                    UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF COLUMBIA


UNITED STATES OF AMERICA,

          v.

ROBERT EVANS,                       Criminal No. 18-00103 (EGS)
CORRY BLUE EVANS,
CANDY EVANS, and
ARCHIE KASLOV,

               Defendants.

                         MEMORANDUM OPINION

     A federal grand jury indicted Corry Blue Evans and various

members of his family on multiple offenses including extortion,

money laundering, and bank fraud. Pending before the Court is

the government’s motion for an order to compel Corry Blue Evans

and his co-defendants, including Candy Evans, to provide samples

of their DNA. The government seeks to take buccal swabs to

compare defendants’ DNA to DNA discovered on two weapons: a

revolver recovered during the execution of a search warrant at

two of his co-defendants’ residences; and a shotgun recovered

from another co-defendant’s residence by consent. Because the

government lacks individualized suspicion that this search will

lead to evidence of a crime committed by Corry Blue Evans or

Candy Evans, the search is unreasonable under the Fourth

Amendment. Therefore the government’s motion for an order

requiring them to submit to a buccal swab is DENIED.
I. Background

     Corry Blue Evans, along with other members of his family,

were charged in a thirteen-count indictment with multiple

offenses including extortion, wire fraud, and bank fraud. See

Indictment, ECF No. 1. Corry Blue Evans and Robert Evans’

charges include conspiracy to commit extortion, bank fraud, wire

fraud, and money laundering; and interference with interstate

commerce by extortion. See generally id.   Candy Evans is charged

with several counts related to witness tampering. Id. ¶¶ 50–55.

     The government alleges that Corry Blue Evans and his co-

defendants conspired to commit extortion, bank fraud, and wire

fraud for the purpose of enriching themselves. Id. ¶ 31–33. The

indictment also alleges that the defendants enlisted Hollie

Nadel, a co-defendant, into a scheme in which she would tell

certain individuals that she owed large sums of money to

nefarious actors, and that these actors would injure, kidnap,

and unlawfully confine her unless the debt was paid. Id. ¶ 34–

35. One such individual, Daniel Zancan, obtained money from two

companies under false pretenses to make payments to these

actors, who were in fact the defendants and their co-

conspirators. Id. The co-conspirators then made false statements

and provided false documents to financial institutions to

conceal the true nature of the payments from Mr. Zancan. Id.



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     Six days after the grand jury returned a sealed indictment

against Ms. Nadel, the FBI executed several search warrants in

Manhattan, where the defendants reside. Gov’t’s Mot., ECF No.

143 at 3. 1 The agents searched several locations including the

residences of many of the defendants. Id. During the execution

of a search warrant at Archie Kaslov and Candy Evans’ residence,

agents recovered a firearm from beneath a mattress, as well as

what the agents believe to be monetary proceeds from criminal

activity. Id. Separately, Tony John Evans, another co-defendant,

advised law enforcement that he kept a shotgun in his apartment,

which he located and surrendered to law enforcement. Id. Tony

John Evans purchased both firearms. See Ex. A to Gov’t’s Mem. in

Aid of Sent., ECF No. 105-1 (purchase receipts).

     The government submitted both recovered firearms for DNA

testing. Gov’t’s   Mot., ECF No. 143 at 4. With respect to the

firearm recovered under the mattress at Candy Evans’ residence,

the FBI lab recovered male DNA that the government states is

suitable for comparison purposes. Id. With respect to the

shotgun recovered from Tony John Evans’ residence, the FBI lab

recovered a mixture containing male and female DNA that the

government also states is suitable for comparison purposes. Id.




1When citing electronic filings throughout this Memorandum
Opinion, the Court cites to the ECF header page number, not the
original page number of the filed document.
                                 3
The government seeks to compare DNA samples of the defendants to

DNA recovered from the firearms. Id.

     The government filed its motion for a buccal swab on July

22, 2019. Gov’t’s Mot., ECF No. 143. As it noted in that motion,

Mr. Kaslov and Robert Evans did not oppose the government’s

request to take buccal swabs; Corry Blue Evans did not consent

to the government’s request to take buccal swabs; and Candy

Evans had not yet expressed a position at the time of the

filing. Id. at 1 n.1.

     On September 3, 2019, having received no opposition over a

month after the motion was filed, this Court granted the

government’s motion. ECF No. 173. Two weeks after the motion was

granted, during a status hearing, Corry Blue Evans orally moved

to late file an opposition to the motion and Mr. Kaslov and

Candy Evans orally joined that motion. The Court granted the

motion to late file, and Corry Blue Evans filed his opposition

on September 20, 2019. Def.’s Opp’n, ECF No. 184. One day later,

Mr. Kaslov withdrew his oral motion to join the opposition and

notified the Court that he consented to providing a buccal swab.

Archie Kaslov Notice, ECF No. 185. On September 23, 2019, Candy

Evans filed a notice formally joining and adopting Corry Blue

Evans’ opposition. Candy Evans Notice, ECF No. 186. And on

September 25, 2019, Robert Evans clarified that he was not

joining the motion and stated that he already had provided a

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buccal swab. Robert Evans Notice of Clarification, ECF No. 188.

Accordingly, the dispute before the Court is the motion as

applied to Corry Blue Evans and Candy Evans.

II. Discussion

     The Fourth Amendment provides that “[t]he right of the

people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not

be violated.” U.S. Const. amend. IV. The government’s compulsion

of a person to provide a DNA sample is a search under the Fourth

Amendment. Maryland v. King, 569 U.S. 435, 446 (2013) (stating

“using a buccal swab on the inner tissues of a person's cheek in

order to obtain DNA samples is a search”). “As the text of the

Fourth Amendment indicates, the ultimate measure of the

constitutionality of a governmental search is ‘reasonableness.’”

Id. (citation omitted). The application of “traditional

standards of reasonableness” requires a court to weigh “the

promotion of legitimate governmental interests” against “the

degree to which [the search] intrudes upon an individual's

privacy.” Id.

     There is surprisingly scant precedent in this Circuit

governing when the government’s attempt to compel a defendant to

provide a buccal swab oversteps the line of reasonableness

established in the Fourth Amendment. The government relies on

cases in this court which focus on requests for buccal swabs for

                                5
the purpose of connecting defendants charged with firearm

offenses to potential genetic material on a firearm, and to

connect a defendant to either the alleged victim of the crime or

other relevant evidence found at the crime scene. For example,

in United States v. Haight, No. 15-cr-88 (JEB), 2015 WL 7985008,

at *1 (D.D.C. Dec. 3, 2015), the government sought an order to

compel a defendant who was charged with drug and gun offenses to

provide a DNA sample to link that defendant to firearms that

were recovered at the scene of the crime. Id. at *1. The court

determined that the governmental interest in collecting the DNA

was “both [strong[] and . . . specific]” because it sought to

link the defendant to the firearms recovered by matching the

defendant’s potential genetic material on the firearms. Id.

Significantly, the defendant in Haight was charged with “eight

counts relating to guns and drugs.” Id. The DNA evidence was

relevant in that case because it could potentially provide

evidence that the defendant possessed the weapons; a fact which

clearly was relevant to the gun charge.

     Similarly, in United States v. Proctor, 230 F. Supp. 3d 1,

2 (D.D.C. 2017), the government sought an order to compel

several defendants to provide DNA evidence because it

“intend[ed] to compare [the defendants’] DNA profiles to any DNA

traces found on firearms recovered during a valid search of

locations over which each [d]efendant exercised dominion and

                                6
control.” The defendants in Proctor were charged with possession

of firearms and the government sought to compare each

defendants’ DNA only to any DNA recovered on the respective

firearm with whose possession each defendant was charged, not to

all the weapons seized in the case. Id. The DNA evidence was

relevant in Proctor because it was needed for comparison to

actual evidence in that case that related to the charges. Id.

     In United States v. Ausby, No.72-cr-67 (BAH), 2019 WL

3718942, at *1 (D.D.C. Aug. 7, 2019), the court granted a motion

for an order requiring the defendant to submit a buccal swab

when the government proffered evidence which “(1) link[ed] the

defendant’s gun to the murder weapon; (2) connect[ed] scented

oil vials found at the crime scene to the defendant; (3)

matche[d] a fingerprint from the crime scene to the defendant;

and (4) indicate[d] that the defendant engaged in premeditated

activity based on several eyewitnesses identifying the defendant

as being present outside [the victim’s] apartment in the days

prior to her murder.” In Ausby, the defendant successfully moved

to vacate a prior felony murder and rape conviction, and the

government was working to locate evidence for the defendant’s

new trial. Id. The government sought an order to compare the

defendant’s DNA to DNA that was recovered from the victim during

her autopsy conducted several years earlier. Id. Based on the

proffered evidence that linked the defendant to the crime scene

                                7
and to the murder weapon, the Court held that an order seeking a

buccal swab for comparison of the defendant’s DNA to DNA found

on the victim was reasonable under the Fourth Amendment. Id. at

*2–3.

     Finally, in United States v. Lassiter, 607 F. Supp. 2d 162,

167-68 (D.D.C. 2009), the government moved for an order to allow

a buccal swab to determine whether the defendant’s DNA matched

DNA recovered from an article of clothing in the area where the

victim was assaulted. The court found that the DNA evidence

“would be probative of the government’s assertion that [the

defendant] was at the crime scene and participated in the

assault of [the victim].” Id. at 167. In other words, the

government needed this evidence to link the defendant to the

crime scene. Id. As the Court explained, “given the violent

nature of the alleged acts in this case, the community's

interest in accurately determining guilt or innocence is

particularly strong.” Id. These cases illustrate that the Fourth

Amendment is not offended when the government seeks to compel a

buccal swab for the purposes of linking the defendant to

evidence that has relevance to the defendant’s guilt or

innocence of the charges against the defendant. In this case,

however, the government proffers no facts that support the

relevance of the possession of the weapons by Corry Blue Evans

or Candy Evans to the crimes with which they are charged.

                                8
     The government relies on Maryland v. King for the

proposition that if an individual is arrested for a serious

felony offense, then the government’s compulsion of a buccal

swab “following a valid arrest supported by probable cause . . .

even without individualized suspicion or other criminal conduct,

does not offend the Fourth Amendment.” See Gov’t’s Mot., ECF No.

143 at 5–6. Maryland v. King concerned a statutorily-mandated

requirement that state law enforcement take a buccal swab from

arrestees during a routine booking procedure for serious

offenses independent of a warrant or individualized suspicion.

569 U.S. 435. The Supreme Court determined that the government’s

legitimate governmental interest, mainly the “need for law

enforcement officers in a safe and accurate way to process and

identify the persons and possessions they must take into

custody,” substantially outweighed an arrestee’s interests in

limiting the minimal physical intrusion of the buccal cheek

swab. Id. at 463–66. The Supreme Court explained:

          DNA   identification   of   arrestees   is   a
          reasonable search that can be considered part
          of a routine booking procedure. When officers
          make an arrest supported by probable cause to
          hold for a serious offense and they bring [a
          person] to the station to be detained in
          custody, taking and analyzing a cheek swab of
          the arrestee's DNA is, like fingerprinting and
          photographing, a legitimate police booking
          procedure that is reasonable under the Fourth
          Amendment.

King, 569 U.S. at 465–66.

                                9
     The government’s reliance on King is unpersuasive for

several reasons. First, King does not directly control the

Court’s analysis because this case does not concern routine

booking procedures for serious offenses. See id. In this case,

the government requests authorization to conduct a buccal swab,

not as part of a legitimate booking process, but for the purpose

of obtaining evidence. The Court is not persuaded by the

government’s argument that the Fourth Amendment standard

approved in King for statutorily-mandated DNA collection

incident to arrest for serious offenses, occurring after every

arrest for a serious crime, applies to cases like the present

case in which the government searches a defendant well after his

or her arrest for the purpose of searching for evidence of a

crime. King stands only for the proposition that the

governmental interests in routine booking procedures for serious

offenses supported by probable cause outweigh the minimal

intrusion of a buccal swab. King, 569 U.S. at 465–66; id. at 463

(stating that “by contrast to the approved standard procedures

incident to any arrest detailed [in the Court’s opinion],” a

buccal swab involves a brief and minimal intrusion)(emphasis

added)).

     Second, and relatedly, the facts of this case give rise to

serious Fourth Amendment concerns due to the role of law

enforcement's discretion in taking the buccal swab samples. In

                               10
King, the Maryland statute held constitutional by the Supreme

Court deprived law enforcement of any discretion in taking the

buccal swab samples because the DNA collection booking procedure

was statutorily prescribed to apply to all persons arrested for

serious felonies. 569 U.S. at 448. Therefore, the Supreme Court

noted, “[t]he DNA collection is not subject to the judgment of

officers whose perspective might be colored by their primary

involvement in the often competitive enterprise of ferreting out

crime.” Id. (internal quotation marks and citations omitted). In

this case, unlike in King, there is no mechanism to curb the

discretion of officers whose “perspective might be colored” by

their goal of performing the normal need for law enforcement or,

as the Supreme Court put it, “ferreting out crime.” Id. It is

for that reason that the Supreme Court has never sanctioned

suspicionless searches when the government’s purpose is to

discover evidence of a crime or to fulfill the normal need for

law enforcement. See City of Indianapolis v. Edmond, 531 U.S.

32, 37 (2000) (explaining the Court had upheld “certain regimes

of suspicionless searches where the program was designed to

serve ‘special needs, beyond the normal need for law

enforcement.’”).

     Furthermore, even if King does control, the governmental

interests in this case are different from those recognized in

King. The governmental interests in King were: (1) identifying

                               11
the arrestee; (2) discovering a suspect’s criminal history; and

(3) determining if the arrestee should be released into the

community. See King, 569 U.S. 450–53. In light of those

interests compared to the minimal intrusion attendant to the

buccal swab, the Court held that the search involved in King—a

statutorily mandated booking procedure—did not offend the Fourth

Amendment. Id. at 454. Here, the buccal swab is not sought for

purposes of identification or for determining the defendants’

criminal records to ensure the safety of arresting officers,

jail staff, or other detainees. See id. at 450–52. Nor is the

buccal swab sought to assist the Court in determining the risk

of flight or danger posed by the defendants’ release. Id. at

453. Indeed, the defendants in this case have been released for

several months and have not had any issues on pretrial

supervision. Rather, the governmental interest in this motion is

solely investigative. The government seeks to link Corry Blue

Evans and Candy Evans to weapons that were purchased by another

defendant but the government has not articulated the

significance of these weapons to the offenses with which they

are charged. The Court recognizes that the intrusion incurred by

a buccal swab is minimal, but even a minimal intrusion outweighs

a governmental interest that is de minimis at best.

     Because this motion concerns a search for evidence of a

crime, not a routine booking procedure, the government is

                               12
required to show not only general reasonableness but

individualized suspicion. See Edmond, 531 U.S. at

44(“declin[ing] to suspend the usual requirement of

individualized suspicion where the police seek to employ a

checkpoint primarily for the ordinary enterprise of

investigating crime.”); see also King, 569 U.S. 435 at 468

(Scalia, J.,)(dissenting)(stating “[i]t is only when a

governmental purpose aside from crime-solving is at stake that

we engage in the free-form ‘reasonableness inquiry’”). The

government correctly notes that probable cause for a buccal swab

requires a fair probability that the DNA is “evidence of a

crime.” Gov’t’s Reply, ECF No. 187 at 7 (citing Illinois v.

Gates, 462 U.S. 213, 238 (1983)). The government further

recognizes that evidence of a crime encompasses all relevant

evidence. Id. at 10 (citing Michigan v. Clifford, 464 U.S. 287,

294 (1984) (“[A] criminal search warrant may be obtained only on

a showing of probable cause to believe that relevant evidence

will be found in the place to be searched.”)). Although the

government points to the indictment, the indictment makes no

reference whatsoever to any weapons or violent behavior on the

part of Corry Blue Evans or Candy Evans. 2 See generally


2 The indictment alleged threats by Tony John Evans. Tony John
Evans has not opposed the motion. Candy Evans has only been
indicted on charges related to witness tampering and there are
no allegations related to her use of any weapons.
                                13
Indictment, ECF No. 1. The grand jury found probable cause to

believe that Corry Blue Evans committed the crimes alleged in

the indictment: wire fraud, bank fraud, and extortion, and that

there was probable cause that Candy Evans tampered with

witnesses. Id. However, there is no allegation that either of

these two defendants used a gun during any of the criminal acts

alleged, and there is no need to prove the use of a firearm in

any of the charges filed against any defendant. Cf. United

States v. Proctor, 230 F. Supp. 3d 1, 2 (D.D.C. 2017) (noting

that the motion for DNA swab to compare DNA found on a firearm

was proper in part because a “grand jury[] found probable cause

exists that each Defendant possessed the respective firearm

recovered”). 3 The government has failed to show how there is

probable cause for the search to which the government seeks to

compel the defendants to submit, or even the relevance of the

firearms to its case against these two defendants.

     The government’s secondary argument, that the existence of

a conspiracy supports probable cause to search every person in



3 The other cases the government relies on similarly support the
Court’s analysis. See United States v. Alvarez-Herrera, No. 13-
cr-61, 2014 WL 1599506, at *2 (E.D.N.C. Apr. 21, 2014)(“granting
government’s motion for DNA samples of indicted defendant to
link him to crime scene”);United States v. Wilhere, 89 F. Supp.
3d 915, 919 (E.D. Ky. 2015)(finding probable cause to search the
defendant for his DNA where there “might be DNA on the victim’s
body that could be compared to Defendant’s DNA” thereby making
the fact that he committed the offense more likely).

                                14
the conspiracy regardless of whether there is probable cause

that there is evidence of a crime related to the person

searched, similarly fails. See Gov’t’s Reply, ECF No. 187 at 11–

12. Although not entirely clear, the government’s argument

appears to be that a person in a conspiracy can be held liable

for the substantive offenses committed by a co-conspirator that

are reasonably foreseeable and committed in furtherance of the

conspiracy, and therefore probable cause to search one defendant

is probable cause to search them all. Id. Specifically, the

government contends, as long as there is evidence that a co-

conspirator carried or used a firearm in furtherance of a

conspiracy, any defendant can be held liable as if he or she

carried the firearm. Id. Therefore, a fortiori, the government

argues, the presence of the defendants’ DNA on the firearms

would make it more likely than not that they were aware of the

use of the firearms during the period of the conspiracy and

therefore would be evidence of relevant criminal activity. Id.

     The Court declines to endorse this novel theory of probable

cause. Although it is true that liability for possession of a

weapon, or other gun charges, may, in some cases, be premised on

co-conspirator liability, that does not change the fact that

there are no gun charges or allegations that a gun was used by

any defendant in this case. See United States v. McGill, 815

F.3d 846, 945 (D.C. Cir. 2016) (stating liability for firearms

                               15
charges may be premised on conspiracy liability). A rule that

probable cause to search a co-conspirator allows the government

to search everyone in the conspiracy, independent of

individualized suspicion for each person searched, is in direct

contravention of D.C. Circuit precedent that probable cause to

search or seize a person must be “particularized with respect to

the person to be searched or seized.” Barham v. Ramsey, 434 F.3d

565, 573 (D.C. Cir. 2006); see also Ybarra v. Illinois, 444 U.S.

85, 91 (1979) (stating the probable cause requirement “cannot be

undercut or avoided by simply pointing to the fact that

coincidentally there exists probable cause to search or seize

another or to search the premises where the person may happen to

be”).

III. Conclusion

     For the foregoing reasons, the government’s motion for an

order requiring defendants to provide a buccal swab as to Corry

Blue Evans and Candy Evans is DENIED. An appropriate Order

accompanies this Memorandum Opinion.

     SO ORDERED.

Signed:   Emmet G. Sullivan
          United States District Judge
          December 6, 2019




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