has submitted papers in opposition. Oral
argument was heard on June 3, 2002. For the reasons that follow, the
defendant's motion to dismiss the pending petition is granted.
On July 26, 2001, the defendant Rochelle Curtis appeared before this
Court and entered a plea of guilty to a one count misdemeanor charging a
bank larceny in violation of 18 U.S.C. § 2113(b). The factual basis
for her plea was Ms. Curtis' admission that she forged the signature of
her employer on several checks, cashed them and used the proceeds for her
own benefit. Upon acceptance of her guilty plea, the Court ordered a
The defendant again appeared before the Court on October 5, 2001, for
sentencing. The pre-sentence investigation described a pregnant
thirty-year-old divorced mother of two who was struggling with substance
abuse and clinical depression. According to the probation department
report, Ms. Curtis used the stolen funds to support her drug habit and to
pay for food and other items for her children. Although Ms. Curtis had
several petty theft convictions in her past, she had no history of
violence or other dangerous behavior. The Court sentenced the defendant
to six months home confinement, five years probation, substance abuse and
mental health counseling and full restitution. Neither the probation
department nor the government advocated for DNA testing of the
The motion currently before the Court springs from a probation
violation charge filed on April 23, 2002. The violation alleges that Ms.
Curtis has violated the "standard conditions" of probation by refusing to
"present herself for submission of a blood sample for DNA testing."
(Docket #19). More specifically, the government alleges that Ms. Curtis
is required to provide a blood sample for DNA testing pursuant to the DNA
Analysis Backlog Elimination Act of 2000, 42 U.S.C. § 14135a
(hereinafter the "DNA Act"). It is undisputed that Ms. Curtis, acting on
the advice of counsel, refused to provide a DNA sample to probation. The
issue for this Court is whether the crime Curtis was convicted of,
misdemeanor bank larceny, is a qualifying Federal offense which would
require Ms. Curtis to provide a DNA sample pursuant to the DNA Act.
1. The DNA Act: The Act provides in relevant part, that the probation
office shall collect the DNA samples from every person on probation who
is, or has been, convicted of a "qualifying Federal offense."
42 U.S.C. § 14135b(a)(2). Subsection (d) of § 14135b defines a
"qualifying Federal offense." Examples of qualifying Federal offenses
include murder, manslaughter, sexual abuse, kidnaping, peonage and
slavery. At issue here is construction of § 14135a(d)(1)(E) which
provides that "qualifying Federal offenses" include:
An offense involving robbery or burglary (as described
in chapter 103 of the such title, sections 2111
through 2114, 2116, and 2118 through 2119).
The government contends that because Curtis was convicted of a violation
of Title 18 U.S.C. § 2113(b), her crime is within the range of
statutory sections listed in the statute and therefore misdemeanor bank
larceny is a qualifying Federal offense for purposes of DNA testing.
Conversely, the defendant contends that the statute was designed to
encompass only offenses involving robbery or burglary which are contained
in the enumerated statutory sections. Both sides have represented to the
Court that this case raises an issue of first
impression concerning the
scope of § 14135a(d)(1)(E).
 Currently pending before the Hon. William A Skretny are three cases
in which the defendants have moved to dismiss a charged violation on the
ground that the crime of bank larceny is not a qualifying Federal offense
under the DNA Act. See United States v. Peterson, 99-CR-82(S), United
States v. Robinson, 02-Misc.Cr.-31(S); United States v. Greer,
02-Misc.Cr.-32(S). In the Peterson case, the defendant was convicted of
felony bank larceny, while in the Robinson and Greer cases the defendants
were convicted of misdemeanor bank larceny.
2. Statutory Construction of Section 14135a(d)(1)(E): "[I]n any case
concerning the interpretation of a statute, the `starting point' must be
the language of the statute itself." Lewis v. United States, 445 U.S. 55,
60 (1980); Caldor Corp. v. Ozer Group, L.L.C., 303 F.3d 161, 167-168 (2d
Cir. 2002) (resolution of a dispute over statutory construction begins
with language of statute). In examining the particular statute in
question, a court should adhere to two cardinal rules. First, the plain
language of the of the statute should always control. American Airlines,
Inc. v. Remis Industries, Inc., 494 F.2d 196, 198 (2d Cir. 1974) ("It is
a well-settled principle of statutory construction that the plain
language of a statute offers the primary guidance to its meaning.").
Second, "[i]t is a well known canon of statutory construction that, in
general, a statute should not be construed so as to render a word or
clause inoperative." Bell v. Reno, 218 F.3d 86, 91 (2d Cir. 2000), cert.
denied, 531 U.S. 1081 (2001). See also Washington Market Co. v. Hoffman,
101 U.S. 112, 115-16 (1879) ("[A] statute ought, upon the whole, to be so
construed that, if it can be prevented, no clause, sentence, or word
shall be superfluous, void or insignificant").
The plain language of section 14135a(d)(1)(E) does not impress this
Court as ambiguous, indefinite or confusing. It reflects Congress' intent
to make defendants convicted of specified offenses within distinct
sections of the federal law subject to DNA testing. According to the
plain language of the subsection (E), the distinct federal offenses for
which DNA collection is required are those offenses involving robbery and
burglary as described in sections 2111, 2112, 2113, 2114, 2116, 2218 and
2119 of Title 18. The clear import of the statute is that any offense in
the seven enumerated statutory sections that involves "burglary or
robbery" is a qualifying Federal offense for DNA testing purposes.
The government argues that the terms "robbery or burglary" as used in
subsection (E) refers merely to the title of the criminal code in which
the specified offenses are codified and "should not be understood as
limiting DNA sample collection to cases involving actual robberies or
burglaries." Government's Memorandum of Law (Docket #22) at page 4. I
find this argument unpersuasive. There are numerous federal crimes set
forth in the sections of Title 18 specified in subsection (E). While most
of them are robbery and burglary related offenses, some, including bank
larceny, are not. Subsection (E)
explicitly limits its scope to only
those crimes "involving" robberies and burglaries "as described in" seven
specifically enumerated statutory sections. 42 U.S.C. § 14135a(d)(1)(E)
(emphasis added). To adopt the government's view would, in substance,
render the words "involving" and "as described in" superfluous, a result
contrary to the rules of statutory construction. See TRW, Inc. v.
Andrews, 534 U.S. 19, 122 S.Ct. 441, 449 (2001) ("cardinal principle" of
statutory construction is that statute should be construed so that "no
clause, sentence, or word shall be superfluous, void or insignificant");
Sprint Spectrum, L.P. v. Willoth, 176 F.3d 630, 640 (2d Cir. 1999) ("It is
a well-settled rule of statutory construction that courts should disfavor
interpretations of statutes that render language superfluous."(internal
quotation and citation omitted)). See also Pennsylvania Dept. of
Corrections v. Yeskey, 524 U.S. 206, 212 (1998) ("The title of a statute
cannot limit the plain meaning of the text. For interpretive purposes, it
is of use only when it sheds light on some ambiguous word or phrase."
(internal quotations omitted)).
 The crime of bank larceny is a criminal offense legally and
factually distinguishable from robbery. An essential element of robbery,
which is absent from larceny, is proof of force or fear of the use of
force. See Carter v. United States, 530 U.S. 255, 258 (2000) (Bank
larceny [18 U.S.C. § 2113(b)] is not a lesser included offense of
robbery [18 U.S.C. § 2113(c)]). Other non-robbery related criminal
offenses within the seven statutory sections enumerated in subsection (E)
include 18 U.S.C. § 2113(c) (receipt, possession, concealment or
disposal of money taken from a bank) and 18 U.S.C. § 2114(b) (knowing
receipt, possession or concealment of money or property belonging to the
Congress certainly could have included larceny as a qualifying Federal
offense by simply deleting the terms "robbery and burglary" from
subsection (E), thus including all the various crimes "described in" the
seven enumerated sections of Chapter 103. Or Congress could have easily
added the crime of larceny to subsection (E) as it explicitly did with
the crimes of burglary and robbery.
In either of those scenarios, the "plain language" of the statute would
support the government's position. But subsection (E) is not written the
way the government contends it should be "understood." "It is axiomatic
that the plain meaning of a statute controls its interpretation, and that
judicial review must end at the statute's unambiguous terms." In re
Venture Mortgage Fund L.P., 282 F.3d 185, 188 (2d Cir. 2002).
The government also seeks to have this Court rely on portions of the
legislative history of the DNA Act in order to construe subsection (E) to
include bank larceny as a qualifying offense for DNA collection. But
"[c]ourts in applying criminal laws generally must follow the plain and
unambiguous meaning of the statutory language." United States v.
Albertini, 472 U.S. 675, 680 (1985). "`Only the most extraordinary
showing of contrary intentions' in the legislative history will justify a
departure from that language." Id. (quoting Garcia v. United States,
469 U.S. 70, 75 (1984)). There is no "extraordinary showing of contrary
intentions" in the legislative history of the DNA Act. Indeed, the
legislative history strongly suggests that Congress focused on serious
violent crimes in determining "qualifying Federal offenses" for DNA
collection purposes. According to the House Report, the term "qualifying
Federal offense" includes "murder; manslaughter; other homicide
offenses; offenses related to sexual abuse, sexual exploitation or other
abuse of children, and transportation for illegal activity; kidnaping;
burglary; and any attempt or conspiracy to include those crimes." H.R.
Report No. 106-900(I), at *19 (2000) reprinted in 2000 U.S.C.C.A.N.
2323. Given the type of violent crimes Congress listed as qualifying
offenses, construing the plain language of subsection (E) as not
including bank larceny is both logical and appropriate. Put simply, there
is nothing in the legislative history to suggest Congress intended to
embrace a crime like misdemeanor bank larceny as a qualifying offense for
DNA collection purposes. If the government wants to include all
crimes set forth in the seven enumerated sections of Title 18 as
qualifying Federal offenses, their remedy lies not with asking the
judicial branch to construe the statute contrary to its unambiguous
terms, but rather asking the legislative branch of our government to
amend the statute to conform to the government's "understanding" of what
 The crime of robbery was added to the final version of the bill,
but this too is obviously a crime of violence.
 Interestingly, during the oral argument of the Peterson case now
pending before Judge Skretny, the government intimated that the analysis
for including misdemeanor bank larceny as a qualifying Federal offense
may be "a whole other can of worms" as compared to the statutory analysis
necessary to find felony bank larceny as a qualifying Federal offense.
See transcript of Oral Argument held on July 31, 2002, United States v.
Peterson, 99-CR-82(S) (Docket #68).
The petition for a summons filed by the Probation Office is denied and
the violation is dismissed. Defendant Curtis shall not be required to
provide a DNA sample as a condition of her probation because she was not
convicted of a "qualifying Federal offense" under the DNA Act.
JONATHAN W. FELDMAN
United States Magistrate Judge
Dated: November 8, 2002
Rochester, New York