United States District Court, D. Nevada
FOLEY, JR., United States Magistrate Judge
matter is before the Court on Defendant's Motion for
Court Ordered Fingerprint and DNA Testing and Analysis (ECF
No. 1352), filed on February 17, 2017. The Government filed
an Opposition (ECF No. 1355) on March 3, 2017 and Defendant
filed a Reply (ECF No. 1358) on March 10, 2017. The Court
conducted a hearing in this matter on March 17, 2017.
a resident of Skopje, Macedonia, is charged in an Indictment
of being a vendor in the Carder.su Organization and allegedly
used the username “Devica” in order to produce
and sell counterfeit credit cards and holograms since October
1, 2008. See generally Indictment (ECF No. 1).
Defendant allegedly obtained orders through Carder.su and
then shiped those orders to his customers. On March 20, 2009,
Customs and Border Patrol (CBP) agents confiscated and
inspected a package that was shipped from Skopje, Macedonia
by “Dimitar Jordanov” to an apartment in Miami,
Florida. The shipping label stated that the package
contained a “Picture Frame (Gift)” and when the
CBP agents opened the package, they in fact found a frame.
However, when the CBP agents removed the back of the frame,
they uncovered 27 counterfeit credit cards with misspellings
that were identical to the postings made by Devica on
Carder.su. On January 5, 2011, a Secret Service agent who
contacted Devica in his undercover capacity, received a
package that contained seven counterfeit cards pursuant to
their transaction. Id. These packages remain in the
Governments possession and have not been tested for
fingerprints or DNA.
now seeks an order from the Court directing the Government to
test the two packages in their possession for fingerprints
and DNA and then to compare those results to that of
Defendant as well as anyone else in their databases.
Defendant-who maintains that he is not Devica-believes that
his fingerprints and DNA will not be on the packages. He
believes this would be exculpatory evidence necessary to his
defense and the Government should be required to obtain it.
The Government contends that there is no legal basis or
authority for his request. Moreover, the Government has
offered to make the packages available to Defendant, subject
to certain protocol relating to the chain of custody, for him
to perform the testing he requests.
Court is not inclined to grant Defendant's request. As an
initial matter, the Court notes that it generally cannot
order a United States Attorney to conduct an investigation or
initiate a prosecution because it would violate the doctrine
of separation of powers. Ross v. United States
Attorney's Office, 511 F.2d 524 (9th Cir. 1975),
cert. denied, 423 U.S. 831, 96 S.Ct. 52, 46 L.Ed.2d 49
(1975); Inmates of Attica Correctional Facility v.
Rockefeller, 477 F.2d 375 (2nd Cir. 1975); United
States v. Cox, 342 F.2d 167 (5th Cir. 1965), cert.
denied, 381 U.S. 935, 85 S.Ct. 1767, 14 L.Ed.2d 700 (1965).
Despite this explicit principle, Defendant argues that the
Court has discretion to order the Government to conduct the
requested identification procedures. Defendant cites to
Berryman v. United States, 378 A.2d 1317 (D.C. App.
1977) and United States v. Kennedy, 450 F.2d 1089
(9th Cir. 1971) to support his proposition. Defendant's
reliance on these cases is inapposite. Both cases deal with
situations where the defendant sought to compel a pre-trial
lineup. In Berryman, the court found that a trial
court has discretion to order an out-of-court lineup when it
deems it to be appropriate. 378 A.2d at1320. Such a situation
would be when there is “a reasonable likelihood of a
mistaken identification which a lineup would tend to
resolve.” Id. It is clear that the court's
holding in Berryman dealt with its concern with the
reliability of eyewitness identification of a defendant that
lead to his prosecution. Unlike Berryman where the
defendant was identified solely by his victim's
eyewitness identification, here the Government does not
intend on identifying and proving Defendant's guilt
solely based on the two packages. Opposition (ECF
No. 1355), pgs. 8-9. Rather, they are just two pieces to a
very large puzzle that the Government must put together to
show Defendant's guilt. If the Government determines that
it wants to conduct DNA and fingerprint analysis on the two
packages, it may do so. However, it is not the Court's
place to order such an investigation.
also argues that the Court should apply the standards set
forth in the Innocence Protection Act (IPA), 18 U.S.C. §
3600, in determining whether it should order the Government
to conduct the DNA and fingerprint analysis. Once again, the
Court is not inclined to grant Defendant's request.
Congress enacted the IPA to aid in the exoneration of
wrongfully convicted defendants where the perpetrator's
DNA was left at crime scenes. United States v.
Watson, 792 F.3d 1174, 1177 (9th Cir. 2015) (discussing
the Act in detail). The plain language of the IPA states that
it can only be applied in post-conviction proceedings and
provides no legal standing to criminal defendants who have
not been convicted. Ogata v. United States, 2015 WL
8492024, at *5 (D. Haw. Dec. 10, 2015). As a result, the
standards discussed by the IPA likewise apply only to
post-conviction proceedings and the Court will not apply them
Rule 16 of the Federal Rules of Criminal Procedure is also
pertinent here. Under Rule 16, Defendant is entitled to
“inspect and to copy or photograph...tangible
objects...if the item is within the government's
possession, custody, or control” and if “the item
is material to preparing the defense” or “the
government intends to use the item in its case-in-chief at
trial.” Fed. R. Crim. P. 16(a)(1)(E). The Government
has made these two packages available for Defendant to
inspect and have the requested testing done. Therefore, the
Government asserts that it has met its obligation under Rule
16 and is not required to do anything further. The Court
reasons set forth above, the Court will deny Defendant's
request to compel the Government to conduct fingerprint and
DNA analysis on the two packages. Defendant may contact the
Government and arrange to obtain possession of the two
packages so that he may conduct the requested testing.
Thereafter, Defendant may compare any results he obtains
against his own fingerprints and DNA. Accordingly, IT IS HEREBY
ORDERED that Defendant's Motion for Court Ordered
Fingerprint and DNA Testing and Analysis (ECF No. 1352) is
 “Dimitar Jordanov” was one
of the fake names Devica used on counterfeit credit cards as
advertised on Carder.su. Opposition (ECF No. 1355),
Defendant also argues that the
Government should be required to conduct the testing because
he is not able to compare the results to the databases the
Government has access to. This argument is unpersuasive.
Defendant can run the testing he requests and compare those
results to his own DNA and fingerprints. This would provide
Defendant with the evidence he seeks, namely: that his DNA
and fingerprints were or were not on the packages. Proving
that another ...