U.S. v. Miles, CR.S-95-325 WBS.

• Decision Date: 31 October 2002
• Docket Number: No. CR.S-95-325 WBS.,CR.S-95-325 WBS.
• Citation: 228 F.Supp.2d 1130
• Parties: UNITED STATES of America, Plaintiff, v. Danny MILES, Defendant.
• Court: U.S. District Court — Eastern District of California

228 F.Supp.2d 1130

UNITED STATES of America, Plaintiff, v. Danny MILES, Defendant.

No. CR.S-95-325 WBS.

United States District Court, E.D. California.

October 31, 2002.

Danny Miles, Sacramento, CA, pro se.

Allison Claire, Fed. Defender, Sacramento, CA, for Danny Miles.

Thomas Hopkins, U.S. Atty., Sacramento, CA, for U.S.

MEMORANDUM AND ORDER

SHUBB, District Judge.

Defendant Danny Miles is currently on supervised release following his 1996 conviction for possession of a firearm by a convicted felon, 18 U.S.C. § 922(g). Defendant's probation officer directed him to submit a blood sample for deoxyribonucleic acid ("DNA") analysis pursuant to the DNA Analysis Backlog Elimination Act of 2000, 42 U.S.C. § 14135. Defendant refused to appear for DNA testing, and consequently a petition was filed charging defendant with a violation of the conditions of his supervised release. Defendant now moves to dismiss the petition. Defendant has otherwise complied with all conditions of his supervised release, and would have successfully completed his term of supervision in August 2002.

I. Factual Background

On December 19, 2000, Congress enacted the DNA Analysis Backlog Elimination Act of 2000. 42 U.S.C. § 14135; Pub.L. No. 106-546, 114 Stat. 2726 (Dec. 19, 2000)("The Act"). The Act provides, in pertinent part:

The probation office responsible for the supervision under Federal law of an individual on probation, parole, or supervised release shall collect a DNA sample from each such individual who is, or has been, convicted of a qualifying Federal offense (as determined under subsection (d))....

42 U.S.C. § 14135a(a)(2). "Qualifying federal offenses" are limited to certain categories of violent crime, including homicides, sex offenses, kidnaping, robbery, and conspiracies to commit those offenses. See 42 U.S.C. § 14135a(d).

The Act requires cooperation with the collection of a DNA sample as a condition of supervised release, and makes failure to cooperate a misdemeanor offense. See 42 U.S.C. §§ 14135c; 14135a(a)(5). The Act also authorizes the probation office responsible for the supervision to use reasonable means to detain, restrain, and collect samples from a person who refuses to give them voluntarily. See 42 U.S.C. § 14135a(a)(4)(A).

In addition, the Act requires the probation office to furnish each DNA sample to the Federal Bureau of Investigation for purposes of analysis and indexing in the Combined DNA Index System ("CODIS"). 42 U.S.C. § 14135a(b). CODIS is a national index of DNA samples taken from convicted offenders, crime scenes and victims of crime, and unidentified human remains that "enables law enforcement officials to link DNA evidence found at a crime scene with a suspect whose DNA is already on file." 146 Cong. Rec. S11645-02, S11647 (Dec. 6, 2000)(statement of Sen. Kohl); see also 42 U.S.C. § 14132(a); 106 H.R. 900. The Act further authorizes disclosure of a DNA sample or result to "criminal justice agencies for law enforcement identification purposes," in "judicial proceedings," and "for criminal defense purposes, to a defendant." 42 U.S.C. §§ 14135e(a)(b), 14132(b)(3).

The Act also provides a number of privacy protections, including limiting the use of the information, criminalizing the knowing, unauthorized retention or disclosure of a DNA sample, and expunging a person's DNA records upon proof that each of his convictions for a qualifying offense has been overturned. See id; 42 U.S.C. §§ 14135e(c), 14132(d).

In 1974, defendant was convicted of armed robbery, which is considered a "qualifying federal offense" under the Act. 28 C.F.R. § 28.2. He is currently serving a term of supervised release for a 1996 conviction for a non-qualifying federal offense, possession of a firearm by a convicted felon. Defendant contends that he is not required to submit to DNA testing under the Act because the offense for which he is currently under supervision is not a qualifying offense. Alternatively, defendant argues that the Act violates the Fourth Amendment, the Equal Protection Clause, and the Ex Post Facto Clause.

II. Discussion

A. Interpretation of 42 U.S.C. § 14135a(a)(2)

Whether the Act applies to defendant depends on what the meaning of "has been" is. The Act requires the probation office to collect a DNA sample from any individual on supervised release "who is, or has been, convicted of a qualifying Federal offense." 42 U.S.C. § 14135a(a)(2). Defendant interprets this provision to mean that DNA sampling is required of a supervisee who "is or has been" convicted of a qualifying offense, and is now under supervision for that offense. The government contends that the terms of the Act require testing of any supervisee who "is or has been" convicted of a qualifying offense, regardless of whether his current supervision is the result of his conviction for the qualifying offense.

The question of whether section 14135a(a)(2) covers people like defendant who are currently under supervision for a non-qualifying offense but who have been convicted of a qualifying offense in the past appears to be a matter of first impression. The court's analysis therefore begins, as it must, with the language of the statute itself. Lewis v. United States, 445 U.S. 55, 60, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980); Tello v. McMahon, 677 F.Supp. 1436, 1441 (E.D.Cal.1988)(if there is no binding authority construing statute, the court must undertake its own independent analysis beginning with examination of statutory text).

If the language of the statute is clear and unambiguous, it must ordinarily be regarded as conclusive. North Dakota v. United States, 460 U.S. 300, 312, 103 S.Ct. 1095, 75 L.Ed.2d 77 (1983). In the absence of textual ambiguity, the court may resort to other cannons of statutory construction only if there is "[v]ery strong evidence, if not explicit language from the legislative history" of Congressional intent contrary to the statute's plain meaning. Tello, 677 F.Supp. at 1441; Burlington N. R.R. Co. v. Oklahoma Tax Comm'n, 481 U.S. 454, 461, 107 S.Ct. 1855, 95 L.Ed.2d 404 (1987); Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 110, 103 S.Ct. 986, 74 L.Ed.2d 845 (1983).

The language of section 14135a(a)(2) is plain. It applies without limitation or qualification to any person on supervised release who "is or has been convicted of a qualifying Federal offense." So long as the person is (1) under supervision, and (2) has been convicted of a qualifying offense, he must submit to DNA testing. Nothing on the face of the statute suggests a Congressional intent to restrict the Act's application only to people who have been convicted of a qualifying offense for which they are now under supervision. To arrive at the construction defendant urges, the court would have to insert a limitation into the statute that does not appear in its text. See Burlington Northern, 481 U.S. at 463, 107 S.Ct. 1855 ("Respondents' position depends upon the addition of words to a statutory provision which is complete as it stands. Adoption of their view would require amendment rather than construction of the statute, and it must be rejected here.")

Lewis v. United States, 445 U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980) is instructive on this point. The Supreme Court in Lewis construed a federal statute prohibiting any person who "has been convicted by a court of the United States or of a State ... of a felony" from possessing a firearm. The Supreme Court rejected the defendant's argument that the statute did not apply to felony convictions subject to collateral attack:

[The statute's] proscription is directed unambiguously at any person who "has been convicted by a court of the United States or of a State... of a felony." No modifier is present, and nothing suggests any restriction on the term "convicted." Nothing on the face of the statute suggests a congressional intent to limit its coverage to persons [whose convictions are not subject to collateral attack]. The statutory language is sweeping ....

Id. at 60-61, 100 S.Ct. 915.

The "has been convicted" language in section 14135a(a)(2) is similarly sweeping and unqualified. It carves out no exceptions, and it would be contrary to the plain meaning of the statute to recognize an exception in defendant's case.¹

Defendant argues that the legislative history must inform the court's analysis. Defendant contends that because Congress appears not to have raised or debated the question of whether DNA testing would be required based on a prior conviction, Congress "[cannot have] intended that the DNA collection provision would be applied on the basis of past criminal history." (Def's Brief at 8.) However, "[t]he facile attribution of Congressional `forgetfulness' cannot justify .. a usurpation" by the judicial branch of Congress's legislative role. West Virginia Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 99-100, 111 S.Ct. 1138, 113 L.Ed.2d 68 (1991). The text of the Act itself is the best evidence of Congress's intent, id., and the text provides for DNA testing regardless of when the qualifying offense occurred. Moreover, there is no evidence, let alone "very strong evidence" that Congress's intent was contrary to the plain meaning of the Act. Tello, 677 F.Supp. at 1441. This is not one of those "exceptional circumstances" in which the legislative history evidences a Congressional intent so inconsistent with the plain meaning of the statute that the court may resort to other cannons of statutory construction to adopt a different interpretation. Burlington Northern, 481 U.S. at 461, 107 S.Ct. 1855.

Defendant also urges the court to construe the Act so as to avoid constitutional questions, but "that course is appropriate only where the statute provides a fair alternative construction." Lewis, 445 U.S. at 65, 100 S.Ct. 915. Because section 14135a(a)(2) is unambiguous on its face, there is no justification for construing the statute in light of constitutional considerations. The plain...