394 F.3d 98 (2nd Cir. 2005), 03-1454, United States v. Peterson

Docket Nº:03-1454.
Citation:394 F.3d 98
Party Name:UNITED STATES of America, Appellant, v. Lawrence PETERSON, Defendant-Appellee.
Case Date:January 10, 2005
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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394 F.3d 98 (2nd Cir. 2005)

UNITED STATES of America, Appellant,


Lawrence PETERSON, Defendant-Appellee.

No. 03-1454.

United States Court of Appeals, Second Circuit

January 10, 2005

Final Submission: March 2, 2004.

Argued: Jan. 30, 2004

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Timothy W. Hoover, Federal Public Defender's Office, Western District of New York, for Defendant-Appellee.

Thomas M. Gannon, Attorney, Department of Justice Criminal Div., Appeals Section, Washington, D.C. (Michael A. Battle, United States Attorney Western District of New York and Gretchen L. Wylegala, Assistant United States Attorney Western District of New York, on the brief), for Appellant.

Before: KEARSE and POOLER, Circuit Judges, and UNDERHILL, [*] District Judge.

UNDERHILL, District Judge.

The District Court for the Western District of New York (William M. Skretny, Judge) dismissed the government's petition to summon Lawrence Peterson to a probation violation hearing. The government appeals, contending that, because Peterson was convicted of bank larceny, the DNA Analysis Backlog Elimination Act of 2000, 42 U.S.C. § 14135a (the "DNA Act"), required him to submit to the collection of a DNA sample, and his refusal violated the terms of his probation. This appeal raises two questions: (1) is the government authorized to appeal a district court's ruling dismissing a petition for a probation violation hearing, and (2) was bank larceny a "qualifying Federal offense" under the DNA Act as it existed in 2002. 1 We hold that (1) the government's appeal is authorized by 28 U.S.C. § 1291, but (2) Judge Skretny correctly concluded that bank larceny was not a "qualifying Federal offense." Accordingly, we affirm.


On August 9, 1999, Peterson pleaded guilty to one count of bank larceny in violation of 18 U.S.C. § 2113(b). Neither Peterson's original sentence on February 25, 2000, nor his first amended sentence on May 18, 2000, nor his second amended sentence on September 28, 2001 required him to submit to DNA testing as a condition of his probation. 2 The DNA Act was enacted on December 19, 2000, after Peterson's first amended sentence but before his second amended sentence. The DNA Act requires persons convicted of a "qualifying Federal offense" to submit to the collection of DNA samples while on supervised release, parole, or probation. 42 U.S.C. § 14135a. At the time of Peterson's second amended sentence, qualifying offenses included:

[a]n offense involving robbery or burglary (as described in chapter 103 of [Title 18], sections 2111 through 2114, 2116, and 2118 through 2119)....

42 U.S.C. § 14135a(d) (1) (E). Though not explicitly mentioned by the DNA Act, the code section that makes bank larceny a crime, 18 U.S.C. § 2113(b), falls within "sections 2111 through 2114."

In February 2002, Peterson received a letter from the United States Probation Office directing him to appear on February 21, 2002 to submit a blood sample for DNA testing pursuant to the

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DNA Act. Through his attorney, Peterson declined. Following Peterson's refusal to comply, United States Probation Officer Brian Burns petitioned the District Court to summon Peterson to a violation hearing. The petition alleged that Peterson had violated the terms of his probation (1) by refusing to provide a blood sample for DNA testing, a criminal offense under the DNA Act, and (2) by failing to follow the instructions of his probation officer. Peterson moved to dismiss the petition, arguing that conviction for bank larceny was not a qualifying offense mandating DNA collection under 42 U.S.C. § 14135a(d). After argument, Judge Skretny dismissed the petition, concluding that bank larceny was not a qualifying offense under the DNA Act and that Peterson had not violated any term of his probation. The government appealed. 3

Although neither party raised the issue, at oral argument we questioned whether this Court has jurisdiction to hear the government's appeal from a district court's decision to dismiss a probation violation petition. We requested and received further briefing on the jurisdictional issue.


I. Government's Authorization to Appeal

The Court of Appeals enjoys jurisdiction to hear a particular appeal only when that appeal is authorized by statute. United States Dep't of Justice v. Federal Labor Relations Auth., 792 F.2d 25, 27 (2d Cir. 1986). Three statutes potentially authorize the government's appeal in this case: 18 U.S.C. § 3742(b), which permits the government to appeal sentencing decisions in criminal cases; 18 U.S.C. § 3731, which permits the government to appeal specified decisions or orders in criminal cases; and 28 U.S.C. § 1291, which permits appeals "from all final decisions of the district courts of the United States." The government argues that its appeal is authorized both by 18 U.S.C. § 3731 and 28 U.S.C. § 1291.

A. Appeal Pursuant to 18 U.S.C. § 3742(b)

Peterson's second amended sentence, although imposed after the enactment of the DNA Act, did not require Peterson to provide a DNA sample as a condition of his probation. 4 If the government believed federal law required such a condition, it could have appealed from Peterson's sentence under 18 U.S.C. § 3742(b) (1), which authorizes the government to appeal "an otherwise final sentence if the sentence was imposed in violation of law." The government did not appeal Peterson's second amended sentence within thirty days after entry of judgment, see Fed. R.App. P. 4(b) (1) (B) (i), and therefore section 3742(b) (1) is no longer relevant.

B. Appeal Pursuant to 18 U.S.C. § 3731

Congress carved out express exceptions to the prohibition on criminal appeals

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brought by the government by passing the Omnibus Crime Control Act of 1970, codified at 18 U.S.C. § 3731 ("section 3731"). 5 With the passage of section 3731, "Congress intended to remove all statutory barriers to Government appeals and to allow appeals whenever the Constitution would permit." United States v. Wilson, 420 U.S. 332, 337, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975). That is not to say that Congress intended to allow an appeal in every situation. Rather, as this Court has pointed out, "when the Court says 'all statutory barriers' are removed, it is speaking within a pertinent context and is properly understood to mean all statutory barriers to appeals from the dismissal of an indictment." United States v. Hundley, 858 F.2d 58, 63 (2d Cir. 1988). " Wilson does not purport to say that the Government may appeal from orders ... that do not involve the dismissal of a prosecution and that are not included in other section 3731 categories." Id.

Hundley held that section 3731 "plainly limits appeals by the United States to specified categories of district court orders--those (1) dismissing an indictment or granting a new trial, (2) suppressing evidence or requiring the return of seized property, and (3) relating to the temporary release of a person charged or convicted of an offense." Id. at 62. If this appeal falls in any of those categories, it is the third.

As used in section 3731, the term "release" refers to a temporary period when a criminal defendant is permitted to remain free from detention while awaiting trial, sentencing, or appeal. See 18 U.S.C. § 3141; Hundley, 858 F.2d at 62; S.Rep. No. 98-225, at 3, 29-30 (1983) (discussing section 3731 in section entitled "Bail Reform"), reprinted in 1984 U.S.C.C.A.N. 3185, 3212-13. By dismissing the petition for a violation hearing Judge Skretny did not enter an order granting Peterson "release" from custody, nor did he deny a motion to revoke or modify the conditions of a previously entered order granting "release." Probation is a criminal sentence, not a period of release prior to trial, sentencing, or appeal. Accordingly, section 3731 does not authorize the government to appeal from the dismissal of a probation violation petition.

C. Appeal Pursuant to 28 U.S.C. § 1291

Under 28 U.S.C. § 1291 ("section 1291"), the courts of appeals (with the

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exception of the United States Court of Appeals for the Federal Circuit) have jurisdiction of appeals from all final decisions of...

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