The opinion of the court was delivered by: Honorable Ronald S.W. Lew Senior, U.S. District Court Judge
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTIONS
On December 16, 2008, various Motions filed by Defendant Michael Dennis Williams and Defendant Antoine Lamont Johnson came on for regular calendar before this Court. Plaintiff, United States of America, appeared through its counsel of record, Assistant United States Attorneys Elizabeth Yang and Karen Meyer. Defendant Johnson appeared with his counsel of record, Amy Jacks and Richard Lasting. Defendant Williams appeared with his counsel of record, Marcia Morrissey and Lynne Coffin. The matters were submitted, and the Court having considered all papers and arguments, NOW FINDS AND RULES AS FOLLOWS:
1. Defendant William's Motion to Exclude or Limit "Gang" Testimony, to Compel Compliance with Federal Rule Evidence 404(b) and/or 702; and Motion for a Daubert Hearing 
The Court DENIES Defendant William's Motion to Exclude or Limit "Gang" Testimony, to Compel Compliance with Federal Rule Evidence 404(b) and/or 702; and Motion for a Daubert Hearing.
A. The Government Has Not Violated the Notice Requirements of Federal Rule of Evidence 404(b) Because Evidence of Gang Membership in this Case Does Not Qualify As "Other Crimes, Wrongs, or Acts."
The Government has not violated the notice requirements of Federal Rule of Evidence 404(b) because evidence of gang membership in this case does not qualify as "other crimes, wrongs, or acts." If evidence of an act is inextricably intertwined with the crime charged, it is not considered "other acts" evidence. United States v. Williams, 291 F.3d 1180-89 (9th Cir. 2002) (quoting United States v. Vizcarra-Martinez, 66 F.3d 1006, 1012-13 (9th Cir. 1995)). Evidence is "inextricably intertwined" if it "constitutes a part of the transaction that serves as the basis for the criminal charge" or "[is] necessary to ...permit the prosecutor to offer a coherent and comprehensible story regarding the commission of the crime." United States v. Vizcarra-Martinez, 66 F.3d 1006, 1012-13 (9th Cir. 1995).
Where evidence of gang affiliation is probative of the crime charged, it is not Rule 404(b) evidence. See United States v. Santiago, 46 F.3d 885 (9th Cir. 1995) (finding that evidence of gang affiliation did not qualify as "other crimes" evidence subject to Rule 404(b) where it provided a motive for the crime); United States v. Easter, 66 F.3d 1018, 1021-22 (9th Cir. 1995) (finding that evidence of the defendant's gang affiliation was not Rule 404(b) evidence where it related to the identity of the perpetrator for the charged crimes).
Here, similarly to Santiago and Easter, the Government is introducing evidence of Defendant's gang affiliation for its probativeness of the crime charged. The Government intends to introduce the evidence to explain who was involved in the planning of the crime as well as its execution. [Opposition at 8]. The Government has alleged that it will elicit such information to explain the defendants' relationships to one another and with the witnesses. [Id.]. Additionally, the evidence is necessary to give context and coherency to the Government's story of the crime. Without the context of the defendants' affiliation with the Hoovers, the narrative will be fragmented as jurors must speculate as to why defendants would band together seemingly for no reason to commit a robbery and why defendants William and Johnson would admit their participation in a heinous crime to Witness 1.
B. The Admissibility of Expert Gang Testimony, Compliance with Rule 702, Rule 704(b), and Motion for a Daubert Hearing
The Government has stated that it does not intend to call any expert witnesses with respect to Defendant's gang affiliation. [Opposition at 2, n.1]. Therefore, to the extent Defendant's Motion addresses the use of expert testimony, Federal Rule of Evidence 702, and a Daubert Hearing, it is DENIED WITHOUT PREJUDICE.
C. The Government's Introduction of Testimony Regarding Defendant's Gang Membership is Relevant Under Rule 401 and Should Not be Excluded Under Rule 403 as Unduly Prejudicial.
"[E]vidence of gang affiliation is admissible when it is relevant to a material issue in the case." United States v. Easter, 66 F.3d at 1021. However, Federal Rule of Evidence 403 ("Rule 403") states, "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice..." Fed. R. Evid. 403.
The Government is not introducing gang affiliation evidence to show Defendant's motive or intent. The Government has stated that it intends to use evidence of Defendant's gang affiliation because it is probative of the participants' identities, their relationships among each other and witnesses, and their conduct pertaining to the charged crimes. [Opposition at 10]. For example, the Government will use gang affiliation evidence to prove defendants were present at a planning meeting before the robbery. [Id.]. The Government argues that without the context of Defendant's association with the Hoovers, the jury will be confused about why Defendant would seemingly for no reason band together with the others to commit the robbery and why he would make incriminating statements to Witness 1. Additionally, the jury will be confused about why Defendant is referred to by a moniker without some explanation about how they are used by the Hoovers. As shown above, The Government has shown that the gang affiliation evidence is relevant under Federal Rule of Evidence 401 because it is relevant to the identities of the robbery participants and how the participants and witnesses know each other. See Easter, 66 F.3d at 1021 ("evidence tending to show identity, such as the gang-related connections between the defendants, the mastermind of the crime, and the getaway car, was very probative".
Any potential prejudice to Defendant can be minimized by appropriate steps taken by this Court. For example, in Easter, the Ninth Circuit found that the Court's steps to minimize any potential prejudice rendered the gang affiliation evidence admissible under Rule 403. Here, the Government has offered to submit proposed voir dire questions to screen for juror bias in regards to gang affiliation, to propose a limiting instruction for the jury that makes clear Defendant should not be found guilty because of his gang affiliation, that the evidence may only be considered as it relates to Defendant's identity and conduct in this case, and relationship to other defendants. [Opposition at 13]. Therefore, Defendant's Motion to exclude evidence of Defendant's gang affiliation under Rule 403 is DENIED.*fn1 However, the Government SHALL submit, at the appropriate time, the proposed voir dire questions and limiting instructions.
2. Defendant Johnson's Motion to Adopt Co-Defendant's Motion to Exclude or Limit "Gang" Testimony 
To the extent applicable, the Court GRANTS Defendant Johnson's Motion to Adopt Defendant Williams' Motion to Exclude or Limit "Gang" Testimony.
3. Defendant Johnson's Motion to Dismiss Indictment for Government's Destruction of Exculpatory Evidence or, In the Alternative, to Suppress Secondary Evidence Relating to the Destroyed Evidence 
After the robbery, Police officers recovered a knit hat with dreadlocks attached ("rasta hat") from the crime scene. They submitted it to criminalists from the LAPD Scientific Investigation Division ("LAPD SID") for examination. Criminalists recovered twelve human hairs from the rasta hat. Four of the twelve hairs had root tissue attached. Those four hairs were subjected to nuclear DNA testing. Testing showed that three of the four hairs did not contain sufficient material to yield a conclusive result. However, one of the four hairs was later matched to Defendant Johnson. During DNA testing all four hairs were destroyed. The other eight hairs were preserved.
Before testing, the criminalist made preliminary notations suggesting that the four hairs varied in color and length. However, the criminalist did not take any photographs of the hairs or examine them under a microscope to make further observations about their physical characteristics.
Defendant seeks to dismiss the Indictment against him or alternatively suppress any secondary evidence relating to the destroyed evidence. The Court DENIES Defendant Johnson's Motion.
A. Defendant's Right to Due Process Was Not Violated by the Government's Destruction of Four Hairs Found in the Rasta Hat
The Government has a constitutional duty to turn over exculpatory evidence that raises a reasonable doubt about the defendant's guilt. United States v. Agurs, 427 U.S. 97, 112 (1976). When the Government destroys or fails to preserve evidence in it's possession, there is only a due process violation if the evidence is material. "...To meet this standard of constitutional materiality, 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." California v. Trombetta, 467 U.S. 479, 488-89 (1984). If the destroyed evidence is not "material," then there is only a denial of due process of law if "a criminal defendant can show bad faith on the part of the police..." Arizona v. Youngblood, 488 U.S. 51, 57 (1988).
In Arizona v. Youngblood, 488 U.S. 51 (1988), the Supreme Court dealt with the prosecution's failure to preserve semen samples. In that case, neither the prosecution nor the defense knew the test results of the semen samples. Id. at 56. The Court found that the unpreserved evidence did not meet the standard required by Trombetta because the "possibility that the semen samples could have exculpated [defendant] if preserved or tested is not enough to satisfy the standard of constitutional materiality." Id. (emphasis added). Furthermore, the Court reiterated that Trombetta requires the defendant to show that the police knew the semen samples would have exculpated him "before the evidence was destroyed." Id.
Similarly, in this case, the Government did not know of any exculpatory value of the four hairs before they were destroyed because they were consumed by the DNA testing before the Government knew the test results. This is similar to Youngblood where the police did not know the results of the DNA testing before destroying them. The only difference is that Defendant argues the Government knew the DNA evidence could have exculpated Defendant before destroying it because the criminologist made notations about differing physical characteristics of the twelve hairs. However, the Government's Opposition submits evidence explaining that the slight differences in the physical characteristics of the hairs would not give them reason to believe that the hairs were deposited by different persons. For example, the Government has submitted the criminologist's report noting the physical characteristics of the hair samples. In that report, the criminologist notes that the hairs range in color from light brown to very dark brown, and some have roots while others have no follicular tissue. [Opposition, Exhibit A]. However, Linda French, a criminologist with the LAPD SID, states in her declaration that the hairs of one person can exhibit varying characteristics. [French Decl. ¶ 3].
Moreover, not knowing who the hairs came from, the Government could not have known that the evidence would exculpate Defendant. At the time of testing, Defendant was not even a suspect. This case is distinguishable from the case cited by Defendant, United States v. Cooper, 983 F.2d 928 (9th Cir. 1993), where the Government was specifically told and had reason to believe that evidence seized from the specific defendant was exculpatory, but destroyed it anyway. Therefore, Defendant cannot carry his burden to show that the destroyed evidence had an "apparent" exculpatory value before it was destroyed.*fn2
Even if the destroyed evidence had an apparent exculpatory value before it was destroyed, Defendant must show that he is "...unable to obtain comparable evidence by other reasonably available means." Trombetta, 467 U.S. at 488-89.
Here, the Government has given Defendant the eight remaining hairs found in the rasta hat for comparison with Defendant's hair. The only apparent difference of the eight remaining hairs from the destroyed hairs is that the destroyed hairs had root tissue attached.
Therefore, Defendant has access to comparable evidence by reasonably available means because he has the remaining eight hairs to test. In fact, the Government's testing of these eight hairs reveals that they come from multiple sources. [Opposition, Ex. F]. The Defense's main theory is that there were multiple sources of hair in the rasta hat because multiple persons wore the rasta hat. Therefore, Defendant can still use the remaining hairs to support this theory and is thus able "to obtain comparable evidence by other reasonably available means." Trombetta, 467 U.S. at 488-89.
Based on the above, Defendant has not met his burden to show a due process violation under Trombetta.
If a defendant cannot meet the Trombetta test to show constitutional materiality of the destroyed evidence, there is only a denial of due process of law if a "defendant can show bad faith on the part of the police." in failing to preserve the evidence. Youngblood, 488 U.S. at 57.
"The presence or absence of bad faith by the police for purposes of the Due Process Clause must necessarily turn on the police's knowledge of the exculpatory value of the evidence at the time it was lost or destroyed." Id. at 56. The Government's conduct does not indicate in any way that it believed or should have believed that the evidence could form a basis for exonerating Defendant because at the time of destruction Defendant was not even a suspect. In fact, the Government did not intentionally destroy the evidence. It was consumed by the testing that sought to identify a suspect.
Moreover, failing to photograph or conduct microscopy before DNA testing did not violate the LAPD SID's standard operating procedures. See United States v. Heffington, 952 F.2d 275, 280-81 (9th Cir. 1991) (finding that "a police department's compliance with "departmental procedure" should be regarded as an indication that the disposal of evidence was not performed in "bad faith"). Contrary to Defendant's assertion, the LAPD SID's standard procedures do not require photographing or conducting microscopy on hair samples. [See Blanton Decl. ¶¶ 3-4; Opposition, Ex. 2].*fn3 As cases above illustrate, this factors toward a finding of good faith.
Additionally, courts have consistently found no bad faith where evidence was destroyed during scientific testing. See United States v. Stevens, 935 F.2d 1380, 1386-88 (3rd Cir. 1991) (no bad faith where saliva sample consumed during testing); Carlson v. State, 945 F.2d 1026, 1029 (8th Cir. 1991) (destruction of entire blood sample during prosecution testing did not violate due process). See also, Garrett v. Lynaugh, 842 F.2d 113 (5th Cir. 1998) (finding that sample consumed during testing did not even qualify as "destroyed evidence" under Trombetta because testing was necessary and there was no evidence left to preserve after the test was conducted). Here, the evidence was destroyed during scientific testing.*fn4 Therefore, Defendant has not met his burden to show bad faith on the part of the Government, and Defendant's Motion to Dismiss the Indictment is DENIED.
B. Secondary Evidence Relating to the Destroyed Hairs Should Not be Suppressed
"When primary evidence is destroyed and secondary evidence is used, the latter's admissibility at trial turns on a balancing test aimed at insuring a fair trial." United States v. Lillard, 929 F.2d 500, 504 (9th Cir. 1991) (citing United States v. Loud Hawk, 628 F.2d 1139, 1151 (9th Cir. 1979). "The court must weigh the extent of the Government's culpability for the lost evidence and the degree of prejudice to the defendant." Id. at 504.
After examining the Loud Hawk factors, it is clear that the Government's conduct was reasonable. Weighing in the Defendant's favor is only the fact that the evidence was destroyed while in the custody of federal officers. However, as explained above under the Youngblood analysis, the Government did not act in disregard of the Defendant's interests. The Government did not intentionally destroy the hairs; but rather, they were destroyed during testing that sought to identify a suspect. The Government's failure to photograph or conduct microscopy on the hairs does not violate it's standard operating procedures [Blanton Decl. ¶¶ 3-4]. Furthermore, such tests had little or no value to the investigation at the time of testing.*fn5
[French Decl. ¶¶ 2, 4]. Lastly, none of the Government's attorneys were involved in the testing or destruction of the hair. As these facts indicate, the Government's actions were reasonable under the Loud Hawk factors and weigh against suppressing the evidence.
In regards to prejudice to Defendant, the destroyed evidence at issue is central to the case. The one hair identifying Defendant is allegedly the only piece of physical evidence linking him to the robbery. This is substantial proof of his identity as one of the robbers. The other three hairs are central to the case because Defendant's main defense is that multiple persons wore the rasta hat.
However, it is unlikely that Defendant is prejudiced from the destroyed evidence for several reasons. First, the Government still has eight remaining hairs found in the rasta hat. The Government has given these to Defendant for testing. As stated previously, some of these hairs do not match Defendant. Therefore, there is adequate substitute evidence to support his theory that other persons wore the rasta hat. As for the three destroyed hairs that were inconclusive, Defendant is free to argue to the jury that they might have not matched as well.
Second, Defendant is not prejudiced by his inability to conduct further testing on the incriminating hair because the DNA extracted from that hair is still available for testing and likely only to further incriminate him. Defendant is also free to cross-examine the Government's witness as to the reliability of the testing. See also United States v. Traylor, 656 F.2d 1326, 1335 (9th Cir. 1981) (finding no prejudice to the defendant because he was not able to conduct independent tests of the evidence where secondary evidence was probative and reliable and defendant cross-examined chemist about the testing).
Weighing the Government's culpability with any prejudice to Defendant, this Court finds that Defendant will still receive a fair trial. The Government acted reasonably and the prejudice to Defendant is minimal. Therefore Defendant's Motion to Suppress Secondary Evidence Relating to the Destroyed Evidence is DENIED.
4. Defendant Johnson's Motion to Traverse Search Warrant of March 18, 2005 
Defendant Johnson's Motion to Traverse Search Warrant of March 18, 2005 is DENIED. On March 18, 2005, Judge Fidler of the Superior Court issued a search warrant for police officers to obtain a sample of Defendant Johnson's blood and saliva. Judge Fidler found probable cause and ...