U.S. v. Kriesel

• Decision Date: 29 November 2007
• Docket Number: No. 06-30110.,06-30110.
• Citation: 508 F.3d 941
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Thomas Edward KRIESEL, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

508 F.3d 941

UNITED STATES of America, Plaintiff-Appellee, v. Thomas Edward KRIESEL, Jr., Defendant-Appellant.

No. 06-30110.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 20, 2007.

Filed November 29, 2007.

Colin Fieman and Joanne Green, Federal Public Defenders, Tacoma, WA, for the appellant.

Helen J. Brunner, John McKay, and Mike Dion, United States Attorneys, Seattle, WA, for the appellee.

Appeal from the United States District Court for the Western District of Washington; Ronald B. Leighton, District Judge, Presiding. D.C. No. CR-03-05258-RBL.

Before: B. FLETCHER and M. MARGARET McKEOWN, Circuit Judges, and WILLIAM W SCHWARZER,^* District Judge.

McKEOWN, Circuit Judge:

In 2004 we held that the DNA Analysis Backlog Elimination Act of 2000 "satisfies the requirements of the Fourth Amendment" with respect to individuals on supervised release. United States v. Kincade, 379 F.3d 813, 839 (9th Cir.2004) (en banc). The 2000 Act required collection of DNA samples from individuals in custody and on probation, parole, or supervised release who had been convicted of "qualifying Federal offenses," then defined as certain violent crimes. 42 U.S.C. § 14135a (2000). Congress amended the Act in 2004 to expand the qualifying offenses to all felonies. Joining every other circuit to consider the 2004 Act, we hold that the amended statute passes constitutional muster with respect to a convicted felon on supervised release.¹

I. STATUTORY AND REGULATORY BACKGROUND

In 2000, Congress enacted the DNA Analysis Backlog Elimination Act (the "DNA Act" or the "Act"), which required DNA samples to be collected from individuals in custody and those on probation, parole, or supervised release after being convicted of "qualifying Federal offenses." 42 U.S.C. § 14135a. The DNA Act originally defined "qualifying Federal offenses" as the following: (A) murder, voluntary manslaughter, or other offense relating to homicide, (B) an offense relating to sexual abuse, to sexual exploitation or other abuse of children, or to transportation for illegal sexual activity, (C) an offense relating to peonage and slavery, (D) kidnaping, (E) an offense involving robbery or burglary, (F) any violation of 18 U.S.C. § 1153 involving murder, manslaughter, kidnaping, maiming, a felony offense relating to sexual abuse, incest, arson, burglary, or robbery, (G) any attempt or conspiracy to commit any of the above offenses. See DNA Analysis Backlog Elimination Act, Pub.L. No. 106-546, § 3, 114 Stat. 2726, 2729-30 (2000). In 2001, the USA PATRIOT Act added to § 14135a "[a]ny offense listed in section 2232b(g)(5)(B) of Title 18 [acts of terrorism transcending national boundaries]," "[a]ny crime of violence (as defined in section 16 of Title 18, United States Code)," and "[a]ny attempt or conspiracy to commit any of the above offenses" to the list of qualifying offenses. See Pub.L. No. 107-56, § 503, 115 Stat. 272, 364 (2001). Together, these qualifying offenses are generally characterized as violent crimes.

Congress passed the Justice for All Act in 2004, which further amended the DNA Act by expanding the definition of "qualifying Federal offenses" as follows:

(d) Qualifying Federal offenses

The offenses that shall be treated for purposes of this section as qualifying Federal offenses are the following offenses, as determined by the Attorney General:

(1) Any felony.

(2) Any offense under chapter 109A of Title 18 [sexual abuse crimes].

(3) Any crime of violence (as that term is defined in section 16 of Title 18).²

(4) Any attempt or conspiracy to commit any of the offenses in paragraphs (1) through (3).

Pub.L. No. 108-405, § 203(b), 118 Stat. 2260, 2270 (2004).³ Rather than specifying certain crimes, the amendment included all felonies, all crimes of violence, and all sexual abuse crimes under Chapter 109A of Title 18.

The Attorney General has authority to promulgate regulations to carry out the statute. See 42 U.S.C. § 14135a(e); 28 C.F.R. § 28.2; DNA Sample Collection From Federal Offenders Under the Justice for All Act of 2004, 70 Fed.Reg. 4,763-01 (Jan. 31, 2005) ("DNA Sample Collection"). In response to the 2004 changes, the Attorney General revised 28 C.F.R. § 28.2, the regulation that identifies qualifying federal offenses for the purposes of DNA sample collection, to track the new language of § 14135a(d).

As under the original DNA Act, probation offices collect DNA samples from individuals on probation, parole, or supervised release who have been convicted of a qualifying federal offense, 42 U.S.C. § 14135a(a)(2), and the samples are furnished to the Director of the Federal Bureau of Investigation (the "FBI"), "who ... carr[ies] out a DNA analysis on each such DNA sample and include[s] the results in CODIS," id. § 14135a(b).⁴ CODIS is the FBI's Combined DNA Index System—a centrally-managed database linking DNA profiles culled from federal, state, and territorial DNA collection programs, as well as profiles drawn from crime-scene evidence, unidentified remains, and genetic samples voluntarily provided by relatives of missing persons. See Kincade, 379 F.3d at 819 (plurality opinion).

The 2000 Act also provided privacy protection standards, which remain in place after the 2004 amendment. Each act of unauthorized collection, use, or disclosure of a DNA sample is a separate crime, and "[a] person who knowingly discloses a sample or result described in subsection (a) in any manner to any person not authorized to receive it, or obtains or uses, without authorization, such sample or result, shall be fined not more than $250,000, or imprisoned for a period of not more than one year." 42 U.S.C. § 14135e(c). Subsection (a) provides that in general, "any sample collected under, or any result of any analysis carried out under, section 14135, 14135a, or 14135b of this title may be used only for a purpose specified in such section." Id. § 14135e(a).

II. KRIESEL'S CLAIMS

In March 1999, Thomas Edward Kriesel, Jr. pleaded guilty to one count of conspiracy to commit the crime of possession with intent to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846. He was sentenced to thirty months of imprisonment and three years of supervised release. At the time of judgment, the terms of Kriesel's supervised release included this standard condition: "You shall answer truthfully all inquiries by the probation officer and follow the instructions of the probation officer." Kriesel was also advised that he "shall submit his person, residence, place of employment or vehicle to a search upon request by the U.S. Probation Office."

When he was initially scheduled for DNA testing, Kriesel informed the probation officer that he was opposed in principle to the government's collection and permanent storage of his DNA. In August 2005, the Probation Department petitioned the district court to revoke Kriesel's supervision because he failed to report for DNA testing. Because Kriesel's conviction for conspiracy to distribute methamphetamine is a felony, it is a "qualifying Federal offense" under the DNA Backlog Elimination Act as amended in 2004. 42 U.S.C. § 14135a(d) (2004). At the hearing on the petition to revoke supervised release, Kriesel's counsel argued that the Attorney General promulgated the regulation governing DNA collection in violation of the notice and comment provisions of the Administrative Procedure Act ("APA"), 5 U.S.C. § 553, and that the DNA Act as amended in 2004 violated the Fourth Amendment's prohibition on unreasonable searches and seizures. See U.S. Const., amend. IV.

The district court rejected these arguments and upheld both the validity of the regulation and the constitutionality of the Act. The district court also granted a stay of its order pending appeal.

III. APA CHALLENGE

Kriesel first contends that the Attorney General was required to follow the notice and comment procedures in 5 U.S.C. § 553 because in revising 28 C.F.R. § 28.2, the Attorney General promulgated a substantive or legislative rule. The APA provides that administrative rules must be adopted through the rulemaking process, which includes notice and an opportunity for public comment. 5 U.S.C. §§ 551(4), (5); 553. Although not referenced in the statute, the courts have denominated such rules as "legislative rules." See Richard J. Pierce, Jr., Distinguishing Legislative Rules from Interpretive Rules, 52 ADMIN. L. REV. 547, 549 (2000). In contrast, the APA specifically exempts "interpretive rules" from the rulemaking process. 5 U.S.C. § 553(b)(3)(A).

The Attorney General's regulation issued in response to the 2004 amendment is a classic interpretive rule: it is a rule "issued by an agency to advise the public of the agency's construction of the statutes and rules which it administers." Chrysler Corp. v. Brown, 441 U.S. 281, 302 n. 31, 99 S.Ct. 1705, 60 L.Ed.2d 208 (1979) (quoting United States Department of Justice, Attorney General's Manual on the Administrative Procedure Act (1947)); see also Hemp Indus. Ass'n v. Drug Enforcement Administration, 333 F.3d 1082, 1087 (9th Cir.2003) ("In general terms, interpretive rules merely explain, but do not add to, the substantive law that already exists in the form of a statute or legislative rule.").

The 2004 amendment dictates the basis for the regulatory revision. The statute provides in relevant part: "[t]he offenses that shall be treated for purposes of this section as qualifying Federal offenses are the following offenses, as determined by the Attorney General: (1) Any felony." Justice for All Act, § 203(b).

The Attorney General issued regulations that mirror the statute, by designating "any felony" as a qualifying offense. 28 C.F.R. § 28.2(b)(1). The regulations define "felony" in accord with federal law as an "offense that would be classified as a felony under 18 U.S.C. § 3559(a) or that is specifically classified by a letter grade as a felony." Id. § 28.2(a).

Kriesel's...