U.S. v. Stegman

295 F.Supp.2d 542

UNITED STATES of America v. John STEGMAN

No. CR. CCB-97-0126.

United States District Court, D. Maryland.

November 24, 2003.

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Lynne A Battaglia, Court of Appeals of Maryland, Tarra DeShields Minnis, Office of U.S. Atty., Baltimore, MD, for U.S.

MEMORANDUM

BLAKE, District Judge.

The defendant, John Stegman, began serving a term of supervised release on September 21, 2001. In March 2002, Stegman refused to comply with an order from his probation officer to submit a blood specimen pursuant to the DNA Analysis Backlog Elimination Act of 2000, 42 U.S.C. § 14135 et seq. ("DNA Act" or the "Act"). Stegman now challenges the constitutionality of the DNA Act in a motion to dismiss a notice of violation of conditions of supervised release filed by his probation officer. For the reasons stated below, Stegman's motion will be denied.

BACKGROUND

On December 19, 2000, Congress enacted the DNA Act. The Act provides in relevant part: "[t]he 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. § 14135a(a)(2).¹ Qualifying Federal offenses include homicide, crimes relating to sexual abuse or sexual exploitation, kidnapping, and offenses involving robbery or burglary. Id. § 14135a(d). The DNA Act further requires cooperation in the collection of a DNA sample as a condition of probation, parole, or supervised release, id. § 14135c, and provides that failure to cooperate is a misdemeanor offense, id. § 14135a(a)(5). Additionally, the DNA Act authorizes the probation office responsible for supervision of an individual to "use or authorize the use of such means as are reasonably necessary to detain, restrain, and collect a DNA sample from an individual who refuses to cooperate in the collection of the sample." Id. § 14135a(a)(4)(A).

Once a DNA sample is collected, the Act requires the responsible probation office to furnish each DNA sample to the Federal Bureau of Investigation for analysis and inclusion in the Combined DNA Index System ("CODIS"). Id. § 14135a(b). "CODIS is a national index of DNA samples taken from convicted offenders, crime scenes and victims of crime, and unidentified human remains that `enables law enforcement officials to link DNA evidence found at a crime scene with a suspect whose DNA is already on file.'" United States v. Miles, 228 F.Supp.2d 1130, 1132 (E.D.Cal.2002) (quoting 146 Cong. Rec. S11645-02, S11647 (Dec. 6, 2000) (statement of Sen. Kohl)); see also 42 U.S.C. § 14132(a) (authorizing the Federal Bureau of Investigation to establish CODIS). Moreover, the DNA Act authorizes disclosure of a DNA sample or result "to criminal justice agencies for law enforcement identification purposes," "in judicial proceedings," "for criminal defense purposes, to a defendant ... in connection with the case in which such defendant is charged," and "if personally identifiable information is removed, for a population statistics database, for identification research and protocol development purposes, or for quality control purposes." 42 U.S.C. §§ 14135e(b), 14132(b)(3). The Act also provides that a person who, without authorization, knowingly discloses or obtains a DNA sample collected pursuant to the Act shall be fined up to $100,000. Id. § 14135e(c).

On June 11, 1997, Stegman pled guilty to aiding and abetting the attempted acquisition of a firearm by making a false statement to a licensed dealer, in violation of 18 U.S.C. § 922(a)(6) and 18 U.S.C. § 2(a). On August 1, 1997, the court sentenced Stegman to a term of 63 months of imprisonment, to be followed by three years of supervised release. Stegman was released from prison on September 21, 2001, and began serving his term of supervised release.

On March 11, 2002, William F. Henry, Chief U.S. Probation Officer for the District of Maryland, sent Stegman a letter explaining to him that he was required to submit a blood sample and fingerprints, pursuant to a federal law enacted in December 2000 that requires persons convicted of certain federal offenses and released under the supervision of the U.S. Probation Office to cooperate in the collection of a DNA blood sample. (Def.'s Mot. at Ex. B.) On March 18, Sharon A. Jacobs, the U.S. Probation Officer assigned to Stegman, sent him a letter instructing him to submit a blood sample on March 28. (Id. at Ex. C.) The qualifying federal offense that served as the basis of this request was a bank robbery in violation of 18 U.S.C. §§ 2113(a), and (f), for which Stegman pled guilty on July 16, 1982 and was sentenced in this court on September 9, 1982. (Id. at Ex. E.) Stegman's attorney, Assistant Federal Public Defender Jeffrey E. Risberg, notified Jacobs on March 27, 2002 that Stegman would not comply with her order and that he would challenge the constitutionality of the DNA Act. (Id. at Ex. D.) On April 26, Jacobs filed a notice of violation of supervised release alleging that Stegman failed to follow her instructions and that Stegman committed another crime in violation of federal law by failing to provide a blood sample on March 28. (Id. at Ex. E.)

Stegman now seeks to dismiss the notice of violation of supervised release. He challenges the constitutionality of the DNA Act on four grounds: (1) the Act violates the ex post facto clause; (2) the Act violates the Fourth Amendment; (3) the Act violates the separation of powers doctrine; and (4) the Act violates the double jeopardy clause.

ANALYSIS

1. Whether Application of the DNA Act Violates the Ex Post Facto Clause

a. Application of the DNA Act to the Current Offense

Stegman's first challenge is that application of the DNA Act to Mr. Stegman's current offense, the 1997 firearms conviction, violates the ex post facto clause because it operates retroactively and imposes a new condition of supervised release, thus increasing the punishment for the firearms offense beyond that available at the time that the offense was committed. (Def.'s Mot. at 4-6.)

The ex post facto clause simply provides, "No State shall ... pass any ... ex post facto Law." U.S. Const. Art. I, § 9, cl. 3. The clause, however, has been more clearly defined:

It is settled, by decisions of this Court so well known that their citation may be dispensed with, that any statute which punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time that the act was committed, is prohibited as ex post facto.

Collins v. Youngblood, 497 U.S. 37, 42, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990) (quoting Beazell v. Ohio, 269 U.S. 167, 169-70, 46 S.Ct. 68, 70 L.Ed. 216 (1925)); see also Carmell v. Texas, 529 U.S. 513, 522-25, 120 S.Ct. 1620, 146 L.Ed.2d 577 (2000); Jones v. Murray, 962 F.2d 302, 309 (4th Cir.1992). Stegman argues that application of the DNA Act to him makes the punishment for his two prior offenses more burdensome. "To prevail on this sort of ex post facto claim, [Stegman] must show both that the law he challenges operates retroactively (that it applies to conduct completed before its enactment) and that it raises the penalty from whatever the law provided when he acted." Johnson v. United States, 529 U.S. 694, 699, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000).

The government does not dispute Stegman's contention that the DNA Act operates retroactively. Instead, the government focuses its argument on whether application of the DNA Act increases Stegman's punishment for his prior offenses. As applied to the 1997 firearms conviction, Stegman asserts that it is the sanction imposed for failing to submit the DNA sample — the potential revocation of supervised release and/or conviction for a new crime — rather than the forced extraction of the sample itself, that constitutes the increased punishment. (Def.'s Mot. at 5.) Stegman's argument fails.

First, the potential revocation of Stegman's supervised release does not increase Stegman's punishment for the 1997 firearms conviction. As part of Stegman's original sentence, he was subject to a mandatory condition of supervised release that he "not commit another Federal, State, or local crime." (Id. at Ex. A; see also 18 U.S.C. § 3583(d).) Stegman has cited no authority, and the court has found none, standing for the proposition that 18 U.S.C. § 3583(d) applies only to crimes that were in effect at the time of sentencing. In addition, Stegman was subject to a condition that he "follow the instructions of the probation officer." (Def's. Mot. at Ex. A.) It is the alleged violation of these conditions that serves as the basis of the notice of violation of supervised release issued by the probation officer. (See id. at Ex. E.) The relevant conditions of supervised release were part of the original sentence and have not been altered. See United States v. Evans, 159 F.3d 908, 913 (4th Cir.1998) ("[T]he term of supervised release, the revocation of that term, and any additional term of imprisonment imposed for violating the terms of the supervised release are all part of the original sentence."); see also Miller v. U.S. Parole Comm'n, 259 F.Supp.2d 1166, 1170 (D.Kan.2003) (noting that revocation of supervised release for failure to comply with the DNA Act is part of a probationer's original sentence, and thus does not constitute new punishment). Thus, the penalty for Stegman's 1997 firearms offense has not been increased from "whatever the law provided when he acted." Johnson, 529 U.S. at 699, 120 S.Ct. 1795.

Second, a potential misdemeanor conviction for failure to cooperate does not increase Stegman's punishment for the 1997 firearms conviction. The DNA Act criminalizes Stegman's March 2002 failure to comply...