18 U.S.C. § 3600 — DNA testing

Page 829 TITLE 18—CRIMES AND CRIMINAL PROCEDURE § 3600 4 So in original. Probably should be ‘‘subsection’’. authorized under subsection (f) shall not exceed $7,500 in any case, unless payment in excess of that limit is certified by the court, or by the United States magistrate judge, if the services were rendered in connection with the case dis- posed of entirely before such magistrate judge, as necessary to provide fair compensation for services of an unusual character or duration, and the amount of the excess payment is ap- proved by the chief judge of the circuit. The chief judge of the circuit may delegate such ap- proval authority to an active or senior circuit judge. (3) The amounts paid under this paragraph 4 for services in any case shall be disclosed to the public, after the disposition of the petition. (Added Pub. L. 109–177, title II, § 222(a), Mar. 9, 2006, 120 Stat. 231; amended Pub. L. 110–406, § 12(c), Oct. 13, 2008, 122 Stat. 4294.) Editorial Notes AMENDMENTS 2008—Subsec. (g)(2). Pub. L. 110–406 inserted ‘‘or sen- ior’’ after ‘‘active’’ in second sentence. CHAPTER 228A—POST-CONVICTION DNA TESTING Sec. 3600. DNA testing. 3600A. Preservation of biological evidence. § 3600. DNA testing (a) IN GENERAL.—Upon a written motion by an individual sentenced to imprisonment or death pursuant to a conviction for a Federal offense (referred to in this section as the ‘‘applicant’’), the court that entered the judgment of convic- tion shall order DNA testing of specific evidence if the court finds that all of the following apply: (1) The applicant asserts, under penalty of perjury, that the applicant is actually inno- cent of— (A) the Federal offense for which the appli- cant is sentenced to imprisonment or death; or (B) another Federal or State offense, if— (i) evidence of such offense was admitted during a Federal sentencing hearing and exoneration of such offense would entitle the applicant to a reduced sentence or new sentencing hearing; and (ii) in the case of a State offense— (I) the applicant demonstrates that there is no adequate remedy under State law to permit DNA testing of the speci- fied evidence relating to the State of- fense; and (II) to the extent available, the appli- cant has exhausted all remedies avail- able under State law for requesting DNA testing of specified evidence relating to the State offense. (2) The specific evidence to be tested was se- cured in relation to the investigation or pros- ecution of the Federal or State offense ref- erenced in the applicant’s assertion under paragraph (1). (3) The specific evidence to be tested— (A) was not previously subjected to DNA testing and the applicant did not knowingly fail to request DNA testing of that evidence in a prior motion for postconviction DNA testing; or (B) was previously subjected to DNA test- ing and the applicant is requesting DNA testing using a new method or technology that is substantially more probative than the prior DNA testing. (4) The specific evidence to be tested is in the possession of the Government and has been subject to a chain of custody and retained under conditions sufficient to ensure that such evidence has not been substituted, contami- nated, tampered with, replaced, or altered in any respect material to the proposed DNA testing. (5) The proposed DNA testing is reasonable in scope, uses scientifically sound methods, and is consistent with accepted forensic prac- tices. (6) The applicant identifies a theory of de- fense that— (A) is not inconsistent with an affirmative defense presented at trial; and (B) would establish the actual innocence of the applicant of the Federal or State offense referenced in the applicant’s assertion under paragraph (1). (7) If the applicant was convicted following a trial, the identity of the perpetrator was at issue in the trial. (8) The proposed DNA testing of the specific evidence may produce new material evidence that would— (A) support the theory of defense ref- erenced in paragraph (6); and (B) raise a reasonable probability that the applicant did not commit the offense. (9) The applicant certifies that the applicant will provide a DNA sample for purposes of comparison. (10) The motion is made in a timely fashion, subject to the following conditions: (A) There shall be a rebuttable presump- tion of timeliness if the motion is made within 60 months of enactment of the Jus- tice For All Act of 2004 or within 36 months of conviction, whichever comes later. Such presumption may be rebutted upon a show- ing— (i) that the applicant’s motion for a DNA test is based solely upon information used in a previously denied motion; or (ii) of clear and convincing evidence that the applicant’s filing is done solely to cause delay or harass. (B) There shall be a rebuttable presump- tion against timeliness for any motion not satisfying subparagraph (A) above. Such pre- sumption may be rebutted upon the court’s finding— (i) that the applicant was or is incom- petent and such incompetence substan- tially contributed to the delay in the ap- plicant’s motion for a DNA test; (ii) the evidence to be tested is newly discovered DNA evidence; Page 830 TITLE 18—CRIMES AND CRIMINAL PROCEDURE § 3600 (iii) that the applicant’s motion is not based solely upon the applicant’s own as- sertion of innocence and, after considering all relevant facts and circumstances sur- rounding the motion, a denial would result in a manifest injustice; or (iv) upon good cause shown. (C) For purposes of this paragraph— (i) the term ‘‘incompetence’’ has the meaning as defined in section 4241 of title 18, United States Code; (ii) the term ‘‘manifest’’ means that which is unmistakable, clear, plain, or in- disputable and requires that the opposite conclusion be clearly evident. (b) NOTICE TO THE GOVERNMENT; PRESERVATION ORDER; APPOINTMENT OF COUNSEL.— (1) NOTICE.—Upon the receipt of a motion filed under subsection (a), the court shall— (A) notify the Government; (B) allow the Government a reasonable time period to respond to the motion; and (C) order the Government to— (i) prepare an inventory of the evidence related to the case; and (ii) issue a copy of the inventory to the court, the applicant, and the Government. (2) PRESERVATION ORDER.—To the extent nec- essary to carry out proceedings under this sec- tion, the court shall direct the Government to preserve the specific evidence relating to a motion under subsection (a). (3) APPOINTMENT OF COUNSEL.—The court may appoint counsel for an indigent applicant under this section in the same manner as in a proceeding under section 3006A(a)(2)(B). (c) TESTING PROCEDURES.— (1) IN GENERAL.—The court shall direct that any DNA testing ordered under this section be carried out by the Federal Bureau of Inves- tigation. (2) EXCEPTION.—Notwithstanding paragraph (1), the court may order DNA testing by an- other qualified laboratory if the court makes all necessary orders to ensure the integrity of the specific evidence and the reliability of the testing process and test results. (3) COSTS.—The costs of any DNA testing or- dered under this section shall be paid— (A) by the applicant; or (B) in the case of an applicant who is indi- gent, by the Government. (d) TIME LIMITATION IN CAPITAL CASES.—In any case in which the applicant is sentenced to death— (1) any DNA testing ordered under this sec- tion shall be completed not later than 60 days after the date on which the Government re- sponds to the motion filed under subsection (a); and (2) not later than 120 days after the date on which the DNA testing ordered under this sec- tion is completed, the court shall order any post-testing procedures under subsection (f) or (g), as appropriate. (e) REPORTING OF TEST RESULTS.— (1) RESULTS.— (A) IN GENERAL.—The results of any DNA testing ordered under this section shall be simultaneously disclosed to the court, the applicant, and the Government. (B) RESULTS EXCLUDE APPLICANT.— (i) IN GENERAL.—If a DNA profile is ob- tained through testing that excludes the applicant as the source and the DNA com- plies with the Federal Bureau of Investiga- tion’s requirements for the uploading of crime scene profiles to the National DNA Index System (referred to in this sub- section as ‘‘NDIS’’), the court shall order that the law enforcement entity with di- rect or conveyed statutory jurisdiction that has access to the NDIS submit the DNA profile obtained from probative bio- logical material from crime scene evidence to determine whether the DNA profile matches a profile of a known individual or a profile from an unsolved crime. (ii) NDIS SEARCH.—The results of a search under clause (i) shall be simulta- neously disclosed to the court, the appli- cant, and the Government. (2) NDIS.—The Government shall submit any test results relating to the DNA of the appli- cant to NDIS. (3) RETENTION OF DNA SAMPLE.— (A) ENTRY INTO NDIS.—If the DNA test re- sults obtained under this section are incon- clusive or show that the applicant was the source of the DNA evidence, the DNA sample of the applicant may be retained in NDIS. (B) MATCH WITH OTHER OFFENSE.—If the DNA test results obtained under this section exclude the applicant as the source of the DNA evidence, and a comparison of the DNA sample of the applicant results in a match between the DNA sample of the applicant and another offense, the Attorney General shall notify the appropriate agency and pre- serve the DNA sample of the applicant. (C) NO MATCH.—If the DNA test results ob- tained under this section exclude the appli- cant as the source of the DNA evidence, and a comparison of the DNA sample of the ap- plicant does not result in a match between the DNA sample of the applicant and an- other offense, the Attorney General shall de- stroy the DNA sample of the applicant and ensure that such information is not retained in NDIS if there is no other legal authority to retain the DNA sample of the applicant in NDIS. (f) POST-TESTING PROCEDURES; INCONCLUSIVE AND INCULPATORY RESULTS.— (1) INCONCLUSIVE RESULTS.—If DNA test re- sults obtained under this section are inconclu- sive, the court may order further testing, if appropriate, or may deny the applicant relief. (2) INCULPATORY RESULTS.—If DNA test re- sults obtained under this section show that the applicant was the source of the DNA evi- dence, the court shall— (A) deny the applicant relief; and (B) on motion of the Government— (i) make a determination whether the applicant’s assertion of actual innocence was false, and, if the court makes such a finding, the court may hold the applicant in contempt; Page 831 TITLE 18—CRIMES AND CRIMINAL PROCEDURE § 3600 (ii) assess against the applicant the cost of any DNA testing carried out under this section; (iii) forward the finding to the Director of the Bureau of Prisons, who, upon receipt of such a finding, may deny, wholly or in part, the good conduct credit authorized under section 3632 on the basis of that find- ing; (iv) if the applicant is subject to the ju- risdiction of the United States Parole Commission, forward the finding to the Commission so that the Commission may deny parole on the basis of that finding; and (v) if the DNA test results relate to a State offense, forward the finding to any appropriate State official. (3) SENTENCE.—In any prosecution of an ap- plicant under chapter 79 for false assertions or other conduct in proceedings under this sec- tion, the court, upon conviction of the appli- cant, shall sentence the applicant to a term of imprisonment of not less than 3 years, which shall run consecutively to any other term of imprisonment the applicant is serving. (g) POST-TESTING PROCEDURES; MOTION FOR NEW TRIAL OR RESENTENCING.— (1) IN GENERAL.—Notwithstanding any law that would bar a motion under this paragraph as untimely, if DNA test results obtained under this section exclude the applicant as the source of the DNA evidence, the applicant may file a motion for a new trial or resentencing, as appropriate. The court shall establish a rea- sonable schedule for the applicant to file such a motion and for the Government to respond to the motion. (2) STANDARD FOR GRANTING MOTION FOR NEW TRIAL OR RESENTENCING.—The court shall grant the motion of the applicant for a new trial or resentencing, as appropriate, if the DNA test results, when considered with all other evidence in the case (regardless of whether such evidence was introduced at trial), establish by compelling evidence that a new trial would result in an acquittal of— (A) in the case of a motion for a new trial, the Federal offense for which the applicant is sentenced to imprisonment or death; and (B) in the case of a motion for resen- tencing, another Federal or State offense, if evidence of such offense was admitted during a Federal sentencing hearing and exonera- tion of such offense would entitle the appli- cant to a reduced sentence or a new sen- tencing proceeding. (h) OTHER LAWS UNAFFECTED.— (1) POST-CONVICTION RELIEF.—Nothing in this section shall affect the circumstances under which a person may obtain DNA testing or post-conviction relief under any other law. (2) HABEAS CORPUS.—Nothing in this section shall provide a basis for relief in any Federal habeas corpus proceeding. (3) NOT A MOTION UNDER SECTION 2255.—A mo- tion under this section shall not be considered to be a motion under section 2255 for purposes of determining whether the motion or any other motion is a second or successive motion under section 2255. (Added Pub. L. 108–405, title IV, § 411(a)(1), Oct. 30, 2004, 118 Stat. 2279; amended Pub. L. 114–324, § 11(a), Dec. 16, 2016, 130 Stat. 1956.) Editorial Notes REFERENCES IN TEXT Enactment of the Justice For All Act of 2004, referred to in subsec. (a)(10)(A), is the enactment of Pub. L. 108–405, which was approved Oct. 30, 2004. AMENDMENTS 2016—Subsec. (a). Pub. L. 114–324, § 11(a)(1), sub- stituted ‘‘sentenced to’’ for ‘‘under a sentence of’’ in in- troductory provisions. Subsec. (a)(1)(A). Pub. L. 114–324, § 11(a)(1), sub- stituted ‘‘sentenced to’’ for ‘‘under a sentence of’’. Subsec. (a)(1)(B)(i). Pub. L. 114–324, § 11(a)(2)(A), struck out ‘‘death’’ after ‘‘Federal’’. Subsec. (a)(3)(A). Pub. L. 114–324, § 11(a)(2)(B), struck out dash after ‘‘the applicant did not’’ and cl. (ii) des- ignation before ‘‘knowingly fail’’ and struck out cl. (i) which read as follows: ‘‘knowingly and voluntarily waive the right to request DNA testing of that evidence in a court proceeding after the date of enactment of the Innocence Protection Act of 2004; or’’. Subsec. (b)(1)(C). Pub. L. 114–324, § 11(a)(3), added sub- par. (C). Subsec. (e)(1). Pub. L. 114–324, § 11(a)(4)(A), amended par. (1) generally. Prior to amendment, text read as fol- lows: ‘‘The results of any DNA testing ordered under this section shall be simultaneously disclosed to the court, the applicant, and the Government.’’ Subsec. (e)(2). Pub. L. 114–324, § 11(a)(4)(B), substituted ‘‘to NDIS’’ for ‘‘to the National DNA Index System (re- ferred to in this subsection as ‘NDIS’)’’. Subsec. (g)(2)(A). Pub. L. 114–324, § 11(a)(1), sub- stituted ‘‘sentenced to’’ for ‘‘under a sentence of’’. Subsec. (g)(2)(B). Pub. L. 114–324, § 11(a)(5), struck out ‘‘death’’ after ‘‘during a Federal’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Pub. L. 108–405, title IV, § 411(c), Oct. 30, 2004, 118 Stat. 2284, provided that: ‘‘This section [enacting this chap- ter and provisions set out as a note under this section] and the amendments made by this section shall take ef- fect on the date of enactment of this Act [Oct. 30, 2004] and shall apply with respect to any offense committed, and to any judgment of conviction entered, before, on, or after that date of enactment.’’ SHORT TITLE OF 2004 AMENDMENT Pub. L. 108–405, title IV, § 401, Oct. 30, 2004, 118 Stat. 2278, provided that: ‘‘This title [enacting this chapter and sections 14136e and 14163 to 14163e of Title 42, The Public Health and Welfare, amending section 2513 of Title 28, Judiciary and Judicial Procedure, and enact- ing provisions set out as notes under this section and section 14136 of Title 42] may be cited as the ‘Innocence Protection Act of 2004’.’’ SYSTEM FOR REPORTING MOTIONS Pub. L. 108–405, title IV, § 411(b), Oct. 30, 2004, 118 Stat. 2284, provided that: ‘‘(1) ESTABLISHMENT.—The Attorney General shall es- tablish a system for reporting and tracking motions filed in accordance with section 3600 of title 18, United States Code. ‘‘(2) OPERATION.—In operating the system established under paragraph (1), the Federal courts shall provide to the Attorney General any requested assistance in oper- ating such a system and in ensuring the accuracy and completeness of information included in that system. ‘‘(3) REPORT.—Not later than 2 years after the date of enactment of this Act [Oct. 30, 2004], the Attorney Gen- eral shall submit a report to Congress that contains— Page 832 TITLE 18—CRIMES AND CRIMINAL PROCEDURE § 3600A 1 Editorially supplied. 2 So in original. Does not conform to subchapter heading. ‘‘(A) a list of motions filed under section 3600 of title 18, United States Code, as added by this title; ‘‘(B) whether DNA testing was ordered pursuant to such a motion; ‘‘(C) whether the applicant obtained relief on the basis of DNA test results; and ‘‘(D) whether further proceedings occurred fol- lowing a granting of relief and the outcome of such proceedings. ‘‘(4) ADDITIONAL INFORMATION.—The report required to be submitted under paragraph (3) may include any other information the Attorney General determines to be relevant in assessing the operation, utility, or costs of section 3600 of title 18, United States Code, as added by this title, and any recommendations the Attorney General may have relating to future legislative action concerning that section.’’ § 3600A. Preservation of biological evidence (a) IN GENERAL.—Notwithstanding any other provision of law, the Government shall preserve biological evidence that was secured in the in- vestigation or prosecution of a Federal offense, if a defendant is sentenced to imprisonment for such offense. (b) DEFINED TERM.—For purposes of this sec- tion, the term ‘‘biological evidence’’ means— (1) a sexual assault forensic examination kit; or (2) semen, blood, saliva, hair, skin tissue, or other identified biological material. (c) APPLICABILITY.—Subsection (a) shall not apply if— (1) after a conviction becomes final and the defendant has exhausted all opportunities for direct review of the conviction, the defendant is notified that the biological evidence may be destroyed and the defendant does not file a motion under section 3600 within 180 days of receipt of the notice; (2)(A) the evidence must be returned to its rightful owner, or is of such a size, bulk, or physical character as to render retention im- practicable; and (B) the Government takes reasonable meas- ures to remove and preserve portions of the material evidence sufficient to permit future DNA testing; or (3) the biological evidence has already been subjected to DNA testing under section 3600 and the results included the defendant as the source of such evidence. (d) OTHER PRESERVATION REQUIREMENT.—Noth- ing in this section shall preempt or supersede any statute, regulation, court order, or other provision of law that may require evidence, in- cluding biological evidence, to be preserved. (e) REGULATIONS.—Not later than 180 days after the date of enactment of the Innocence Protection Act of 2004, the Attorney General shall promulgate regulations to implement and enforce this section, including appropriate dis- ciplinary sanctions to ensure that employees comply with such regulations. (f) CRIMINAL PENALTY.—Whoever knowingly and intentionally destroys, alters, or tampers with biological evidence that is required to be preserved under this section with the intent to prevent that evidence from being subjected to DNA testing or prevent the production or use of that evidence in an official proceeding, shall be fined under this title, imprisoned for not more than 5 years, or both. (g) HABEAS CORPUS.—Nothing in this section shall provide a basis for relief in any Federal ha- beas corpus proceeding. (Added Pub. L. 108–405, title IV, § 411(a)(1), Oct. 30, 2004, 118 Stat. 2283; amended Pub. L. 114–324, § 11(b), Dec. 16, 2016, 130 Stat. 1957.) Editorial Notes REFERENCES IN TEXT The date of enactment of the Innocence Protection Act of 2004, referred to in subsec. (e), is the date of en- actment of Pub. L. 108–405, which was approved Oct. 30, 2004. AMENDMENTS 2016—Subsec. (a). Pub. L. 114–324, § 11(b)(1), sub- stituted ‘‘sentenced to’’ for ‘‘under a sentence of’’. Subsec. (c). Pub. L. 114–324, § 11(b)(2), redesignated pars. (3) to (5) as (1) to (3), respectively, and struck out former pars. (1) and (2) which read as follows: ‘‘(1) a court has denied a request or motion for DNA testing of the biological evidence by the defendant under section 3600, and no appeal is pending; ‘‘(2) the defendant knowingly and voluntarily waived the right to request DNA testing of the biological evi- dence in a court proceeding conducted after the date of enactment of the Innocence Protection Act of 2004;’’. CHAPTER 229—POSTSENTENCE ADMINISTRATION Subchapter Sec.1 A. Probation .............................................. 3601 B. Fines ....................................................... 3611 C. Imprisonment ....................................... 3621 D. Risk and Needs Assessment 2 ........... 3631 Editorial Notes PRIOR PROVISIONS A prior chapter 229 (§ 3611 et seq.) was repealed (ex- cept sections 3611, 3612, 3615, 3617 to 3620 which were re- numbered sections 3665 to 3671, respectively), by Pub. L. 98–473, title II, §§ 212(a)(1), (2), 235(a)(1), Oct. 12, 1984, 98 Stat. 1987, 2031, as amended, effective Nov. 1, 1987, and applicable only to offenses committed after the taking effect of such repeal. See Effective Date note set out under section 3551 of this title. Section 3611 renumbered section 3665 of this title. Section 3612 renumbered section 3666 of this title. Section 3613, act June 25, 1948, ch. 645, 62 Stat. 840, re- lated to fines for setting grass and timber fires. Section 3614, act June 25, 1948, ch. 645, 62 Stat. 840, re- lated to fine for seduction. Section 3615 renumbered section 3667 of this title. Section 3616, act June 25, 1948, ch. 645, 62 Stat. 840, au- thorized use of confiscated vehicles by narcotics agents and payment of costs of acquisition, maintenance, re- pair, and operation thereof, prior to repeal by Pub. L. 91–513, title III, § 1101(b)(2)(A), Oct. 27, 1970, 84 Stat. 1292. Section 3617 renumbered section 3668 of this title. Section 3618 renumbered section 3669 of this title. Section 3619 renumbered section 3670 of this title. Section 3620 renumbered section 3671 of this title. Section 3621, added Pub. L. 98–596, § 6(a), Oct. 30, 1984, 98 Stat. 3136, related to criminal default on fine. Section 3622, added Pub. L. 98–596, § 6(a), Oct. 30, 1984, 98 Stat. 3136, related to factors relating to imposition of fines. Section 3623, added Pub. L. 98–596, § 6(a), Oct. 30, 1984, 98 Stat. 3137, related to alternative fines. Section 3624, added Pub. L. 98–596, § 6(a), Oct. 30, 1984, 98 Stat. 3138, related to security for stayed fine.