Monday, January 31, 2005

Bank Larceny Not a "Qualifying Federal Offense" Under the Old DNA Act

United States v. Peterson, No. 03-1454 (2d Cir. Jan. 10, 2005):

Summary:

Government bloodsuckers may not force a probationary defendant to submit a DNA sample under the old DNA Act where his original conviction was for bank larceny. At the time Peterson was sentenced, the DNA Act required that all persons convicted of a "qualifying federal offense" were to submit a DNA sample while on supervised release, parole or probation (the Act was subsequently amended on October 30, 2004 making "any felony" a qualifying offense). The district judge dismissed the government's petition to summon Peterson to a probation violation hearing, finding that bank larceny was not a qualifying federal offense. The appeal raised two issues: (1) whether the government was authorized to appeal a district court's ruling dismissing a petition for a probation violation hearing; and (2) was bank larceny a qualifying federal offense? The answers were (1) yes and (2) no.

The Opinion:

The first question was resolved by an examination of the various authorities for government appeals. After finding that neither 18 U.S.C. Section 3742(b)(permitting government appeals of sentencing decisions in criminal cases) nor section 3731 (permitting appeals of specified decisions in criminal cases) authorized the government's appeal, the Court turned to 28 U.S.C. 1291 which permits appeals "from all final decisions of the district courts."

As a general rule section 1291 does not authorize government appeals in criminal cases. After determining that this case was in fact a criminal case, however, the Court found that an appeal was authorized under the "collateral order" doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949) which states that appeals are allowed "from a small number of criminal orders analagous to civil orders" which are "sufficient[ly] independent from the main course of prosecution to warrant treatment as plenary orders." The Court found that the dismissal of a probation violation was such an order "collateral to the main course of prosecution" and was therefore appealable.

The Court then sided with Peterson on the merits of his claim that bank larceny (18 U.S.C. 2113(b)) was not a qualifying offense. At the time, the DNA Act stated that a qualiftying offense included "an offense involving robbery or burglary (as described in chapter 103 of such title, sections 2111 through 2114, 2116, and 2118 through 2119)". The Court held that a plain reading of the statute did not include bank larceny which is distinct from robbery or burglary.

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