WICHITA, Kan. (AP) — A federal judge has postponed the Kansas trial of a man charged with assuming the identity of a dead Texas boy, giving the prosecution and defense time to obtain DNA that each side hopes will bolster their case.
While DNA evidence has long been a mainstay in other criminal trials, its use in an immigration-related identity theft case like the one filed against Teodoro Erasmo Luna is rare. Most such cases also don’t lend themselves to DNA testing because the government usually doesn’t have a way to get a comparative DNA sample.
In this case, the U.S. attorney’s office wants to compare the defendant’s DNA to the sisters of the child he is accused of impersonating, David Pena.
Luna is charged in a 17-count indictment with aggravated identity theft, misuse of a Social Security number, document fraud, making a false statement on a U.S. passport application, making a false claim of U.S. citizenship, among other related crimes.
The idea to use DNA testing was initially brought up by the prosecutor, and the judge agreed after the defense also asked the court to delay the Jan. 13 trial to allow time to conduct the test and receive results. U.S. District Judge J. Thomas Marten said the DNA testing will help the parties reach a resolution and set March 24 as the new trial date.
Defense attorney Joel Mandelman declined to comment.
Assistant U.S. Attorney Brent Anderson said the case is unusual because Luna still claims to be “a person we know he is not.”
“The government has investigated this case extensively, and while it has substantial evidence of the defendant’s true identity, much of that evidence is based on the inadmissible testimony of the defendant’s true relatives, who appear to live in Mexico, cannot be located or cannot be compelled to come to the United States to testify,” Anderson argued in one court filing.
Prosecutors have been unable to locate Pena’s death certificate. So they asked the court to allow them to put on the stand the four sisters of David Pena to testify their brother was born in 1967 in McAllen, Texas, and died in Mexico when he was 5 years old. One of the sisters was expected to testify that she had visited her brother’s grave, but could not remember the name of the cemetery. Both of Pena’s parents are dead.
Luna’s defense attorney has objected to allowing the sisters’ testimony on the grounds that it was hearsay.
“The witnesses only have the shallowest and most fleeting knowledge of David Pena’s purported death,” the defense wrote. “At the same time, testimony from witnesses who claim their brother died as a young boy will be highly emotional, resulting in unfair prejudice to the defendant.”
Prosecutors argued that the testimony should be admitted to settle the actual identity of the defendant.
“The testimony is likely to prejudice the defendant, and it is emotional, but that is because the defendant is alleged to have stolen and abused the identity of these women’s deceased brother,” Anderson wrote. “There is nothing ‘unfair’ about it.”
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