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United States v. Williams


December 23, 2008


The opinion of the court was delivered by: Honorable Ronald S.W. Lew Senior, U.S. District Court Judge


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 [617]

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 [672]

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 [632]

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

1. The Trombetta Test

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.

2. The Youngblood Test

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 [627]

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 issued the warrant based on the affidavit of LAPD Detective Maria Tomes.

A. Requirements for Franks Hearing

"[W]here the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request." Franks v. Delaware, 438 U.S. 154, 155-56 (1978). The defendant is also "permitted to challenge a warrant affidavit valid on its face when it contains deliberate or reckless omissions of facts that tend to mislead." United States v. Stanert, 762 F.2d 775, 781 (9th Cir. 1985). A substantial preliminary showing does not require clear proof of deliberate or reckless false statements. United States v. Chesher, 678 F.2d 1353, 1360 (9th Cir. 1982). However, allegations that the "affidavit displayed a pattern of deliberate omission[s]," without further evidence, is insufficient to warrant a Franks hearing. United States v. Chavez-Martinez, 306 F.3d 973, 979 (9th Cir. 2002).

"Not all information in the government's possession need be included in the warrant affidavit." United States v. Garza, 980 F.2d 546, 551 (9th Cir. 1992) (quoting United States v. Johns, 948 F.2d 599, 606 (9th Cir. 1991). "Only if omitted facts 'cast doubt on the existence of probable cause' do they rise to the level of misrepresentation." Id.

The Court determines if the falsehood was necessary to the finding of probable cause by determining if there is probable cause on the face of the warrant after (1) deleting the falsity from the affidavit and (2) inserting the omissions which misled the Court. United States v. Ippolito, 774 F.2d 1482, 1486-87 & n.1 (9th Cir. 1985).

B. Analysis

1. Larry Jordan

Defendant argues that Tomes made misleading omissions in regards to Larry Jordan's criminal history, suspected involvement in the crime, and inconsistent statements to the investigating officers.

Defendant does not meet the requirements entitling him to a Franks hearing. Defendant must show, "[T]he affiant intentionally or recklessly omitted facts required to prevent technically true statements in the affidavit from being misleading." Stanert, 762 F.2d at 781. In addition, the defendant must show that the "affidavit, once corrected and supplemented," would not "provide . . . a substantial basis for concluding that probable cause existed" to search defendant's residence. United States v. Jawara, 474 F.3d 565, 582 (9th Cir. 2007) (quoting Stanert, 762 F.2d at 782).

It is true that Tomes omitted Jordan's convictions for various crimes ranging from involuntary manslaughter, narcotics, and stealing. However, Tomes included in her affidavit that Jordan was Mirandized prior to his interview. The Ninth Circuit has stated that an affidavit which states a person was Mirandized makes clear that he is a suspect in the crime. See Belmontes v. Brown, 414 F.3d 1094, 1122 (9th Cir. 2005). Thus, it is unlikely that Tomes was intending to mislead the magistrate into believing that Jordan was an upstanding citizen by not revealing his criminal history because she included information that indicated he was a suspect in the robbery and murder, and that his van was used in the crime. Additionally, Defendant has not made any showing, other than a blanket assertion, that Tomes made these omissions intentionally or with reckless disregard for the truth. Most importantly, omitting Jordan's criminal history would not change the finding probable cause because it would not change any credibility issues in regards to Jordan because the affidavit taken as a whole alerts the magistrate to the potential credibility issues with Jordan.

The same is true for any omissions regarding Jordan's suspected involvement in the crime. The fact that Tomes included the fact that Jordan was Mirandized and his van was used in the crime is sufficient to alert the magistrate to any lack of credibility on Jordan's part. See Johns, 948 F.2d at 606 ("The government need not include all of the information in its possession to obtain a search warrant."); United States v. Ellison, 793 F.2d 942, 947 (8th Cir. 1986) (affiant's omission that several informants were in jail and had received financial consideration from the government, did not undermine informant's information or cast doubt on probable cause). Therefore, there is no material omission, let alone an omission sufficient to remove probable cause. Additionally, there is no substantial showing that this omission was deliberate or reckless.*fn6

See United States v. Colkley, 899 F.2d 297, 301-302 (4th Cir. 1990) (finding that the court could not infer intent or recklessness from the fact of omission itself, otherwise it would collapse the two distinct elements of "intentionality" and "materiality" into one element). See Chavez-Miranda, 306 F.3d at 979 (finding that bare assertions that the omissions were reckless or intentionally misleading fall short of the preponderance of the evidence that Franks requires.").

Lastly, Defendant cannot make the requisite showing in regards to Jordan's inconsistent statements about selling his van to Defendant, his inconsistent descriptions of the purchaser of his van, and his initial identification of another person as the purchaser of the van.

The Government argues that despite Jordan's inconsistent statements, he consistently stated that Defendant was present at the sale of his van. Despite having initially provided varying descriptions of the purchaser and tentatively selecting the photograph of another, Jordan did ultimately identify Defendant as the purchaser of his van. This was collaborated by CW-2. Additionally, it was reasonable for the detective to determine that these inconsistencies were more akin to false exculpatory information*fn7 or motivated by fear.*fn8 The Government's argument is reasonable because Tomes could have determined that the prior inconsistent statements were false and/or not relevant to the probable cause determination, especially in light of other collaborating information. Courts have found that negligent omission does not rise to the level of deliberate or reckless. Colkley, 899 F.2d at 301-02. Additionally, the court should not "infer[] intent or recklessness from the fact of omission itself." Id.

Regardless of whether a material omission was made, Defendant has not shown that the omission is necessary for a finding of probable cause. For an omission to serve as the basis for a hearing under Franks, Defendant must show "that the affidavit . supplemented by the omissions would not be sufficient to support a finding of probable cause." Stanert, 762 F.2d at 782. If the information regarding Jordan's inconsistent statements were submitted in the affidavit, it would not have changed the fact that there was probable cause. The affidavit includes information from CI-I, a professed member of the Hoovers and one of its robbery crews, that Johnson was part of the robbery. It also includes information from CW-1 and CW-2 that Defendant helped plan the robbery. See also United States v. Meling, 47 F.3d 1546, 1555 (9th Cir. 1995) (explaining that when other information supports a finding of probable cause, an informant's low credibility is inconsequential).

Therefore, Defendant should not be granted a Franks hearing on the basis of any omissions made concerning Larry Jordan.

2. CI-1

Defendant argues that the statements provided by CI-1 are misleading because the Government failed to provide information concerning CI-1's criminal history, that CI-1 committed other bank robberies in robbery crews that did not include Defendant, he denied any involvement in the crime at issue, he gave a false alibi as to his whereabouts during the robbery, and he has been implicated in the robbery at issue. As a result, he argues, the statement that CI-1 is "currently assisting the FBI and U.S. Attorney's Office in solving bank robberies committed by members of his robbery crew" is misleading because it omits critical facts about CI-1's credibility.

In its totality, the affidavit would not mislead the magistrate into thinking that CI-1 was unbiased and credible. The affidavit states that CI-1 is a member of the Hoovers, conducted armed robberies, and served as the crew leader for a robbery crew. [Tomes' Aff. ("Ex. 1") at 8]. See also United States v. Furlong, 844 F. Supp. 624, 628 (D. Mont. 1994) (finding "it is reasonable to conclude that law enforcement assumed that the [magistrate] would have supposed that the informant had an ulterior motive, such as a reward, for turning in the information; United States v. Strifler, 851 F.2d 1197, 1201 (9th Cir. 1988) (finding that magistrate would naturally have assumed that informant was not a disinterested citizen). More importantly, these omissions would not have effected the probable cause determination because the magistrate was already apprised that CI-1 had a criminal history from the facts given about CI-1's membership in the Hoovers. Lastly, Defendant makes no allegation that these omissions were done knowingly or intentionally to mislead.*fn9

Defendant is correct that Jordan, CW-1, and CW-2 implicated CI-1 in the robbery.*fn10 However, this is not clear on the face of the affidavit because CI-1 is not named as Day Day. Therefore, the magistrate could not have made an accurate assessment of CI-1's credibility.

However, adding this information would not change the probable cause determination for two reasons.

First, CI-1's statements were collaborated by CI-2. See Meling, 47 F.3d at 1555 (explaining that when other information supports a finding of probable cause, an informant's low credibility is inconsequential); United States v. Landis, 726 F.2d 540, 543 (9th Cir. 1984) (interlocking tips from different confidential informants enhance the credibility of each).*fn11

Additionally, the court should not "infer[] intent or recklessness from the fact of omission itself." Id. Lastly, the purpose of CI-1's statement was to establish that Defendant was a member of the Hoovers and known as a "shooter". CI-1 did not make any statement that Defendant was involved in the crime at issue. Therefore, any credibility issue with CI-1 because of his implication in the crime at issue would not be as relevant or as important if the information he provided directly implicated Defendant in the robbery at issue.

Therefore, Defendant should not be granted a Franks hearing on the basis of any omissions made concerning CI-1.

3. CI-2

Defendant argues that Tomes made misleading omissions in regards to CI-2's criminal history, included a false statement that CI-2 identified Defendant as a "shooter" in the gang, and misled theCourt by stating that Defendant was part of the gang's robbery crew, when in reality there are multiple robbery crews.*fn12 *fn13

Defendant's argument about omissions regarding CI-2's criminal history lacks merit for the same reasons explained above in regards to Jordan and CI-1. Tomes stated that CI-2 was a member of the Hoovers, conducted armed robberies, and served as the crew leader for a robbery crew. [Ex. 1 at 8-9].

Defendant's allegation that Tomes included a false statement that CI-2 identified Defendant as a "shooter" in the gang is also unpersuasive. Tomes states in her affidavit that her information from CI-2 is based on information provided by Detective O'Donnell and Jaramillo. [Ex. 1 at 8]. Attached to the Government's Opposition as Exhibit C is O'Donnell's notes from his interview with CI-2. In those notes, CI-2 identifies Defendant as a "shooter." [Ex. C at 3]. The apparent confusion comes from the fact that Special Agent Mike Haluahni, who was present at that same interview, did not include this information in his report. However, Tomes did not include a false statement in her report as shown by O'Donnell's notes.

Lastly, Defendant argues that Tomes' statement that CI-2 was part of "the gang's robbery crew" was misleading because it suggests that the "Hoovers have only one robbery crew" instead of multiple crews. Thus, he argues, this would have weighed against a probable cause finding because it implies that CI-2 and Defendant were part of the same robbery crew, when really there were multiple crews.

This argument also fails because Tomes' affidavit states that the Hoovers have smaller "sets," "factions," or "cliques," some of which "form robbery crews." Therefore, the magistrate was alerted to the fact that there are multiple robbery crews within the Hoovers. Defendant has not made a showing that Tomes' made this statement intentionally or in reckless disregard for the truth in light of the fact that Tomes clearly explained there were multiple robbery crews. Changing the affidavit to include this information might lessen probable cause to the extent that the magistrate might infer that if there is only one crew it was the one responsible, but it would not negate probable cause because CI-2's statement was provided to show that CI-2 knew Defendant was in one of the robbery crews, not that they were in the same crew, the Hoover's only crew, or Defendant was in a specific crew.

4. CW-1

Defendant argues that Tomes' omitted the fact that CW-1 came forward after a reward was offered, the murder was public knowledge, the police were not looking for someone in a charger's jacket, and $300,000 was not the correct amount stolen. Additionally, Defendant omitted CW-1's criminal history.

In regards to any alleged omissions, Defendant does not make a substantial showing that any omitted facts were intentionally or recklessly omitted to mislead the magistrate. To begin, the magistrate would not have been misled about $300,000 being the incorrect amount stolen because Tomes' states in the affidavit that $436,000 was stolen. [Ex. 1 at 6]. Additionally, it is apparent from the affidavit that the crime was public knowledge because Tomes states that CW-1 told her she saw a press conference about the murder on television. [Ex. 1 at 10]. Furthermore, there is no allegation, other than the omission itself, that Tomes' intentionally or recklessly omitted this information. See Chavez-Miranda, 306 F.3d at 979 (finding the defendant's allegation of that affiant had a pattern of deliberate omission, without specific evidence, was insufficient to support claim that affiant recklessly or intentionally misled the court); Colkley, 899 F.2d at 301-02 (finding that the court could not infer intent or recklessness from the fact of omission itself, otherwise it would collapse the two distinct elements of "intentionality" and "materiality" into one element).

In actuality, Defendant's primary argument is that the information provided by CW-1 was hearsay and public knowledge, and therefore unreliable. However, this is not sufficient to entitle Defendant to a Franks hearing because "the veracity of only the affiant [may] be challenged." United States v. Perdomo, 800 F.2d 916, 920 (9th Cir. 1986); United States v. Staves, 383 F.3d 977, 983 (9th Cir. 2004). This argument challenges the veracity of CW-1.

Therefore, Defendant is not entitled to a Franks hearing based on any omissions in regards to CW-1.

5. CW-2

Defendant states that the affidavit falsely represents that CW-2 heard the planning of an "armored truck robbery" as opposed to the originally reported "bank or truck robbery." Defendant argues that this is significant because during this time there were multiple robberies, and it is believed that CW-2's statement shows she overheard the planning of a different robbery in question. Defendant supports this argument by stating that in CW-2's first interview she identified four individuals as planning a bank or truck robbery. In the next interview, several months later, CW-2 identified two additional persons, not originally named, as present at the planning meeting. One of these persons included Defendant. Defendant argues this is significant because Tomes was aware of the fact that there was another armed robbery of a bank one week earlier to the crime at issue, in which two of the persons CW-2 identified were involved. Therefore, if this information was included, the magistrate would have realized CW-2 was unreliable as to who was present at the meeting and what crime was being discussed.

Defendant's argument fails for several reasons. First, Defendant is incorrect that CW-2 did not identify Defendant in the first interview. Although, not included in Tomes' affidavit, according to the Government, Special Agent Stephen May's notes show that CW-2 identified Defendant in that meeting.*fn14 [Yang Decl. Ex. J].

Defendant's next claim about Tomes making a false allegation that CW-2 overheard the planning of the "armored truck robbery" when Detective O'Donnell's interview report states that CW-2 overheard the planning of a "bank robbery or a truck robbery," also fails. Defendant has not alleged facts to show that this was a deliberate or reckless omission. He only argues that in the context of another similar crime at the time, this is significant because it is impossible to conclude the robbery being discussed was the robbery at issue in this case. Whether CW-2 said bank robbery, truck robbery, or armored truck robbery, in the context of CW-2's statement it was not unreasonable for Tomes to conclude that this was the armored truck robbery at issue.*fn15 This is true, especially since CW-2 said that she heard about the murder and knew the Hoovers were involved. See United States v. Senchenko, 133 F.3d 1153, 1158 (9th Cir. 1998) (finding there was no reckless falsity unless high degree of awareness of probable falsity).

Therefore, Defendant is not entitled to a Franks hearing on the basis of CW-2's statements.

For all the reasons stated above, Defendant has not met his burden to entitle him to a Franks hearing.

5. Defendant Johnson's Motion to Suppress Evidence Obtained as Result of Service of Search Warrant Obtained in Violation of Rule 41 of the Federal Rules of Criminal Procedure [624]

Defendant Johnson's Motion to Suppress Evidence Obtained as a Result of Service of Search Warrant Obtained in Violation of Rule 41 is DENIED.

"The mere fact that evidence obtained by state officers, under a state warrant, based upon violations of state law, is used in a federal prosecution does not invoke the requirements of Rule 41." United States v. Crawford, 657 F.2d 1041, 1046 (9th Cir. 1981). However, if the search is "federal in character" then the "provisions of Rule 41 designed to protect the integrity of the federal courts or to govern the conduct of federal officers" apply. Id. "...A search is federal if from the beginning it was assumed a federal prosecution would result." United States v. Palmer, 3 F.3d 300, 303 (9th Cir. 1993).

If the Government violates Rule 41, then Court must suppress the evidence if the violation is "fundamental." United States v. Johnson, 660 F.2d 749, 753 (9th Cir. 1981). "A violation is 'fundamental' only where it, in effect, renders the search unconstitutional under traditional fourth amendment standards." Id. Where the alleged violation is not fundamental, suppression is mandated only if "(1) there was prejudice in the sense that the search might not have occurred or would not have been so abrasive if the Rule had been followed, or (2) there is evidence of intentional and deliberate disregard of a provision in the Rule." United States v. Radlick, 581 F.2d 225, 228 (9th Cir. 1978) (internal citation omitted).

In Palmer, 3 F.3d at 303, the Ninth Circuit found that a search conducted pursuant to a state search warrant was not federal in character where state officers initiated the investigation and merely provided information to the federal government, and the federal government had no intent to prosecute the case before the search occurred. The Court in Palmer distinguished the facts from Crawford because local officials initiated and controlled the investigation.

A. Defendant Has Not Met his Burden to Show that the Search Was "Federal" in Character

Based on the evidence submitted thus far, the Court finds no evidence showing that "from the beginning it was assumed a federal prosecution would result."*fn16 The facts show the LAPD processed the scene, collected the physical evidence, and conducted almost all of the forensic analysis. [Opposition at 31; Ex. A]. Although the Government had some level of participation initially, it appears that early on the investigation diverged as the Government's primary goal was investing the Rolling 30's for other armed robberies, while LAPD pursued the crime at issue.*fn17 This is supported by the Government's lack of participation in obtaining or executing the search warrant, and the evidence submitted of the LAPD's primary role in investigating the crime at issue.*fn18

Nevertheless, the Court is mindful of Defendant's argument that he has information leading him to believe that the LAPD detectives were deputized federal agents, either prior to or during the investigation, and that there is evidence of extensive meetings between Federal prosecutors and LAPD detectives. However, at this time there is no evidence that the investigation was "federal in character" and without further facts to substantiate these claims, this Motion is DENIED WITHOUT PREJUDICE.

B. Regardless of Whether the Search was "Federal," the Evidence from the Search Warrant Should Not be Suppressed

Even assuming the search was "federal," the evidence should not be suppressed because there was no fundamental violation, prejudice, or evidence of intentional and deliberate disregard of a provision in Rule 41. Radlick, 581 F.2d at 228.

Defendant's argument is that the Government violated Rule 41 because the search warrant was issued by a state judge at the request of the LAPD, as opposed to application by a federal officer to a federal magistrate. Additionally, the return was not made to a federal magistrate and the warrant failed to allege that a federal crime was committed. [Motion at 5].

Defendant is correct that the Government violated Rule 41.

1. There Was No "Fundamental" Violation

Defendant argues that the violation of Rule 41 mandates suppression because the violation was fundamental in that the affidavit supporting the search warrant contained material misrepresentations and omissions that if corrected fail to establish probable cause. This argument is set forth in Defendant's Motion to Traverse Search Warrant. As concluded in that Order, the search warrant had probable cause, and thus no fundamental violation.

2. There is No Prejudice Because the Search Would Still Have Occurred if Rule 41 Had Been Followed

Defendant explains that when the Government sought wiretap applications in federal court, it advised the judge of the various inconsistent statements of Larry Jordan and his criminal history, unlike the affidavit to the superior court magistrate. As a result, he argues, if the Government had done the same for the warrant at issue in federal court, the federal magistrate would not have found probable cause.

Defendant's argument fails because, as explained in the Order for Defendant's Motion to Traverse Search Warrant, these statements were not material omissions and there was still probable cause even if they were submitted to the superior court magistrate. See United States v. Ritter, 752 F.2d 435, 441 (9th Cir. 1985) (finding no prejudice where state magistrate issued search warrant because there was "no indication that a federal magistrate would have handled the search warrant application differently than did the state judge."). Additionally, Defendant's argument is undermined because he states that the federal judge found probable cause to grant an application for a wiretap, even after the Government explained Jordan's inconsistent statements and prior criminal history.

3. There is No Evidence of Intentional and Deliberate Disregard of Rule 41

Defendant argues that the Government must have deliberately and intentionally disregarded Rule 41 because given the misrepresentations and omissions in the affidavit, the federal officers would not have wanted to risk their reputation and credibility by presenting a misleading affidavit to a federal judge or magistrate. Therefore, they "made an end run around the rule" by sending local police to the state magistrate, who were unfamiliar with the investigation. [Motion at 10].

Again this argument fails because there was probable cause for the search warrant with or without the alleged omissions and misrepresentations. Additionally, this speculation is insufficient to show that the Government deliberately and intentionally disregarded Rule 41.*fn19

There being no "fundamental" violation of Rule 41, prejudice, or deliberate and intentional disregard of Rule 41, any evidence obtained from the search should not be suppressed. Defendant's Motion is DENIED WITHOUT PREJUDICE.

6. Defendant William's Motion to Exclude DNA Test Results and Request for Daubert Hearing [609]

Defendant Williams' Motion to Exclude DNA Test Results and Request for Daubert Hearing is DENIED. However, this Order does not apply to Defendant's argument that the Government conducted "Low Copy Number" testing on both DNA samples found to match Defendant.

A. Legal Standard Under Daubert and Rule 702

Federal Rule of Evidence 702 provides that "if scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue," an expert "may testify thereto." Fed. R. Evid. 702. In order for scientific evidence to be admissible under Rule 702 and Daubert, the Court must find that the testimony is reliable. To make this determination the court must assess (1) whether the theory or technique can be and has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error of a particular scientific technique and the existence and maintenance of standards controlling the technique's operation; (4) whether the technique is generally accepted. Daubert v. Merrell Dow Pharms., 509 U.S. 579, 593-594 (1993). "The focus [] must be solely on principles and methodology, not on the conclusions that they generate. Id.

B. Analysis of PCR/STR Testing Under the Daubert Factors

1. Whether the Theory or Technique Can and Has Been Tested

Defendant does not seem to contest the fact that PCR/STR testing can and has been tested. In United States v. Ewell, the District Court of New Jersey found, "There is little doubt that [PCR-STR DNA typing] has a testable hypothesis. 'The hypothesis of PCR/STR DNA typing [utilizing Profiler Plus and Cofiler] is that with proper procedures an expert can determine the allelic types of given DNA samples at the thirteen core STR loci.' . . . [T]his hypothesis can be tested by any laboratory with the proper equipment to perform the PCR process." United States v. Ewell, 252 F. Supp. 2d 104, 111 (D.N.J. 2003) (quoting United States v. Trala, 162 F. Supp. 2d 336, 346 n. 11 (D. Del. 2001). Moreover, this is further supported by the extensive peer review that this method has received (as explained below). Thus, this factor of the Daubert test weighs in favor of admissibility.

2. Peer Review and General Acceptance in the Scientific Community

Courts have consistently found that PCR/STR testing has not only been extensively peer reviewed, but is also generally accepted in the scientific community.*fn20 In United States v. Morrow, 374 F. Supp. 2d 51, 61 (D.D.C. 2005), the D.C. Court of Appeals found that "Given the weight of [judicial] authority, . as a general matter, PCR/STR DNA testing meets the strictures of Daubert and is admissible." Based on the above and evidence to the Court, the Court finds that PCR/STR testing is properly peer reviewed and generally accepted in the scientific community. This Court does not need a Daubert hearing to conclude what countless other courts have virtually unanimously agreed upon.

Defendant attempts to distinguish the DNA testing in this case because it involves the Profiler Plus and COfiler kits. However, this argument fails for several reasons. First, many courts in other jurisdictions have concluded that these kits are sufficiently peer reviewed and generally accepted in the scientific community. See People v. Smith, 107 Cal. App. 4th 646, 665 (Cal. App. 2d Dist. 2003) (listing numerous validation studies in peer-reviewed journals for Profiler Plus and COfiler, and finding they are sufficiently accepted in the scientific community); Ewell, 252 F. Supp. 2d at 111 (same).

Second, the Court does not need to undergo a Daubert analysis if the only subject of review is a new PCR/STR test kit. In People v. Hill, 89 Cal. App. 4th 48 (Cal. App. 2d Dist. 2001), the court found that each new PCR/STR test kit need not, as a matter of law, be subjected to an analysis to determine scientific reliability as long as it complies with PCR/STR methodology. See also People v. Jackson, 77 Cal. Rptr. 3d 474, 482 (Cal. App. 3d Dist. 2008). Here, Defendant has not suggested that the Profiler Plus or COfiler kits do not comply with general PCR/STR methodology. The only distinction between the Profiler Plus and COfiler kits and other test kits already subject to Daubert analysis is that the Profiler Plus and COfiler kits analyze more loci than prior testing kits. The PCR/STR methodology remains the same as the other test kits. In fact the only difference is that the Profiler Plus and Cofiler are more accurate because they analyze more loci.

3. The Known or Potential Rate of Error of a Particular Scientific Technique

According to evidence submitted by the Government, FBI standards, and other case law, the known potential rate of error for PCR/STR testing is virtually zero. The Government has submitted the declaration of Charlotte Word, a forensic DNA consultant and former Laboratory Director at Orchid Cellmark who has testified in over 250 cases. Word states that when proper procedures are employed, PCR/STR testing will "generate[] results that may always be relied upon as accurate." [Word Decl. ¶ 22]. In Morrow, the Court found that "... if an analyst follows the FBI protocol and uses properly calibrated instruments, there is essentially zero rate of error, i.e., obtaining a wrong result, within established measurement conditions." Morrow, 374 F. Supp. 2d at 67. The LAPD SID follows the FBI Standards.*fn21 [Word Decl. ¶ 17]. Therefore, this factor favors admissibility.

The rate of error described above excludes any potential human error. Daubert concerns the methodology of the scientific evidence, and is not normally concerned with human error in applying the methodology.

According to some Circuits, Daubert only excludes evidence in such a case where the methodology "was so altered [by a deficient application] as to skew the methodology itself.'" United States v. Beasley, 102 F.3d 1440, 1448 (8th Cir. 1996).*fn22 Here, Defendant presents arguments that the DNA evidence should be inadmissible because the Government has failed to include in its statistical computation an estimate of the lab error rate and has failed to apply reliable scientific procedures. The argument regarding the lab error rate reflects a "fundamental misunderstanding of the principles of Daubert. The Court's concern under Rule 702 and Daubert is the reliability of the scientific methodology at issue, not the reliability of the laboratory performing the test." Morrow, 374 F. Supp. 2d at 67. Thus, such challenge to the lab's error rate, actually "challenge[s] the proficiency of the tester rather than the reliability of the test. Such challenges go to the weight of the evidence, not its admissibility." Id.

Human error in testing for this particular case might only render the evidence inadmissible if "the methodology "was so altered [by a deficient application] as to skew the methodology itself.'" Beasley, 102 F.3d at 1448. See also Morrow, 374 F. Supp. 2d at 68. In Morrow, the defendant's claims of sample mishandling were not sufficient to exclude the evidence under Daubert. The Court stated, "If actual or potential human errors do not rise to this level, they simply go to the weight of the DNA evidence proffered." Id. ///

Here, Defendant alleges various errors in the lab procedures, but he has not alleged any specific error in the testing for this case. These arguments are relevant to assess the weight of the evidence, but not its admissibility. For example, in United States v. Hicks, 103 F.3d 837, 846 (9th Cir. 1996), the Court found that claims about likelihood of contamination go to weight, not admissibility.*fn23

Moreover, Defendant does not make any specific allegations of improper procedures applied in the testing done in his case. Instead he makes various arguments about the procedures followed by the lab, in general.*fn24 As shown above, the LAPD SID follows the FBI Standards. These Standards are and have been determined as reliable. There is no evidence that accepted protocol was inadequately followed in this case. While, Defendant cites other standards that may very well be more cautious, this is not sufficient to deem the method employed here as unreliable. Instead, any allegations of improper procedures should go to the weight of the evidence and be further explored on cross-examination or expert witness testimony. See also Chischilly, 30 F.3d at 1154 ("With regard to admissibility, the mere existence of scientific institutions that would interpret data more conservatively scarcely indicates a 'lack of general acceptance' under Daubert...").*fn25

Therefore, this Court DENIES Defendant's Motion to exclude the evidence derived from the Government's use of PCR/STR testing and use of the Profiler Plus and COfiler kits. Moreover, this Court DENIES Defendant's request for a Daubert hearing because the Court is not required "to conduct a pre-trial evidentiary hearing if the expert testimony is based on well-established principles." United States v. Cooper, 91 F. Supp. 2d 79, 82 (D.D.C. 2000) (citing United States v. Nichols, 169 F.3d 1255, 1263 (10th Cir.).

C. Daubert and Rule 702 Challenges to the Statistics Associated with a "Cold Hit" DNA Case

Defendant argues that any testimony about the random match probability or likelihood ratio statistics set forth in the LAPD SID report is inadmissible because the use of such statistical devices in a "cold hit" case is unreliable and not generally accepted in the scientific community.

The likelihood ratio approach or a random match probability approach are often used in probable cause cases, in which DNA from a crime scene is compared directly to the DNA profile of a known suspect. If the suspect's profile matches the crime scene profile, then a calculation is performed to determine the statistical significance of a match between the two profiles. This calculation is completed using the "product rule." The product rule takes the expected frequencies of the set of markers (alleles) at a discrete, identified set of locations (loci), from the evidence profile and multiplies those frequencies together to get the random match probability ("RMP") for that profile. The RMP represents the chance that a single randomly selected unrelated individual would match the evidence profile by coincidence. The RMP also represents the rarity of a particular DNA profile in the population.

In contrast, a "cold hit" case arises when the DNA profile from a crime scene is not compared to a known suspect; but rather, to DNA profiles in a computer database. Defendant argues that the RMP in a cold hit case does not properly calculate the likelihood that a coincidental erroneous match has occurred. In simpler terms, the chance of a coincidental match is elevated in a cold hit case. Thus, in a cold hit case,

[T]he product rule derived number no longer accurately represents the probability of finding a matching profile by chance. The fact that many profiles have been searched increases the probability of finding a match. Instead, the 'database match probability' more accurately represents the chance of finding a cold hit match.

United States v. Jenkins, 887 A.2d 1013, 1018 (D.C. 2005). Importantly, the statistic representing the rarity of the DNA profile remains unchanged in a cold hit case. Id. at 1018 n.7. Therefore, the issue becomes whether expressing the rarity statistic is sufficient to meet Daubert and Rule 702.*fn26

The real issue ultimately concerns a relevance inquiry rather than a Daubert analysis. Daubert focuses solely "on principles and methodology, not the conclusions that they generate." Daubert, 509 U.S. at 593. The final stage in PCR/STR testing is statistical calculation to express the significance of the DNA match. Use of the product rule to calculate the rarity statistic easily meets the standards of Daubert. There is no argument, nor does Defendant argue otherwise, that the method in calculating the rarity statistic is unreliable. The issue is whether the rarity statistic has any relevance without the random match statistic. As the DC Court of Appeals and the California Supreme Court found, this is an issue of relevance, not methodology. United States v. Jenkins, 887 A.2d 1013, 1023-1024 (D.C. 2005); People v. Nelson, 43 Cal. 4th 1242, 1263-1264 (2008) (finding that the use of the product rule in a cold hit case is not the application of a new scientific technique subject to further Kelly (or Kelly-like) test). This Court adopts the reasoning of Jenkins which states:

At the heart of this debate is a disagreement over the competing questions to be asked, not the methodologies used to answer those questions. The rarity statistic, the database match probability, and the Balding-Donnelly approach each answer unique and potentially relevant questions. More importantly, there is no controversy in the relevant scientific community as to the accuracy of the various formulas. ... The rarity statistic accurately expresses how rare a genetic profile is in a given society. Database match probability accurately expresses the probability of obtaining a cold hit from a search of a particular database. Balding-Donnelly accurately expresses the probability that the person identified through the cold hit is the actual source of the DNA in light of the fact that a known quantity of potential suspects was eliminated through the database search. ... Instead, the arguments raised by each of the proponents simply state that their formulation is more probative, not more correct.

Jenkins, 887 A.2d at 1022-1023. Thus, there is no issue under Daubert because the Government intends to use the rarity statistic to express how rare the genetic profile is in a given society.*fn27

Additionally, the rarity statistic is clearly relevant because it informs the jury about how rare the DNA profile is in a population and thus how likely it is that someone other than Defendant was the source of the evidence.

Therefore, Defendant's request for a Daubert hearing to challenge to the statistics associated with this "cold hit" case is DENIED.

D. The FBI's Population Estimates are an Accurate Expression of the Rarity of a Genetic Profile

Defendant argues that improper restriction of statistics to Caucasians, African-Americans, and Southeast Hispanics renders any statistical probability calculation inadmissible.

However, this assertion is untrue because LAPD SID used population frequency estimates for ten distinct populations. [Opposition at 17; Exhibit D: Statistical Reports]. LAPD SID used ten population frequencies, and ultimately used the frequency from the ethnic group that reflected the most common frequency (thereby favoring Defendant). Therefore, Defendant's argument is DENIED.

E. Lab Error Rate

Defendant argues that LAPD SID has lab error rate that should be used to adjust the population frequency estimates used to assess the significance of the DNA match. This argument fails for two reasons.

First, Defendant has not alleged any lab error specific to this case. Second, the scientific community has found that "a calculation that combines error rates with match probabilities is inappropriate." People v. Reeves, 109 Cal. Rptr. 2d 728, 751 (Cal. Ct. App. 2001); Roberts v. United States, 916 A.2d 922, 930 (D.C. 2007). Therefore, Defendant's request is DENIED.

F. Source Attribution Testimony

Defendant argues that the Government impermissibly intends to use "source attribution" when presenting expert testimony explaining the DNA test.

The Government responds that it does not intend to give a source attribution. Word's Declaration states that the DNA report from Criminalist Mastrocovo states,

The DNA profile obtained from item #166 'Michael Williams' matches the major DNA profile obtained from item # 141A (Analyzed Evidence Report dated 6/15/04). The combination of genetic marker types exhibited by the major DNA profile of item #141A occurs in approximately 1 in 10 quadrillion unrelated individuals.

This is not a source attribution statement. Therefore, Defendant's request is DENIED WITHOUT PREJUDICE.

G. Rule 901(b)(9)

Defendant requests that this Court require the Government to lay an adequate foundation before any of its computer generated DNA evidence is admitted into evidence.*fn28 Specifically, Defendant cites Federal Rule of Evidence 901(b)(9), and asks that the Court require compliance with this rule.*fn29

While Rule 901(b)(9) certainly describes one way to authenticate the evidence at issue. It is not a mandatory rule for authenticating the type of evidence at issue. It specifically states that it is not to be used "by way of limitation." The Court should not unduly restrict the Government in authenticating its evidence. The Government will have to properly authenticate its evidence under Rule 901 in order for it to be admitted. If the Government fails to do so, then Defendant can object accordingly. Therefore, Defendant's request is DENIED.

7. Defendant Johnson's Motion to Adopt Co-Defendant's Motion to Exclude DNA Test Results and Request For Daubert Hearing [614]

To the extent applicable, the Court GRANTS Defendant Johnson's Motion to Exclude DNA Test Results and Request For Daubert Hearing.

8. Defendant Williams' Motion to Join in Defendant Johnson's Request for Compliance with Court Order or Imposition of Sanctions for Continued Non-Compliance Defendant Williams' Motion is GRANTED.


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