Jorge Torrez DNA motion

8/6/2019 Jorge Torrez DNA motion

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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

Case 1:11-cr-00115-LO Document 14 Filed 06/30/11 Page 1 of 6 PageID# 30



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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mailto:[email protected]




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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Jorge Torrez DNA motion