United States District Court, District of Columbia
G. Sullivan United States District Judge
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
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.
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.
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. 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).
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.
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.
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.
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.
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.
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.
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 ...