                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-26-2005

USA v. Cooper
Precedential or Non-Precedential: Precedential

Docket No. 04-1334




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                                         PRECEDENTIAL

 IN THE UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT
               ____________

                   No. 04-1334
                  ____________

        UNITED STATES OF AMERICA

                         v.

                SARUN COOPER,

                      Appellant
                  ____________

    Appeal from the United States District Court
       For the Middle District of Pennsylvania
               D.C. No.: 03-cr-00226
  District Judge: Honorable Christopher C. Conner
                   ____________

           Argued: December 14, 2004

Before: NYGAARD, ROSENN, and BECKER, Circuit
                  Judges

             (Filed January 26, 2005 )
Ronald A. Krauss (Argued)
Lori J. Ulrich
Office of Federal Public Defender
100 Chestnut Street, Suite 306
Harrisburg, PA 17101
        Counsel for Appellant

 Theodore B. Smith, III (Argued)
Office of United States Attorney
 Federal Building
228 Walnut Street, Suite 220
P.O. Box 11754
Harrisburg, PA 17108
       Counsel for Appellee

                       ____________

                 OPINION OF THE COURT
                      ____________

ROSENN, Circuit Judge.

       In this appeal involving police enforcement of crime
control, we are called upon to decide whether the DNA
Analysis Backlog Elimination Act of 2000, 42 U.S.C. §
14135a (2000) (the “DNA Act”) requires a defendant
convicted of possession of stolen bank funds in violation of




                              2
18 U.S.C. § 2113(c)1 to submit a sample of her DNA to her
probation officer. The DNA Act, as enacted, required
offenders of certain enumerated crimes to submit a DNA
sample to the United States Probation Office for analysis and
indexing in a DNA database.2

        Cooper, a branch teller at M&T Bank in York,
Pennsylvania, purloined nearly $53,000 from the credit lines
of bank customers or from fictitious lines of credit that she
created for customers. On September 18, 2003, Cooper pled
guilty to possession of stolen bank funds in violation of 18
U.S.C. § 2113(c). As a condition of her probation, Cooper
was required to submit a sample of her DNA. Cooper
objected on the ground that the plain language of the DNA
Act did not, in fact, cover possession of stolen bank funds.


  1
    18 U.S.C. § 2113(c) states in relevant part that “[w]hoever
receives, possesses, conceals, stores, barters, sells, or disposes
of, any property or money or other thing of value which has
been taken or stolen from a bank, credit union, or savings and
loan association . . . knowing the same to be property which has
been stolen shall be subject to . . . punishment . . . .”
   2
    Congress amended the DNA Act on October 30, 2004, to
include all felonies as qualifying offenses under the Act. See 42
U.S.C. § 14135a(d)(1) (2004), Pub. L. No. 108-405 § 203(b),
118 Stat. 2260 (amending 42 U.S.C. § 14135a (2000)).
Cooper’s crime having occurred prior to October 30, 2004,
however, the amendment does not affect the disposition of this
case.

                                3
The District Court overruled Cooper’s objection and ordered
her to submit a DNA sample in accordance with the DNA
Act. Cooper timely appealed. Because we conclude that
Congress did not intend the DNA Act to encompass a person
convicted of possession of stolen bank funds, the order of the
District Court will be reversed.

                                 I.

       The issue on appeal is whether possession of stolen
bank funds as set forth in 18 U.S.C. § 2113(c) is a qualifying
offense under the DNA Act requiring Cooper to submit a
DNA sample. In construing the language of the DNA Act,
our review is plenary. Tavarez v. Klingensmith, 372 F.3d
188, 189 n.2 (3d Cir. 2004) (“We exercise plenary review
over issues of statutory interpretation.”).

        It is well settled that “[t]he first step in interpreting a
statute is to determine ‘whether the language at issue has a
plain and unambiguous meaning with regard to the particular
dispute in the case.’” Valansi v. Ashcroft, 278 F.3d 203, 209
(3d Cir. 2002) (quoting Marshak v. Treadwell, 240 F.3d 184,
192 (3d Cir. 2001) (internal citations omitted)). “Where the
language of the statute is clear . . . the text of the statute is the
end of the matter.” Steele v. Blackman, 236 F.3d 130, 133
(3d Cir. 2001). However, if the language of the statute is
unclear, we attempt to discern Congress’ intent using the
canons of statutory construction. Ki Se Lee v. Ashcroft, 368
F.3d 218, 222 (3d Cir. 2004) (citing INS v. Cardoza-Fonseca,
480 U.S. 421, 447-48 (1987)). If the tools of statutory
construction reveal Congress’ intent, that ends the inquiry. Id.

                                 4
(citing Valansi, 278 F.3d at 208 (quoting Bell v. Reno, 218
F.3d 86, 90 (2d Cir. 2000))). If, on the other hand, we are
unable to discern Congress’ intent using tools of statutory
construction, we generally defer to the governmental agency’s
reasonable interpretation. Id.; see generally, Chevron, U.S.A.,
Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43
(1984). With these precepts in mind, we turn to the language
of the DNA Act itself to ascertain whether its meaning is
plain and unambiguous.

             A. Plain Language of the DNA Act

      The DNA Act provides in relevant part that individuals
on probation who have been convicted of a “qualifying
Federal offense” must submit a sample of their DNA to the
United States Probation Office. 42 U.S.C. § 14135a(1).
Qualifying offenses are defined in subsection (d) as follows:

       (1) The offenses that shall be treated for
       purposes of this section as qualifying Federal
       offenses are the following offenses under Title
       18, as determined by the Attorney General:

                     (A) M urder (as described in
                     section 1111 of such title),
                     voluntary manslaughter (as
                     described in section 1112 of such
                     title), or other offense relating to
                     homicide (as described in chapter
                     51 of such title, sections 1113,
                     1114, 1116, 1118, 1119, 1120,

                               5
             and 1121).

             (B) An offense relating to sexual
             abuse (as described in chapter
             109A of such title, sections 2241
             through 2245), to sexual
             exploitation or other abuse of
             children (as described in chapter
             110 of such title, sections 2251
             through 2252), or to transportation
             for illegal sexual activity (as
             described in chapter 117 of such
             title, sections 2421, 2422, 2423,
             and 2425).

             (C) An offense relating to
             peonage and slavery (as described
             in chapter 77 of such title).

             (D) Kidnapping (as defined in
section 3559(c)(2)(E) of such title).

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

             (F) Any violation of section 1153
             involving murder, manslaughter,
             kidnapping, maiming, a felony

                       6
                    offense relating to sexual abuse
                    (as described in chapter 109A),
                    incest, arson, burglary, or robbery.

                  (G) Any attempt or conspiracy to
      commit any of the above offenses.

      (2) In addition to the offenses described in
      paragraph (1), the following offenses shall be
      treated for purposes of this section as qualifying
      Federal offenses, as determined by the Attorney
      General:

                   (A) Any offense listed in section
      2332b(g)(5)(B) of Title 18.

                    (B) Any crime of violence (as
      defined in section 16 of Title 18).

                  (C) Any attempt or conspiracy to
      commit any of the above offenses.

42 U.S.C. § 14135a(d). The section pertinent on this appeal,
§ 14135a(d)(1)(E) (“subsection (E)”), lists as qualifying
offenses those “involving robbery or burglary (as described in
chapter 103 of such title, sections 2111 through 2114, 2116,
and 2118 through 2119).”

        The Government contends that because Cooper
violated 18 U.S.C. § 2113(c), her crime falls within the range
of statutory sections enumerated parenthetically in subsection

                              7
(E) and she must therefore submit a DNA sample.
Conversely, Cooper contends that subsection (E) only
encompasses those offenses in the enumerated sections which
involve robbery or burglary. Because possession of stolen
bank funds is legally distinguishable from both robbery and
burglary,3 Cooper urges that her crime does not “involve”
robbery or burglary and therefore falls outside the statute,
even though 18 U.S.C. § 2113(c) technically falls within the
range of sections enumerated in subsection (E). The
Government persuaded the District Court to adopt its
interpretation of the statute.

        In view of the foregoing, we look to canons of
statutory construction to inform our judgment as to the
statute’s meaning. See Ki Se Lee, 368 F.3d at 222.

            B. Canons of Statutory Construction

       It is a well known canon of statutory construction that
courts should construe statutory language to avoid
interpretations that would render any phrase superfluous.
TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (“It is a
cardinal principle of statutory construction that a statute
ought, upon the whole, to be so construed that, if it can be
prevented, no clause, sentence, or word shall be superfluous,
void, or insignificant.”) (internal quotation marks omitted).


   3
    The crimes of robbery and burglary contain an element of
force and/or violence, which possession of stolen bank funds
does not.

                               8
Subsection (E) of the DNA Act contains the qualifying phrase
“involving robbery or burglary.” The inclusion of this phrase
reflects Congress’ intent to limit offenses included within the
Act to those appertaining to robbery or burglary.

        Were we to adopt the Government’s construction that
subsection (E) encompasses any offense in the seven sections
enumerated within the parenthetical, see DNA Act subsection
(E) supra, the qualifying language “involving burglary or
robbery” would be rendered insignificant, if not wholly
superfluous. See Duncan v. Walker, 533 U.S. 167, 174
(2001) (refusing to adopt statutory construction that would
render statutory language “insignificant.”). That is because
the Government’s construction fails to give independent
effect to the specification of the specific crimes which
precede the parenthetical, namely robbery and burglary.
There would be no need for Congress to specify these crimes
if they were subsumed within the meaning of the
parenthetical. The Government’s construction of subsection
(E) conflicts with the logical interpretation of the statute.4


  4
   By concluding that subsection (E) encompasses only those
crimes appertaining to robbery or burglary, we are in accord
with the Court of Appeals for the Second Circuit. See United
States v. Peterson, - - F.3d - -, 2005 WL 39126 (2d Cir. Jan. 10,
2005) (subsection (E) only encompasses those offenses in
section 2111 through 2114 that involve robbery or burglary).
We acknowledge, however, that we depart from the Court of
Appeals for the Seventh Circuit. See United States v.
Henderson, 376 F.3d 730 (7th Cir. 2004) (deciding first that the

                               9
       If Congress had intended to include within subsection
(E) every offense in the enumerated sections, it could have
simply omitted the qualifying phrase “involving robbery or
burglary.” Because Congress chose to include it, the phrase
must be given meaning if possible. See Williams v. Taylor,
529 U.S. 362, 407 (2000) (O’Connor, J., concurring) (Rather
than render statutory language a nullity, “[w]e must, . . . if
possible, give meaning to every clause of the statute.”). We
hesitate to render statutory language irrelevant in any context
and there is no valid reason to do so here.5 See TRW, 534



language of the DNA Act is ambiguous, and then, as a result of
the ambiguity, deferring to the Government’s interpretation that
subsection (E) includes any offense under § 2113, including
subsection (b), bank larceny).
  5
   The Government asserts that excluding 18 U.S.C. § 2113(c)
from subsection (E) violates the rule against surplusage by
rendering superfluous the statutory language “as determined by
the Attorney General.” See 42 U.S.C. § 14135a(d)(1).
According to the Government, because the Attorney General has
determined that “any offense under section . . . 2113 of Title 18”
constitutes a “qualifying offense” under the Act, see 28 C.F.R.
28.2(a), excluding 18 U.S.C. § 2113(c) from subsection (E)
nullifies the deference afforded to the Attorney General. The
fatal flaw in this argument is that agency interpretations are
afforded deference only where Congress’ intent is ambiguous.
No deference is merited where, as here, Congress’ intent is
clear. See Chevron, 467 U.S. at 843-44. As such, the statutory
language in question is not rendered superfluous.

                               10
U.S. at 31.

       To be sure, “[c]anons of construction need not be
conclusive and are often countered . . . by some maxim
pointing in a different direction.” Circuit City Stores, Inc. v.
Adams, 532 U.S. 105, 115 (2001). The rule to avoid
declaring language superfluous, however, is in full accord
with other canons of construction bearing upon the proper
construction of subsection (E).

          The Whole Act Rule instructs that subsections of a
statute must be interpreted in the context of the whole
enactment. 2A J. Sutherland, Statutes and Statutory
Construction § 47.02, at 139 (5th ed., Norman Singer ed.).
Because “[s]tatutory interpretation . . . is a holistic endeavor[,]
. . . . [a] provision that may seem ambiguous in isolation is
often clarified by the remainder of the statutory scheme.”
United Sav. Ass’n of Tex. v. Timbers of Inwood Forest
Assocs., 484 U.S. 365, 371 (1988). Therefore, when
“interpreting a statute, the court will not look merely to a
particular clause in which general words may be used, but will
take in connection with it the whole statute . . . .” Kokoszka
v. Belford, 417 U.S. 642, 650 (1974) (internal quotations
omitted).        Interpreting subsection (E) in the context of the
whole statute leads to the ineluctable conclusion that the
subsection embraces only violent crimes. The offenses
enumerated parenthetically in subsection (E) – save §§




                                11
2113(b) and (c) – all involve force or violence,6 as do the
crimes enumerated in the other sections of the Act, viz.
murder, voluntary manslaughter, sexual abuse, peonage,
slavery, kidnapping, and maiming. See 42 U.S.C. §§
14135a(d)(1)(A)-(G).

       Furthermore, the chapter of the United States Code
which contains the DNA Act significantly is entitled “Violent
Crime Control and Law Enforcement.” See 42 U.S.C. ch.
136, § 14135a. Because “the title of a statute and the heading
of a section are tools available for the resolution of a doubt
about the meaning of a statute[,]” Almendarez-Torres v.
United States, 523 U.S. 224, 234 (1998) (internal quotations
omitted), a chapter title that contains the words “violent crime
control” usually signals a provision concerning violent
crimes. See id.


   6
     18 U.S.C.§ 2111 prohibits, “within the . . . maritime and
territorial jurisdiction of the United States,” the taking of
valuables “by force or violence, or by intimidation”; 18 U.S.C.
§ 2112 prohibits the robbery of United States property; 18
U.S.C. § 2113(a) prohibits bank robbery “by force and violence,
or by intimidation”; 18 U.S.C. § 2114 prohibits assault with the
intent to steal mail, money, or other property of the United
States; 18 U.S.C. § 2116 proscribes the entering of any United
States mail vehicle “by violence”, or the assault of any postal
clerk; 18 U.S.C. § 2118 prohibits the taking of controlled
substances from persons “by force or violence or intimidation”;
and 18 U.S.C. § 2119 proscribes the taking of motor vehicles
from persons “by force or violence or by intimidation.”

                              12
        Given that the DNA Act appertains to violent crimes, it
is illogical to construe subsection (E) as including possession
of stolen bank funds. See United States v. Curtis, 245 F.
Supp. 2d 512, 517-18 (W.D.N.Y. 2003). 7

        As the conclusion we reach today is directed by
Congress’ clear intent, we do not address the merits of the
Attorney General’s interpretation of the DNA Act. See INS
v. St. Cyr, 533 U.S. 289, 320 n.45 (2001) (“We only defer . . .
to agency interpretations of statutes that, applying the normal
‘tools of statutory construction,’ are ambiguous.”) (quoting
Chevron, 467 U.S. at 843 n.9).

                               II.

       For the foregoing reasons, the Order of the District


  7
    At oral argument, both parties claimed that the subsequent
amendment of the DNA Act to include all felonies validated
their respective interpretations of the statute. As discussed
above, canons of statutory construction reveal Congress’ intent
not to include within the DNA Act possession of stolen bank
funds. However, even if Congress’ intent were somehow
ambiguous, we are reluctant to divine Congress’ intent from a
statute’s subsequent history because it is an untrustworthy
barometer. See Jefferson County Pharm. Assn. v. Abbott Labs.,
460 U.S. 150, 165 n.27 (1983) (“[T]he views of a subsequent
Congress form a hazardous basis for inferring the intent of an
earlier one.”) (quoting United States v. Price, 361 U.S. 304, 313
(1960)).

                               13
Court compelling Sarun Cooper to submit a sample of her
DNA will be reversed.




                            14
