CRIMINAL LAW

A body of rules and statutes that defines conduct prohibited by the government because it threatens and harms public safety and welfare and that establishes punishment to be imposed for the commission of such acts.

U.S. v. Kreisel

Law enforcement gained a powerful tool with the introduction of DNA testing. Because DNA has proved to be very effective in criminal prosecutions, Congress has enacted laws that require persons convicted of federal criminal offenses to provide a DNA sample that will go into a federal criminal database. By doing so, law enforcement will be able to match more easily DNA from offenders who go on to commit new crimes. The first federal law was enacted in 2000 and applied only to federal offenders who committed violent offenses. However, in 2004 Congress broadened the law to include all federal offenders. Offenders lost constitutional challenges to the 2000 act in federal courts but the 2004 law led to another round of challenges. The federal circuit courts of appeals have addressed these challenges and the Ninth Circuit, in U.S. v. Kreisel, 508 F.3d 941 (2007), followed the lead of other circuits in rejecting the challenge of a felon that the law violated his Fourth Amendment rights.

In March 1999, Thomas Kreisel, Jr. pleaded guilty to a federal drug charge involving the distribution of methamphetamine. He was sentenced to 30 months in prison and three years of supervised release. After Kreisel was placed on supervised release, his probation officer scheduled him for DNA testing. Kreisel objected in principle to the government's collection and permanent storage of his DNA. The probation department petitioned the district court to revoke Kreisel's supervised release because he failed to report for DNA testing. Under the DNA Backlog Elimination Act's 2004 amendments (42 U.S.C. 4135a(d)), the conviction for conspiracy to distribute methamphetamine was a “qualifying Federal offense.” At the revocation hearing, Kreisel's lawyer contended that the regulation promulgated by the Attorney General to govern the collection of DNA was procedurally defective and that the DNA act itself violated the Fourth Amendment's prohibition on unreasonable searches and seizures. The district court rejected both arguments and upheld the validity of the regulation and the law.

A three-judge panel of the Ninth Circuit voted 2–1 to uphold the district court ruling. Judge M. Margaret McKeown, writing for the majority, noted that the Ninth Circuit had, in 2004, upheld the original DNA act which covered only felons who had committee violent offenses. The 2004 amendment made anyone convicted of a federal felony subject to DNA collection. The Attorney General promulgated a regulation to carry out this new mandate, which requires that probation officers collect DNA samples from felons on probation, parole, or supervised release. The samples are furnished to the Federal Bureau of Investigation (FBI), which analyzes the DNA and includes the results in CODIS (Combined DNA Index System), a centrally-managed database linking DNA profiles gathered from federal, state and territorial DNA collection programs. Both the 2000 and 2004 laws included privacy protection standards, making the unauthorized collection, use or disclosure of a DNA sample a crime. A person convicted of violating these standards is subject to a $25,000 fine and one year in prison.

Judge McKeown first considered whether the Attorney General had properly managed the way the regulation was implemented. Under federal administrative procedure law, a proposed regulation is published to give notice to the public and a comment period follows where objections can be made to the proposal. Kreisel argued that the Attorney General had failed to follow this process. McKeown pointed out that the notice and comment process applies to substantive or legislative rules but not to “interpretive rules.” The 2004 regulation was a “classic interpretive rule: it is a rule ‘issued by an agency to advise the public of the agency's construction of the statutes and rules which it administers.”’ The 2004 amendment dictated the basis for the revision of the regulation, which mirrored the statute by designating “any felony” as a qualifying offense.

As to Kreisel's Fourth Amendment challenge, Judge McKeown noted that every circuit court of appeals that had considered the 2004 act had found it constitutional. The majority of the circuits used a “totality of the circumstances” test to review the constitutionality of the provision. This test pitted the degree to which the law intruded upon an individual's privacy against the degree to which the law is needed to promote legitimate governmental interests. Kreisel's privacy interest was severely diminished because he was a convicted felon on supervised release. The collection of the blood sample implicated his interest in bodily integrity but the court concluded it was no more intrusive than fingerprinting. In contrast, the government's interest in collecting DNA data from convicted felons was substantial. The data established a means of making releases comply with the conditions of their release, it acted as a deterrent to future crimes, and it helped solve past crimes. Therefore, the balance tipped in favor of the government's interest.

Judge Betty Fletcher dissented, arguing that the law was unconstitutional. In her view the law was too broad, as it mandated testing of felons regardless of their offense or their likelihood to re-offend. She pointed out that the Ninth Circuit decision upholding the 2000 act contained language that cautioned the ruling was of a “limited nature.” Judge Fletcher believed that the “expediency” infected the majority's analysis. There seemed to be “no limiting principle beyond what the government says it needs.”

Watson v. United States

Criminals who use firearms during the commission of their crimes are subjected to enhanced criminal penalties for doing so. Laws that reflect this policy seemingly are directed at a criminal who brandishes a firearm at a victim or who carries a weapon during a criminal transaction, such as a drug deal. However, the courts have been confronted with arguments from prosecutors who contend that such a law is applicable to a person who trades his firearm for drugs; he has “used” the firearm in the commission of the crime. This argument has proven successful, leading prosecutors to seek enhanced sentencing penalties for a person who is given a firearm in exchange for illegal drugs. The U.S. Supreme Court, in Watson v. United States,—U.S.—, 128 S. Ct. 579, 169 L. Ed. 2d 472 (2007), rejected this argument, finding that the federal statute could not be stretched in such a way as to go beyond the ordinary meaning of the word “used.”

Michael Watson told a government informant that he wanted to acquire a gun. The informant suggested that he would barter a gun in return for narcotics. Watson agreed and met the informant and an undercover law enforcement officer posing as a firearms dealer. Watson gave the informant 24 doses of the narcotic Oxy-Contin and received a .50 caliber semiautomatic pistol. When officers later arrested Watson, they found the pistol in his car. He told officers he needed the firearm to protect his drugs and other firearms he kept at his house. Watson was charged distributing a Schedule II controlled substance and for “using” the pistol during and in relation to that crime in violation of 18 U.S.C § 924(c)(1)(A). This law sets a mandatory minimum sentence for a defendant who, “during and in relation to any crime of violence or drug trafficking crime … uses or carries a firearm.” Watson pleaded guilty to all charges but reserved the right to appeal the gun charge. His sentence was enhanced by 5 years for using the gun. The Fifth Circuit Court of Appeals upheld the validity of the sentence, ruling that he had “used” the firearm but other circuits have taken the opposite view. Therefore, the Supreme Court accepted Watson's appeal to resolve the conflict in the circuits.

The Supreme Court, in a unanimous decision, overruled the Fifth Circuit's decision and its reading of the term “used” in §924(c)(1)(A). Justice DAVID SOUTER, writing for the Court, noted that in a 1993 decision the Court had held that a criminal who traded his firearm for drugs “used” it within the meaning of the statute. In that case the Court relied on the “ordinary or natural meaning” of the verb “uses” in context. It was “both reasonable and normal” to say the person “used” his firearm by trading it for cocaine. However, Justice Souter pointed out a 1995 decision in which the Court held that merely possessing a firearm kept near the scene of drug trafficking did not amount to “use.” There must be evidence sufficient to show an “active employment” of the firearm by the defendant.

Turning to Watson's case, Justice Souter found that the government's argument lacked authority in “either precedent or regular English.”As to precedent, the 1993 and 1995 decisions were not precedential. The 1993 case addressed the trader who swaps guns for drug, not the trading partner who ends up with the gun. The 1995 decision was of no value because it required that a gun be used actively as an “operative factor” to the drug offense. The question at issue before the Court was whether “it makes sense to say that Watson employed the gun at all.” The 1995 decision did not answer that question.

Therefore, the case had to turn on the meaning of the language and the verb “uses” as “we normally speak it.” With no statutory definition of the word, the Court was required to look for the “everyday meaning” of words, revealed in “phraseology that strikes the ear as ‘both reasonable and normal.”’ Viewed this way, the government did not, in Souter's view, have much of a case. In this case the informant or undercover agent “used” the pistol to get drugs, but “regular speech would not say that Watson himself used the pistol in the trade.” The government had argued that such a conclusion would create “unacceptable asymmetry” with the 1993 decision, penalizing one side of a drugs-for-guns transaction but not the other. Justice Souter was unconvinced, noting that Congress has 14 year to resolve this asymmetry but had failed to do so. This long period of “congressional acquiescence” enhanced Souter's reading of the statute. Finally, if there was a tension between the 1993 case and Watson's, “respect for the language” would be furthered by amending the law rather than by “racking statutory language to cover a policy it fails to reach.” Justice Ruth Bader Ginsburg filed a concurring opinion, agreeing with the result but finding the 1993 decision wrong. She concluded the Court should have overruled it.