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February 18, 2003


The opinion of the court was delivered by: David G. Larimer, District Judge


The Government appeals*fn1 from a Decision and Order of United States Magistrate Judge Jonathan W. Feldman entered November 8, 2002, dismissing a petition alleging that the defendant, Rochelle Curtis ("Curtis") violated probation by failing to provide a DNA sample as requested by the supervising probation officer.

The issue presented is whether Curtis, who was convicted by guilty plea of misdemeanor bank larceny under 18 U.S.C. § 2113(b), is required to provide a DNA sample under the provisions of the DNA Analysis Backlog Elimination Act of 2000, 42 U.S.C. § 14135a ("DNA Act").

The Decision and Order of Magistrate Judge Feldman is affirmed, substantially for the reasons given in his thorough Decision and Order filed November 8, 2002, which I incorporate by reference here as Appendix "A."

I agree with Magistrate Judge Feldman that misdemeanor bank larceny is not a "qualifying federal offense" listed under § 14135a(d)(1) of the Act. The subsection involved here is subsection E which describes a qualifying offense as:

(E) An offense involving robbery or burglary (as described in chapter 103 of such title, sections 2111 through 2114, 2116, and 2118 through 2119).

I concur with the Magistrate Judge's determination that the DNA Act was intended to require DNA testing for the more serious and violent offenses. In fact, the section relating to DNA testing is contained as part of a chapter entitled "Violent Crime Control and Law Enforcement." A perusal of the qualifying offenses listed certainly supports that conclusion.

The Government contends that to the extent the statute is ambiguous, the Court should defer to the determination of the Attorney General as to what constitutes a qualifying federal offense. If the statute were ambiguous, I might agree, but I agree with Magistrate Judge Feldman that this statute is not ambiguous in defining qualifying federal offenses. I agree with the Magistrate Judge that the statute is quite clear in denominating offenses involving robbery or burglary. Clearly misdemeanor bank larceny does not "involve" robbery or burglary. Had Congress wished to cover all offenses listed in Chapter 103 of Title 18, it could have done so. Congress obviously evinced an intent to eliminate certain offenses from some of the statutory sections that do contain qualifying federal offenses. For example, under subsection F, the statute denominates the following as qualifying federal offenses:

(F) Any violation of section 1153 involving murder, manslaughter, kidnapping, maiming, a felony offense relating to sexual abuse (as described in chapter 109A, incest, arson, burglary, or robbery.

Here again, Congress used the word "involving" concerning the listed offenses. Section 1153 prohibits other conduct in addition to the qualifying federal offenses listed in the DNA Act. For example, § 1153 precludes theft of personal property under § 661. I read subdivision F as a clear indication that Congress intended to require DNA testing only for the most serious types of crimes which are specifically listed as qualifying offenses.

In my view, that is the situation here. Congress obviously made a determination that only certain crimes would require testing under the DNA Act. The Attorney General is not authorized to circumvent the clear intent of Congress by adopting a regulation which adds offenses requiring testing where Congress has declined to do so. As the legislative history makes clear, H.R. Report No. 106-900(I), at *19 (2000), reprinted in 2000 U.S.C.C.A.N. 2323, Congress clearly intended that the Attorney General not have that unbridled discretion.

Here, the Magistrate Judge found that "[t]he plain language of section 14135a(d)(1)(E) does not impress this Court as ambiguous, indefinite or confusing." U.S. v. Curtis, No. 01-M-509, 2002 WL 31663507, at *2 (W.D.N.Y. Nov. 08, 2002). The Magistrate Judge employed the basic principles of statutory construction that the plain language should always control and that no statute should be construed so as to render a word or clause inoperative. While not necessarily articulated in terms of the principles set forth in Chevron and Food and Drug Administration, it is clear that the Magistrate Judge read the words "involving robbery or burglary" in the context of the whole statutory scheme of the DNA Act and found that Congress had specifically addressed the issue of whether misdemeanor bank larceny was meant to be included as a qualifying federal offense. See e.g., U.S. v. Curtis, at *3 ("Given the type of violent crimes Congress listed as qualifying Federal 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.").

I agree with the Magistrate Judge's plain reading of the statute and find, as he did, that "the intent of Congress is clear." Therefore, the inquiry is at an end; "for the court, as well as the agency, must give effect to the ...

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