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United States v. Kavoukian

July 20, 2006

UNITED STATES OF AMERICA,
v.
KURT KAVOUKIAN, DEFENDANT.



MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

On July 12, 2002, Defendant Kurt Kavoukian ("Defendant" or "Kavoukian") was found guilty of knowingly making a firearm silencer, in violation of 26 U.S.C. §§ 5822, 5861(f) & 5871, and knowingly possessing a firearm silencer in violation of 26 U.S.C. §§ 5841, 5861(d) & 5871. Jury Verdict (Dkt. No. 83). On February 25, 2003, Defendant was sentenced to a total term of thirty-five months on each count to run concurrently and was ordered to serve three years of supervised release. Sentencing Minutes (Dkt. No. 96).

The United States Probation Department for the Northern District of New York filed a petition on October 24, 2005 alleging a violation of Defendant's conditions of supervision as a result of Kavoukian's failure to appear for a scheduled DNA blood drawing on August 24, 2005 and September 22, 2005. Defendant has now made a motion seeking dismissal of the petition charging him with a violation of the conditions of his supervised release. Notice of Motion (Dkt. No. 117). The Government opposes this motion. Gov't Memo. (Dkt. No. 118). For the reasons that follow, Defendant's motion is denied.

II. DISCUSSION

On December 19, 2000, the DNA Analysis Backlog Elimination Act ("DNA Act"), 42 U.S.C. §§ 14135-14135(e) became effective. The provision of the DNA Act relevant to the instant issue provides:

The Probation Office responsible for the supervision under federal law of an individual on probation, parole, or supervised release shall collect a DNA sample from each such individual who is, or has been, convicted of a qualifying federal offense . . .

42 U.S.C. § 14135(a)(2).

The parties do not dispute that as originally enacted, neither of Defendant's crimes, knowingly making or possessing a firearm silencer, constituted a "qualifying federal offense" under the DNA Act. In October of 2004, the DNA Act was amended to expand what constitutes a qualifying federal offense. In relevant part, the DNA Act was amended to include the following language:

(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.

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

(4) Any attempt or conspiracy to commit any of the offenses in ...


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