United States District Court, W.D. Virginia, Roanoke Division
Michael F. Urbanski United States District Judge
matter comes before the court on the government's
"Motion for Non-Testimonial Evidence." ECF No. 397.
The government seeks photographs of tattoos relevant to gang
affiliation belonging to defendants Michael Jones, Terrance
Brown, Michael Dove, Clifford Jennings, Ronnie Nicholas, and
Corey Owens. Defendants Jones, Jennings, and Nicholas object
to the government's request. ECF Nos. 415, 417, 428. For
the reasons stated below, the court will grant in part and
deny in part the government's motion.
qualify for the Fifth Amendment privilege, a communication
must be testimonial, incriminating, and compelled."
Hiibel v. Sixth Judicial Dist. Court of Nevada. Humboldt
Cty., 542 U.S. 177, 189 (2004). Certain physical traits
are not testimonial for purposes of the Fifth Amendment. For
example, the government may require a criminal suspect
"to put on a shirt, to provide a blood sample or
handwriting exemplar, or to make a recording of his
voice." United States v. Hubbell, 530 U.S. 27,
35 (2000) (footnotes omitted); see also United States v.
Williams. 461 F.3d 441, 446-47 (4th Cir.2006) (holding
that a demonstration by a defendant that he could not
physically wear the fanny pack as alleged by police is not
testimonial evidence). As such, "the Fifth Amendment is
not offended where a witness relies on a tattoo to identify a
defendant." United States v. Greer, 631 F.3d
608, 612 (2dCir. 2011).
case, the government seeks evidence of defendants'
tattoos not for identification purposes, but as "proof
of the defendants' membership, association, and roles
within the Bloods and Mad Stone Bloods." ECF No. 397, at
1. In other words, the government intends to rely on the
tattoos "for the content of what was written."
Greer, 631 F.3d at 613 (quoting Gilbert v.
California, 388 U.S. 263, 266-67 (1967)). Therefore, the
tattoo evidence sought by the government is testimonial. See
id.; United States v. Ledbetter, 188 F.Supp.3d 674,
681 (S.D. Ohio 2016) (Where "the government relies on
evidence of the defendant's tattoos for the content
o£ the communication-the tattoo is
testimonial.") (citations and quotations omitted). And
given the nature of the charges in this case, the tattoo
evidence is plainly incriminating. However, certain of
defendants' tattoos do not require government compulsion
to be entered into evidence.
that are "openly visible on [a defendant's] body,
" United States v. Toliver, 387 F.App'x
406, 418 (4th Cir. 2010) (unpublished),  may be presented
at trial without infringing on defendants' Fifth
Amendment protections. Requiring defendants to submit to
photographs of openly visible tattoos does not result in
compelled communication. See Greer, 631 F.3d at 613;
Ledbetter, 188 F.Supp.3d at 683. Therefore, the
government may photograph defendants' openly visible
tattoos, including tattoos on defendants' heads, faces,
necks, arms, and hands.
government seeks photographs of tattoos in other locations,
the government may present evidence indicating that a
defendant treated those tattoos as openly visible. For
example, the government may show that a defendant did not
regularly wear a t-shirt, which would indicate that a tattoo
on the defendant's chest was openly visible. To date,
however, the government has not presented such evidence. The
court therefore limits the photographs to defendants'
heads, faces, necks, arms, and hands. Once the government has
identified which photographs on which it intends to rely at
trial, see Scheduling Order, ECF No. 245, at ¶ 3,
defendants may file motions in limine challenging the
admissibility of specific exhibits.
appropriate Order will be entered.
 Toliver seemingly conflicts
with the rationale in Greer regarding the
testimonial nature of tattoos that the government seeks to
admit for their communicative purposes. According to
Toliver. tattoos offered to show a defendant's
gang-affiliation do "not constitute testimony within the
meaning of the Fifth Amendment." 387 F.App'x at 417.
Toliver is an unpublished opinion and does not bind
this court, and the court finds the reasoning set forth in
Greer more persuasive than Toliver. That
is, tattoos are testimonial if the government seeks to offer
them "for the content of what was written."
Greer, 631 F.3d at 613. Unlike Greer.
Toliver did not separately consider whether the
tattoos were "testimonial, mcriminating, [or]
compelled." Hiibel. 542 U.S. at 189.
Nevertheless, Toliver repeatedly characterized the
tattoos at issue as "openly visible."
Toliver. 387 F.App'x at 417-18. The openly
visible nature of the tattoos more aptly weighs on whether
the evidence was compelled, not whether it was testimonial.
See Greer. 631 F.3d at 613 ("The voluntary
tattooing of an mcriminating word to Greer's arm was ...
not the product of government compulsion."). Therefore,
the court departs with Toliver's suggestion that
tattoos used to show gang affiliation are not testimonial for
purposes of the Fifth Amendment.
 While Toliver allowed
evidence of tattoos that "become easily visible were [a
male defendant] to wear a tank top or take off his shirt,
" Toliver, 387 F.App'x at 418, the court
finds that an approach similar to that taken in
Ledbetter is more protective of defendants'
Fifth Amendment rights. See Ledbetter. 188 F.Supp.3d
at 683 (allowing photographs of "tattoos on the
defendants' faces, necks, hands, and forearms, " but