United States v. Kriesel, 11–30197.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation720 F.3d 1137
Docket NumberNo. 11–30197.,11–30197.
PartiesUNITED STATES of America, Plaintiff–Appellee, v. Thomas Edward KRIESEL, Jr., Defendant–Appellant.
Decision Date28 June 2013

OPINION TEXT STARTS HERE

Colin A. Fieman (argued), Assistant Federal Public Defender, Tacoma, WA, for DefendantAppellant.

Jonathan Y. Ellis (argued), Jenny A. Durkan and Helen J. Brunner, United States Attorney's Office, Washington, D.C., for PlaintiffAppellee.

Gary W. Manca, Manca Law, PLLC, Seattle, Washington; Douglas B. Klunder, ACLU of Washington Foundation, Seattle, WA, for Amicus Curiae American Civil Liberties Union of Washington.

Appeal from the United States District Court for the Western District of Washington, Ronald B. Leighton, District Judge, Presiding. D.C. No. 3:03–cr–05258–RBL–1.

Before MARY M. SCHROEDER, STEPHEN REINHARDT, and MILAN D. SMITH, JR., Circuit Judges.

Opinion by Judge Schroeder.

Dissent by Judge Reinhardt.

OPINION

SCHROEDER, Circuit Judge:

Government and commercial entities enjoy increasing capacity to obtain, store, and analyze information about people, giving rise to increasing concerns about privacy. Nowhere is that upward spiral more evident than in litigation, like this case, calling into question practices relating to identifying people through their deoxyribonucleic acid (DNA) sequences.

The appellant here, Thomas Kriesel, pled guilty to a drug conspiracy charge, and was sentenced to a term of imprisonment followed by a term of supervised release. One condition of his supervised release required him to provide a blood sample for analysis of his DNA, and inclusion of his DNA profile into the government's Combined DNA Index System (CODIS) database. Now that Kriesel has completed his term of supervised release, he has made an unusual invocation of Federal Rule of Criminal Procedure 41(g), asking the government to return the blood sample. He has no remaining objection to the government's retention of the information in his DNA profile, which the government analyzed from the extracted blood sample, and which it currently stores in the CODIS database.

Kriesel argued to the district court that the government had no legitimate reason for retaining the blood sample—which of course has within it not only the limited information the government has analyzed for his DNA profile, but his entire unanalyzed genome. The district court ruled the government had a legitimate purpose in retaining the blood samples that generate the CODIS profiles in order to ensure that the matches to forensic evidence, identified through CODIS searches, are accurate. The court found no reason at this time to believe the government would use the blood for other purposes, many of which are already prohibited by statute. The district court therefore granted judgment to the government, and we affirm on a similar basis.

I. THE GOVERNMENT'S DNA DATABASE

The Federal Bureau of Investigation (FBI) administers CODIS as a nationwide database of genetic identifying information.

The CODIS database stores DNA profiles of convicted federal felons on supervised release and others who have had brushes with the law. See DNA Analysis Backlog Elimination Act of 2000 (DNA Act), Pub.L. No. 106–546, § 3, 114 Stat. 2746, 2728–30; see also28 C.F.R. § 28.2. These DNA profiles are commonly generated from blood samples.

The blood is collected from offenders and then sent to the Federal DNA Database Unit (FDDU) in Quantico, Virginia. The FDDU extracts the DNA molecules from each blood sample, analyzes the molecules, generates a profile of identifying characteristics, and uploads the profile to CODIS. In addition to storing the profiles in CODIS, the FDDU retains offenders' physical blood samples to help ensure accurate matches to DNA found at crime scenes.

It is important in this case to understand how the government uses both the DNA profile and the samples for identification purposes. Blood cells in the samples contain two types of DNA: the biologically important coding (or non junk) DNA, and the biologically unimportant non-coding (or junk) DNA. See United States v. Kincade, 379 F.3d 813, 818 (9th Cir.2004) (en banc) (plurality) (explaining the difference between junk and non junk DNA). We held in Kincade that the government may extract junk DNA from samples, and use it to generate profiles for inclusion in CODIS, because present scientific understanding indicates that junk DNA reveals no sensitive, private genetic or medical information. It is useful, however, for identification purposes. See id. The government uses only junk DNA to generate the CODIS profile. The record in this case reflects that the government makes no use of the non junk DNA in the blood sample.

The CODIS system searches for matches between offenders' DNA and crime scene evidence. It is when a match is found that the actual sample is tested. The federal lab retrieves the offender's actual blood sample, which it has retained in storage. It again extracts junk DNA from that sample, generates a new DNA profile, and compares the new profile to the CODIS profile. This verifies that the person whose profile CODIS matched to the crime scene evidence is the same person who provided the original blood sample.

The FBI created CODIS after Congress passed the Violent Crime Control and Law Enforcement Act of 1994, which authorized the agency to create a national database of DNA samples from convicted federal offenders. SeePub.L. No. 103–322, 108 Stat. 1796 (Sept. 13, 1994). Following the creation of CODIS, all fifty states passed laws requiring convicted felons to provide DNA samples for CODIS.

The legislative history reveals concerns that the database be as accurate and trustworthy as possible. Representative Henry Hyde acknowledged that while a DNA database could be valuable to law enforcement, the accuracy of the database was critical:

[W]hen properly performed, DNA analysis has proven an extremely effective investigative tool in the criminal justice process. As DNA technology is increasingly employed in the courtroom, however, there has been growing concern over issues of quality assurance and standards for conducting DNA testing. H.R. 829 [the DNA Act] will guarantee that needed quality assurance standards are developed and implemented.

139 Cong. Rec. H1650–01 (daily ed. Mar. 29, 1999) (statement by Rep. Hyde).

In response to such concerns over the accuracy of CODIS, the 1994 Act requires the Director of the FBI to develop quality assurance and proficiency testing standards. 42 U.S.C. § 14131(a)(C)(2). Recommendations for these standards were to come from “an advisory board on DNA quality assurance methods from among nominations proposed by the head of the National Academy of Sciences and professional societies of crime laboratory officials.” Id. at § 14131(a)(1)(A). Responsibility for implementing the standards lies with the FBI. The statute provides that the FBI Director “after taking into consideration such recommended standards, shall issue (and revise from time to time) standards for quality assurance, including standards for testing the proficiency of forensic laboratories, and forensic analysts, in conducting analyses of DNA.” Id. at § 14131(a)(C)(2).

The procedures challenged in this case thus came from the advisory board's recommendations. The FBI Director implemented “Quality Assurance Standards” in which he required that “where possible” the actual blood samples of offenders be retained in the CODIS database. Fed. Bureau of Investigation, Quality Assurance Standards for DNA Databasing Laboratories (revised July 1, 2009), available at http:// www. fbi. gov/ about- us/ lab/ codis/ qas_ databaselabs. pdf. The FBI thus retains Kriesel's blood sample as part of its implementation of quality and accuracy standards developed pursuant to Congressional directives.

II. THIS LITIGATION'S HISTORY

In this round of Kriesel's extended litigation, his Rule 41(g) motion asks us to order the government to return his original blood sample. The litigation has a long history and has already been to this court twice. See United States v. Kriesel, 508 F.3d 941 (9th Cir.2007)( Kriesel I );United States v. Kriesel, 604 F.3d 1124 (9th Cir.2010)( Kriesel II ).

Kriesel pleaded guilty in 1999 to one count of conspiracy to commit possession with intent to distribute methamphetamine. 21 U.S.C. §§ 841(a)(1), 846. He was sentenced to a term of 30 months imprisonment, followed by a term of 36 months supervised release. As a condition of his supervised release, the probation office required him to provide a blood sample for DNA analysis. Kriesel objected on the ground that the requirement was unlawful, and the probation office asked the district court to revoke his supervised release on account of his refusal to provide the sample.

The district court rejected Kriesel's arguments, which were, first, that the extraction of a blood sample for DNA analysis violated the Fourth Amendment, and second, that the implementing regulations were promulgated in violation of the Administrative Procedure Act (APA), 5 U.S.C. § 553. The court revoked his supervised release.

A. Kriesel I

Kriesel appealed to this court, and we affirmed. On Kriesel's Fourth Amendment challenge, we considered the totality of the circumstances, and viewed Kriesel's status as a convicted felon on supervised release to be key for our analysis. Noting Kriesel's “diminished expectation of privacy” as a supervised releasee, we concluded he had only a limited interest in preventing the government from confirming his identity through analysis of his junk DNA. See Kriesel I, 508 F.3d at 947 (citing Kincade, 379 F.3d at 833 (plurality)). We recognized that Kriesel raised a number of legitimate concerns about other DNA tests, i.e., “about DNA samples being used beyond identification purposes.” Id. at 948. The presence of significant criminal prohibitions on the unauthorized use or disclosure of DNA samples, see42 U.S.C. § 14135e(c...

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