U.S. v. Morrow

374 F.Supp.2d 51

UNITED STATES of America, v. Miquel MORROW, et al., Defendants.

No. CRIM.A. 04-355CKK.

United States District Court, District of Columbia.

June 9, 2005.

Barbara E. Kittay, U.S. Attorney's Office, Washington, DC, for United States of America.

Joanne Roney Hepworth, Law Offices of Joanne Roney Hepworth, William Gregory Spencer, Leta Adia McCollough, Federal Public Defender, Tony L. Booker, Law Offices of Tony L. Booker, Joseph Edmund Beshouri, Bravitt Cola Manley, Jr., A. Eduardo Balarezo, Law Offices of A. Eduardo Balarezo, Washington, DC, Anthony Douglas Martin, Greenbelt, MD, Atiq Rahman Ahmed, Atiq R. Ahmed,P.A., Silver Spring, MD, for Defendants.

MEMORANDUM OPINION

KOLLAR-KOTELLY, District Judge.

Currently before the Court are several filings by the parties that relate to the Government's planned use of certain DeoxyriboNucleic Acid ("DNA") evidence in the trial. Specifically, the Court is confronted with: (1) Defendants' Joint Objections to the Government's Proposed DNA Evidence, filed on April 5, 2005; (2) Government's Opposition to Defendants' Joint Objection to the Government's Proposed DNA Evidence, filed on April 8, 2005; (3) Government's Supplemental Opposition to Defendants' Joint Objection to the Government's Proposed DNA Evidence, filed on April 11, 2005; (4) Defendant Malvin Palmer's Response to Government's DNA Pleadings, filed on April 13, 2005; (5) Defendant Miquel Morrow's Reply to the Government's Supplemental Opposition to the Defendant's Joint Objections to the Government's Proposed DNA Evidence, filed on April 14, 2005; and (6) Government's Reply to Defendant Palmer's and Morrow's Responses to the Government's Proposed DNA Evidence, filed on April 14, 2005.

These filings deal to a substantial degree with a question posed by the Court in an April 7, 2005 Scheduling Order. See United States v. Morrow, Crim. No. 04-355 (D.D.C. Apr. 7, 2005) (scheduling order re: DNA evidence). In relevant part, the Court ordered legal briefing addressing two major issues:

(1) whether the Government, in its direct case, may pro-actively present, through an expert, scientific evidence that does not conclusively identify a defendant, but also does not exclude a defendant as a possible match; and (2) whether the Government, if it cannot present such evidence in its direct case, may bring out such information during cross-examination or re-direct if the defense has opened the door by affirmatively arguing that the scientific evidence exonerates or provides no link to the defendants.

Id. at *1. Central to the Court's concerns was the impact of the Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), on DNA match probability data. Specifically, the Court was interested in the admissibility of DNA match probability information that fell below a certain level of statistical significance. In making this inquiry, the Court sought to establish the broad parameters for DNA evidence admission in the upcoming trial; it did not seek to make a final ruling concerning the admissibility of all DNA evidence. Upon a review of the legal briefing, some of the statistical probabilities involved in this case, and the relevant case law, the Court concludes that DNA evidence indicating a relatively low match probability significance may be introduced in the Government's presentation of its direct evidence, subject to certain parameters and restrictions.

I: BACKGROUND

On November 9, 2004, the Grand Jury in the above-captioned case returned a twenty-one count Superseding Indictment against the six remaining defendants in this case — Miquel Morrow, Lionel Stoddard, Carlos Aguiar, Bryan Burwell, Aaron Perkins, and Malvin Palmer (collectively, "Defendants").¹ Count I of the Indictment charges all six Defendants with a conspiracy to participate in a Racketeer Influenced Corrupt Organization ("RICO"), in violation of 18 U.S.C. § 1962(d), based upon alleged racketeering acts involving armed robberies of four banks in the District of Columbia (Acts 1-4) and two banks in the District of Maryland (Acts 5-6), as well as three acts involving murder (Acts 7-9). Count II charges all six Defendants with a conspiracy to commit offenses against the United States. Substantive charges involving armed bank robbery (Counts III, VIII, XII, and XVII), using or carrying a firearm during a crime of violence (Counts IV, IX, XIII, XVIII), unlawful possession of a firearm by a felon (Counts V-VII, X-XI, XIV-XVI, XIX), and assault with intent to kill (Counts XX-XXI), are charged against the specific defendants named in those counts. The armed robberies were allegedly accomplished while the Defendants brandished weapons and wore body armor, hoods, masks, bandanas, and heavy clothing to avoid identification. The assaults also involved the use of firearms.

As part of the planned prosecution of Defendants, the Government intends on introducing expert testimony connecting the DNA of certain defendants with DNA material left on specific items of evidence. See Gov'ts Notice of Intention to Introduce Expert Testimony; Gov'ts Suppl. Opp'n at 1. In January 2005, the Government submitted a large volume of DNA discovery materials to defense experts, including the results of testing done at the FBI Laboratory for DNA evidence. Gov'ts Opp'n at 1. As noted in the DNA discovery materials, the FBI Laboratory used the Polmerase Chain Reaction ("PCR") amplification method and analysis of Short Tandem Repeats ("STR") to test DNA samples in this case. Gov'ts Suppl. Opp'n at 2. To enable a fact-finder to understand the significance of the results, the FBI also calculated the coincidental, or "random match," probabilities that the DNA profile in the evidence sample would be found at random in the population based on population frequency data for four population groups — that is, African-American, Caucasian, Southeastern Hispanic, and Southwestern Hispanic population groups. Id.

Each defendant in this case has a separate DNA expert, save for Defendants Perkins and Palmer, who share an expert. After the Government submitted its DNA discovery materials, these defense experts then conducted a review of the Government's DNA discovery. Upon such a review, Defendants have argued that "it is clear that some of the government's proffered DNA reports are of marginal statistical significance." Defs.' Joint Objections at 1, ¶ 2.

In response, the Government explains that its various DNA reports "showed varying results for different items, from the conclusion that a specific defendant was the contributor of a sample to the conclusion that a respective defendant could or could not be excluded as a potential contributor." Gov'ts Opp'n at 1. According to the Government, "[t]he items to which defendant Morrow appears to be objecting, see Defendants' Motion, ¶ 3, are those items where defendant could not be excluded as a potential contributor." Id. Going into more detail in its Supplemental Opposition, the Government notes that it has obtained DNA evidence in this case that shows a spectrum of five different kinds of results. Gov'ts Suppl. Opp'n at 2. These results range from:

(1) to a reasonable degree of scientific certainty, defendant was the contributor of the sample; (2) defendant is potentially the major contributor in a mixed sample, e.g., DNA from more than one individual; (3) defendant cannot be excluded as a potential contributor of the sample; (4) defendant cannot be excluded as potential major or minor contributor in a mixed sample; and (5) defendant was excluded as a potential contributor of the sample.

Id. at 2-3. When there was a "positive result," i.e., when a DNA sample fit into categories 1-4, the FBI Laboratory's report provides a statistical estimate of the probability of selecting an unrelated individual at random from the four population groups that would have the same DNA profile as observed in the item of evidence at issue. Id. at 3. According to the Government, "[t]hese numbers range from 1 in 280 billion for the conclusion that the defendant was the contributor, to such numbers ranging from as high as 1 in 16 billion to lower ratios such as 1 in 2,400 where a defendant is potentially a major contributor in a mixed sample, to such numbers as 1 in 20, or even as low as 1 in 1, where a defendant cannot be excluded as a contributor of a sample." Id. The Government emphasizes that it does not intend to discuss any instances where a defendant could not be excluded as a potential contributor in its opening statement, but that it intends to introduce such evidence at a later point. See Gov'ts Resp. to Def. Palmer's and Def. Morrow's Resps. at 2.

Specifically, Defendant Morrow objects to the admission of four DNA samples: (1) Q62, which apparently shows that Defendants Morrow and Perkins cannot be excluded as potential contributors, although the probability of selecting an unrelated individual is 1:3 in the African-American population; (2) Q219, which shows that Defendants Morrow, Palmer, and Burwell cannot be excluded, although the probability of selecting an unrelated individual is 1:6 in the African-American population; (3) Q279, which shows that Defendant Morrow cannot be excluded, although the probability of selecting an unrelated individual is 1:12 in the African-American population; and (4) K5, which shows that Defendant Morrow cannot be excluded, although the probability of selecting an unrelated individual is 1:1 in all populations. See Def. Morrow's Reply at 1, ¶ 1. At this time, Defendant Palmer also objects to the admission of three DNA samples: (1) Q219, as noted above in Defendant Morrow's objections; (2) Q319, which apparently indicates presence of DNA from more than one individual, including possibly Defendant Palmer, although the probability of selecting an unrelated individual is 1:7 in the African-American population; and (3) Q104, which indicates the presence of...