Free Response to Motion - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona Timothy T. Duax Assistant U.S. Attorney Arizona State Bar No. 012694 Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America CR-03-1167-PHX-DGC Plaintiff, v. Kevin J. Augustiniak, Defendant. UNITED STATES' RESPONSE TO DEFENDANT AUGUSTINIAK'S MOTION TO DISMISS INDICTMENT OR ALTERNATIVELY, MOTION TO PRECLUDE USE OF DNA EVIDENCE AT TRIAL

The United States of America, by and through undersigned counsel, responds to defendant

16 Augustiniak's Motion to Dismiss Indictment or alternatively, Motion to Preclude use of DNA 17 Evidence at Trial, and respectfully requests this Court deny defendant's motion. The position 18 of the United States is that the DNA sample removed from victim Cynthia Garcia's fingernails 19 had no exculpatory value that was apparent before the evidence was consumed. Furthermore, 20 as the DNA sample would support but one test, there is no evidence the consumption of the 21 evidence was the product of bad faith. The position of the United States is set forth more 22 completely in the attached Memorandum of Points and Authorities. Respectfully submitted this 13th day of January, 2006. 23 24 25 26 27 28 PAUL K. CHARLTON United States Attorney District of Arizona s/ Timothy Duax TIMOTHY T. DUAX Assistant U.S. Attorney

Case 2:03-cr-01167-DGC

Document 1052

Filed 01/13/2006

Page 1 of 6

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MEMORANDUM OF POINTS AND AUTHORITIES

2 I. LAW AND ARGUMENT: 3 Despite the lengthy and largely extraneous statement of facts in the defendant's motion, the

4 defendant never alleges that the DNA sample at issue could have supported additional testing. 5 Furthermore, the defendant at most acknowledges that the DNA sample had "potentially 6 exculpatory value." (See, Defendant's Motion, page 11, line 1.) As a result, there was no due 7 process violation when DPS consumed the entire sample of DNA material. 8 The test as to whether evidence destruction by the government rises to the level of a due

9 process violation was announced by the Supreme Court in two longstanding cases. In California 10 v. Trombetta, 467 U.S. 479, 489, 104 S.Ct. 2528, 2534m 81 L.Ed. 413 (1984), the Court held 11 that the defendant's due process rights are violated only when destroyed evidence had both 12 "exculpatory value that was apparent before the evidence was destroyed, and be of such a nature 13 that the defendant would be unable to obtain comparable evidence by other reasonably available 14 means." 15 In the present case, the DNA sample did not have any exculpatory value, apparent or

16 otherwise, prior to testing. In fact, the DNA testing of the cellular material was necessary to 17 determine whether the evidence was inculpatory or exculpatory. It was equally possible the DNA 18 testing could have resulted in nothing of evidentiary value, being neither inculpatory nor 19 exculpatory. Trombetta requires that the destroyed evidence have apparent exculpatory value 20 prior to its destruction in order to rise to a potential due process violation. The Trombetta test 21 is simply not met by the facts of the case at bar. Therefore, the bad faith requirement prong of 22 Youngblood should not be reached in this Court's analysis. 23 Additionally, "unless a criminal defendant can show bad faith on the part of police, failure

24 to preserve potentially useful evidence does not constitute a denial of due process of law." 25 Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 337, 102 L.Ed.2d 281 (1988). Requiring 26 a defendant to show bad faith, "both limits the extent of the police's obligation to preserve 27 evidence to reasonable bounds and confines it to that class of cases where the interests of justice 28 most clearly require it, i.e., those cases in which the police themselves by their conduct indicate
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1 that the evidence could form a basis for exonerating the defendant." Id. "Youngblood's bad 2 faith requirement dovetails with the first part of the Trombetta test:" United States v. Cooper, 3 983 F.2d 928, 931 (9th Cir. 2001). "The presence of absence of bad faith turns on the 4 government's knowledge of the apparent exculpatory value of the evidence at the time it was lost 5 or destroyed." Id. (Citing Youngblood, 488 U.S. at 56-57 n. *, 109 S.Ct. at 336-337 n. *). 6 In the present case, defendant cannot meet the burden set forth in Youngblood. The

7 government did not act in bad faith in testing the material. It was simply impossible to preserve 8 the cellular material for further testing. The amount of cellular material collected was 9 completely consumed by the DPS laboratory during testing. This fact is not an example of bad 10 faith on the part of the government, it is a product of legitimate DNA testing procedures. The 11 collected fingernail clippings did not contain enough cellular material to preserve to perform 12 additional testing procedures. The destruction of the evidence in this case is far from an example 13 of government authorities destroying much more tangible evidence that could easily be 14 preserved for defense inspection, such a vehicle or clothing of some sort. 15 Furthermore, defendant has been provided with the DNA examination notes and procedures

16 as well as laboratory accreditation materials. Every step of the DNA analysis was carefully 17 documented by the examiner and available for review by the defendant and any DNA expert he 18 chooses to hire for a quality assurance analysis. 19 Although the 9th Circuit is quiet on the subject of cellular material consumed during

20 government testing, the 3rd Circuit has addressed the issue in United States v. Stevens, 935 F.2d 21 1380 (3rd Cir. 1991). In that case, the government and defense entered a consent agreement 22 signed by the magistrate which ordered the FBI to preserve saliva samples, if possible, taken 23 from the victim, for future testing by the defense. Id., at 1387. One saliva sample contained 24 small semen samples which the FBI determined to be too small to test for DNA. Id. The lead 25 investigator then instructed the lab to do serological analysis on the semen samples. Serological 26 tests were done, proving inconclusive, and in the process the entire testable sample was 27 consumed. Id. The defendant was left with no sample to test and complained that his due 28 process rights were violated, requiring dismissal. Id.
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The 3rd Circuit disagreed: "After reviewing the record and Steven's allegations, we hold that

2 the district courts' conclusion that the government acted in good faith when it elected to perform 3 serological testing on Smith's saliva sample is not clearly erroneous." Id., at 1388. The court 4 relied on Youngblood and indicated that nothing from the District Court's record showing the 5 government suspected that the saliva/semen sample would reveal a basis for exonerating the 6 defendant. Id. "This test could either inculpate or exculpate Stevens; no one knew." Id. 7 The case at bar is analogous to Stevens. Here, there was a small amount of cellular material

8 recovered from the victim's fingernail clippings. DNA testing was possible however it 9 consumed the entire sample leaving none for the defendant to test as requested by his counsel. 10 Nothing however, gave the government any indication that the cellular material would exonerate 11 Mr. Augustiniak. Just like in Stevens, the testing of the sample would either inculpate, exculpate 12 or have no impact on him. The government tested the material in good faith. The samples were 13 consumed through the normal testing procedures. Because defendant could not conduct his own 14 test does not "bespeak of bad faith. It just indicates that unfortunately , there wasn't a sufficient 15 sample. . ." Id., at 1387-1388 (quoting the District Court's decision denying Steven's Motion to 16 Dismiss.). 17 II. CONCLUSION: 18 Applying the legal standards set forth in Trombetta and Youngblood to the facts of this case,

19 it is abundantly clear that the defendant's due process rights were not violated. The absence of 20 any apparently exculpatory value in the DNA sample prior to testing ends the due process 21 inquiry per Trombetta. However, if this Court affords the defendant the benefit of the additional 22 bad faith analysis set forth in Youngblood, the defendant's claim still lacks merit. There simply 23 wasn't enough DNA to conduct two tests. The government did not destroy or lose the evidence, 24 it tested the evidence, which was the only way to extract anything of evidentiary value from the 25 sample. It is highly unlikely the defendant would be arguing for preclusion of this evidence if 26 the results of the testing had exonerated him. 27 28
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For the reasons stated herein, the United States respectfully requests this Court deny

2 defendant Augustiniak's Motion to Dismiss Indictment and Motion to Preclude use of DNA 3 Evidence at Trial in their entirety. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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Respectfully submitted this 13th day of January, 2006. PAUL K. CHARLTON United States Attorney District of Arizona s/ Timothy Duax TIMOTHY T. DUAX Assistant U.S. Attorney

1 I hereby certify that on January 13, 2006, I electronically transmitted the attached 2 document to the Clerk's Office using the CM/ECF system for filing and 3 transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: 4 Joseph E. Abodeely, [email protected], [email protected] 5 David Zeltner Chesnoff, [email protected] 6 Carmen Lynne Fischer, [email protected], [email protected] 7 Patricia Ann Gitre, [email protected], [email protected] 8 Alan Richard Hock, [email protected] 9 Thomas M Hoidal, [email protected], [email protected] 10 Barbara Lynn Hull, [email protected] 11 12 David M Ochoa, [email protected] 13 Jose S Padilla, [email protected], [email protected] 14 Mark A Paige, [email protected] 15 James Sun Park, [email protected], [email protected],[email protected] 16 C Kenneth Ray, II, [email protected] 17 Brian Fredrick Russo, [email protected], [email protected] 18 Michael Shay Ryan, [email protected], [email protected] 19 Philip A Seplow, [email protected], [email protected] 20 Robert Storrs, [email protected], [email protected] 21 s/ Timothy Duax 22 TIMOTHY T. DUAX 23 24 25 26 27 28
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