All Writs Act, 28 U.S.C. \u00a7 1651, can be used for post-indictment DNA testing to attempt to connect defendant to gun in indictment. United States v. Barner, 2012 U.S. Dist. LEXIS 101305 (W.D. N.Y. July 19, 2012):<\/p>\n
The All Writs Act provides that courts “may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. \u00a71651(a). It “invests a court with a power essentially equitable and, as such, not generally available to provide alternatives to other, adequate remedies at law.” Clinton v. Goldsmith, 526 U.S. 529, 537 (1999). “Courts may rely on [the All Writs Act] to issue orders necessary for conducting factual inquiries.” United States v. Li, 55 F.3d 325, 329 (7th Cir. 1995).<\/p>\n
While conceding that the it “would most likely” have been appropriate for the government to issue a grand jury subpoena for his saliva at the pre-indictment stage of the case (defendant’s Response [51], \u00b625), defendant argues that since the government failed to take advantage of this alternative remedy (which is no longer available), no order may be issued under the All Writs Act (id.) (citing United States v. Vanwort, 887 F.2d 375, 387 (2d Cir. 1989), cert. denied, 495 U.S. 906 (1990) (“it is clearly improper to utilize a Grand Jury for the sole or dominating purpose of preparing an already pending indictment for trial”)). That argument was expressly rejected in Li, involving use of the All Writs Act to compel handwriting exemplars following an indictment: “The post-indictment nature of the order did not diminish the trial court’s authority to issue the order. The district court had authority to require the handwriting exemplars.” 55 F.3d at 329.<\/p><\/blockquote>\n
United States v. Marshall, 2012 U.S. Dist. LEXIS 101300 (W.D. N.Y. July 19, 2012), too.<\/p>\n","protected":false},"excerpt":{"rendered":"
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