- Associated Press - Tuesday, January 20, 2015

WICHITA, Kan. (AP) - Prosecutors asked a federal judge Tuesday to order that a DNA sample be collected from a man in Kansas who is accused in an immigration-related case of assuming the identity of a dead Texas boy.

Teodoro Erasmo Luna initially had requested through his attorney that his Jan. 13 trial be delayed to allow the DNA testing. The judge agreed last week to the defense motion, putting off the trial until March 24 in hopes the DNA sample would help the parties reach a resolution.

Now prosecutors contend in a court filing that Luna balked when his jailers tried to collect the sample, and that he remained unwilling to provide it even after his defense attorney met with him. The government asked U.S. District Judge J. Thomas Marten to direct the U.S. Marshals Service to immediately obtain a swab of his saliva for use in DNA testing.

Defense attorney Joel Mandelman declined to comment on the development.

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.

DNA evidence is rarely used in immigration-related identity theft cases. In this case, Assistant U.S. Attorney Brent Anderson wants to compare the defendant’s DNA to the four sisters of David Pena, the Texas child whose identity Luna is accused of assuming. Anderson noted in his filing that the sisters have already provided DNA samples.

The government contended that it had “prepared extensively for trial, but to its detriment, agreed” to the defense offer to provide the swab and delay the trial because the results would likely resolve the case without the need for trial. It would also make it less likely that the four Texas sisters would have to travel to Kansas to testify.

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