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8/6/2019 Jorge Torrez DNA motion
http://slidepdf.com/reader/full/jorge-torrez-dna-motion 1/6
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
UNITED STATES OF AMERICA ) CRIMINAL NO. 1:11-cr-115)
v. ) Hon. Liam O'Grady)
JORGE AVILA TORREZ, ))
Defendant. )
GOVERNMENT’S MOTION FOR BUCCAL SWAB AND HAIR SAMPLE
COMES NOW the United States of America, by and through its
attorneys, Neil H. MacBride, United States Attorney for the
Eastern District of Virginia, Michael E. Rich, Jonathan L. Fahey
and James L. Trump, Assistant United States Attorneys, and moves
the Court to issue an order compelling the defendant to submit to
the taking of saliva samples through buccal swabs and submitting
a hair sample. In support of its motion, the government relies
on the following points and authorities. The defendant opposes
this motion.
A. Background
1. On May 27, 2011, the defendant was charged with murder,
in violation of Title 18 United States Code, Section 1111, for
the July 2009, murder of Amanda Snell. In the indictment
returned by the grand jury, several aggravating factors were
found, potentially making this a capital case.
2. In May of 2005, two young girls were murdered in Zion,
Illinois. One was eight years old and the other was nine. Semen
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was recovered from one of the victims and a DNA profile was
developed from it by the state laboratory in Illinois. A private
laboratory also analyzed the forensic material and developed a Y-
DNA profile from several places, including the same location of
the semen on the victim’s body where the state laboratory
developed a DNA profile. In 2010, a Combined DNA Index System
(CODIS) hit linked the DNA recovered from that victim in Zion,
Illinois, to the defendant, who was pending trial in Arlington
County for rape, sodomy, abduction, robbery and related firearms
offenses. CODIS is a national system that stores DNA profiles
submitted by law enforcement.
3. The CODIS hit only compared the DNA from the defendant
to the forensic DNA found by the state laboratory in the Illinois
case. Because CODIS did not have a Y-profile of the defendant in
its data base, it did not compare Torrez' Y-profile to the Y-
profile found by the private laboratory.
4. The Government would like to obtain an additional DNA
sample from the defendant in order to have an independent
laboratory develop the defendant's Y-DNA profile in order to
compare it to the Y-profile obtained from the forensic evidence
in the Illinois murders. This can be done in the presence of the
defendant's counsel by simply having government agents use a
buccal swab to obtain saliva from the inside of the defendant's
cheek.
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5. In addition, an unknown hair was found in the barracks
room where Amanda Snell was murdered. The Government would like
to compare this hair to the defendant’s hair. In order to make
the comparison, the Government needs a known sample of the
defendant’s hair. This can be also be obtained in the presence
of the defendant’s attorney by removing hairs from the
defendant’s head.
B. Legal Discussion
1. The Court should grant the government’s motion because
there is probable cause to believe that a buccal swab/saliva
sample from the defendant will produce evidence of the defendant
involvement in the Illinois murder. Further, the taking of a
buccal swab/saliva sample involves only a minimal personal
intrusion of the defendant. The Court should also grant the
government’s motion to compel the defendant to submit to the
taking of a hair sample to compare it to forensic evidence
recovered from the crime scene in the charged offense.
2. The leading case on the authority of the government to
obtain samples of bodily fluids from criminal defendants is
Schmerber v. California, 384 U.S. 757 (1966). There, the Supreme
Court upheld the taking of a blood sample from a suspected drunk
driver without a warrant. The Court found that probable cause
supported the search and seizure of the suspect’s blood and that
the test was reasonable in light of the routine nature of blood
test procedures. Id. at 1835-1836.
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3. Subsequent cases have addressed the permissibility of
compelling the production of other types of evidence under the
Fourth Amendment. See, e.g., Brooks v. United States, 494 A.2d
922, 924 (D.C. 1984) (citations omitted) (citing litany of cases
and noting that “[c]ases since Schmerber have repeatedly upheld
the principle that a man is not protected by constitutional
privilege from being compelled to stand up, sit down, walk, speak
or submit to photography or fingerprinting so long as these
disclose nothing about his knowledge.”); In re Rosahn, 671 F.2d
690 (2d Cir.1982) (upholding requirement for defendant to submit
to photographing and to provide hair samples); United States v.
Dionisio, 410 U.S. 1, 7, 15 (1973) (upholding use of grand jury
subpoena to obtain voice sample; no minimal requirement of
“reasonableness”); United States v. Mara, 410 U.S. 19, 21-22
(1973) (upholding use of grand jury subpoena to obtain
handwriting sample); United States v. Nicolosi, 885 F. Supp. 50,
55-56 (E.D.N.Y. 1995) (holding that the government must apply to
a judicial officer for a court order directing the defendant to
provide a saliva sample); S.A. v. M.A., 531 A.2d 1246, 1254 (D.C.
1987) (finding that “under reasonable circumstances,” which must
involve more than “mere suspicion” of nonpaternity, a wife and
child can be compelled to submit to testing upon request by a
husband contesting paternity in the context of a divorce or
support proceeding).
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4. Here, there is more than ample basis supporting the
government’s request for an order compelling the defendant to
produce a saliva sample for DNA comparison through the use of
buccal swabs and to submit to the taking of a hair sample.
WHEREFORE, the government respectfully requests that the
Court issue the attached proposed Order, which requires the
defendant to submit to the taking of buccal swabs and a hair
sample from his person.
Respectfully submitted,
Neil H. MacBrideUnited States Attorney
\s\Michael E. RichJames L. TrumpJonathan L. FaheyAssistant United States AttorneyVSB: 33808Attorney for the United States
United States Attorney’s Office2100 Jamieson AvenueAlexandria, Virginia 22314Tel: (703) 299-3758Fax: (703) [email protected]
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CERTIFICATE OF SERVICE
I hereby certify that on the ____ day of June 2011, I
electronically filed the foregoing with the Clerk of Court using
the CM/ECF system, which will send a notification of such filing
(NEF) to the following:
Joseph J. McCarthy, Esq.Delaney, McCarthy & Colton, P.C.510 King Street, Suite 400Alexandria, Virginia 22314Tel: (703) 549-9701 or 836-8989Fax: (703) 836-4285Cel: (571) [email protected]
Michael S. Nachmanoff, Esq.Federal Public Defender1650 King Street, Suite 500Alexandria, Virginia 22314Tel: (703) 600-0860Fax: (703) [email protected]
\s\Michael E. RichAssistant United States AttorneyVSB: 33808Attorney for the United StatesUnited States Attorney’s Office2100 Jamieson AvenueAlexandria, Virginia 22314Tel: (703) 299-3758Fax: (703) [email protected]
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