- 35. One such individual, Daniel Zancan, obtained money from two companies under false pretenses to make payments to these actors, who were in fact the defendants and their co-conspirators. Id. The co-conspirators then made false statements and provided false documents to financial institutions to conceal the true nature of the payments from Mr. Zancan. Id.

         Six days after the grand jury returned a sealed indictment against Ms. Nadel, the FBI executed several search warrants in Manhattan, where the defendants reside. Gov't's Mot., ECF No. 143 at 3.[1] The agents searched several locations including the residences of many of the defendants. Id. During the execution of a search warrant at Archie Kaslov and Candy Evans' residence, agents recovered a firearm from beneath a mattress, as well as what the agents believe to be monetary proceeds from criminal activity. Id. Separately, Tony John Evans, another co-defendant, advised law enforcement that he kept a shotgun in his apartment, which he located and surrendered to law enforcement. Id. Tony John Evans purchased both firearms. See Ex. A to Gov't's Mem. in Aid of Sent., ECF No. 105-1 (purchase receipts).

         The government submitted both recovered firearms for DNA testing. Gov't's Mot., ECF No. 143 at 4. With respect to the firearm recovered under the mattress at Candy Evans' residence, the FBI lab recovered male DNA that the government states is suitable for comparison purposes. Id. With respect to the shotgun recovered from Tony John Evans' residence, the FBI lab recovered a mixture containing male and female DNA that the government also states is suitable for comparison purposes. Id. The government seeks to compare DNA samples of the defendants to DNA recovered from the firearms. Id.

         The government filed its motion for a buccal swab on July 22, 2019. Gov't's Mot., ECF No. 143. As it noted in that motion, Mr. Kaslov and Robert Evans did not oppose the government's request to take buccal swabs; Corry Blue Evans did not consent to the government's request to take buccal swabs; and Candy Evans had not yet expressed a position at the time of the filing. Id. at 1 n.1.

         On September 3, 2019, having received no opposition over a month after the motion was filed, this Court granted the government's motion. ECF No. 173. Two weeks after the motion was granted, during a status hearing, Corry Blue Evans orally moved to late file an opposition to the motion and Mr. Kaslov and Candy Evans orally joined that motion. The Court granted the motion to late file, and Corry Blue Evans filed his opposition on September 20, 2019. Def.'s Opp'n, ECF No. 184. One day later, Mr. Kaslov withdrew his oral motion to join the opposition and notified the Court that he consented to providing a buccal swab. Archie Kaslov Notice, ECF No. 185. On September 23, 2019, Candy Evans filed a notice formally joining and adopting Corry Blue Evans' opposition. Candy Evans Notice, ECF No. 186. And on September 25, 2019, Robert Evans clarified that he was not joining the motion and stated that he already had provided a buccal swab. Robert Evans Notice of Clarification, ECF No. 188. Accordingly, the dispute before the Court is the motion as applied to Corry Blue Evans and Candy Evans.

         II. Discussion

         The Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” U.S. Const. amend. IV. The government's compulsion of a person to provide a DNA sample is a search under the Fourth Amendment. Maryland v. King, 569 U.S. 435, 446 (2013) (stating “using a buccal swab on the inner tissues of a person's cheek in order to obtain DNA samples is a search”). “As the text of the Fourth Amendment indicates, the ultimate measure of the constitutionality of a governmental search is ‘reasonableness.'” Id. (citation omitted). The application of “traditional standards of reasonableness” requires a court to weigh “the promotion of legitimate governmental interests” against “the degree to which [the search] intrudes upon an individual's privacy.” Id.

         There is surprisingly scant precedent in this Circuit governing when the government's attempt to compel a defendant to provide a buccal swab oversteps the line of reasonableness established in the Fourth Amendment. The government relies on cases in this court which focus on requests for buccal swabs for the purpose of connecting defendants charged with firearm offenses to potential genetic material on a firearm, and to connect a defendant to either the alleged victim of the crime or other relevant evidence found at the crime scene. For example, in United States v. Haight, No. 15-cr-88 (JEB), 2015 WL 7985008, at *1 (D.D.C. Dec. 3, 2015), the government sought an order to compel a defendant who was charged with drug and gun offenses to provide a DNA sample to link that defendant to firearms that were recovered at the scene of the crime. Id. at *1. The court determined that the governmental interest in collecting the DNA was “both [strong[] and . . . specific]” because it sought to link the defendant to the firearms recovered by matching the defendant's potential genetic material on the firearms. Id. Significantly, the defendant in Haight was charged with “eight counts relating to guns and drugs.” Id. The DNA evidence was relevant in that case because it could potentially provide evidence that the defendant possessed the weapons; a fact which clearly was relevant to the gun charge.

         Similarly, in United States v. Proctor, 230 F.Supp.3d 1, 2 (D.D.C. 2017), the government sought an order to compel several defendants to provide DNA evidence because it “intend[ed] to compare [the defendants'] DNA profiles to any DNA traces found on firearms recovered during a valid search of locations over which each [d]efendant exercised dominion and control.” The defendants in Proctor were charged with possession of firearms and the government sought to compare each defendants' DNA only to any DNA recovered on the respective firearm with whose possession each defendant was charged, not to all the weapons seized in the case. Id. The DNA evidence was relevant in Proctor because it was needed for comparison to actual evidence in that case that related to the charges. Id.

         In United States v. Ausby, No.72-cr-67 (BAH), 2019 WL 3718942, at *1 (D.D.C. Aug. 7, 2019), the court granted a motion for an order requiring the defendant to submit a buccal swab when the government proffered evidence which “(1) link[ed] the defendant's gun to the murder weapon; (2) connect[ed] scented oil vials found at the crime scene to the defendant; (3) matche[d] a fingerprint from the crime scene to the defendant; and (4) indicate[d] that the defendant engaged in premeditated activity based on several eyewitnesses identifying the defendant as being present outside [the victim's] apartment in the days prior to her murder.” In Ausby, the defendant successfully moved to vacate a prior felony murder and rape conviction, and the government was working to locate evidence for the defendant's new trial. Id. The government sought an order to compare the defendant's DNA to DNA that was recovered from the victim during her autopsy conducted several years earlier. Id. Based on the ...

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