U.S. Code » Title 18 » Part PART II— CRIMINAL PROCEDURE › Chapter CHAPTER 228A— POST-CONVICTION DNA TESTING

18 U.S.C. § 3600A

Preservation of biological evidence

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(a)In General.—Notwithstanding any other provision of law, the Government shall preserve biological evidence that was secured in the investigation or prosecution of a Federal offense, if a defendant is sentenced to imprisonment for such offense.(b)Defined Term.—For purposes of this section, 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 impracticable; and(B) the Government takes reasonable measures 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.—Nothing in this section shall preempt or supersede any statute, regulation, court order, or other provision of law that may require evidence, including 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 disciplinary 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 habeas 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 NotesReferences in Text

The date of enactment of the Innocence Protection Act of 2004, referred to in subsec. (e), is the date of enactment of Pub. L. 108–405, which was approved Oct. 30, 2004.

Amendments

2016—Subsec. (a). Pub. L. 114–324, § 11(b)(1), substituted “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 evidence in a court proceeding conducted after the date of enactment of the Innocence Protection Act of 2004;”.

Notes of Decisions
Cited in 12 cases (2 in the last 5 years), 2000–2023 · leading case: Wilkie v. Robbins, 551 U.S. 537 (2007).
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Wilkie v. Robbins, 551 U.S. 537 (2007). “2519 , note following 18 U.S.C. § 3600A, arguing that the position of the United States was vexatious, frivolous, or in bad faith.”
Hood v. United States, 28 A.3d 553 (D.C. 2011). “” 18 U.S.C. § 3600A (b) (2006). The Maryland statute comparably states that " '[b]iological evidence' includes, but is not limited to, any blood, hair, saliva, semen, epithelial cells, buccal cells, or other bodily substances from which genetic marker groupings may be obtained.”
Pena v. United States, 534 F.3d 92 (2d Cir. 2008). “Although an alternative ground for the magistrate judge’s holding was not necessary, the court concluded that Pena was not prejudiced by counsel’s failure to file because the chances of the petition succeeding were extremely remote.”
United States v. Thomas, 597 F. App'x 882 (7th Cir. 2015). · cites it 3× “And, indeed, on appeal Thomas appears to have abandoned his § 3600 claim entirely and now asserts that the destruction of the bags violated 18 U.S.C. § 3600A, a separate provision of the Innocence Protection Act that requires preservation of certain “biological evidence.”
United States v. Curry, 641 F. App'x 607 (7th Cir. 2016). · cites it 2× “See 18 U.S.C. § 3600A. The government responded that the evidence already had been destroyed, and the district court denied Curry's motion in the same order that, disposed of his motion to compel release of the DNA case file.”
United States v. William Axsom, II, 761 F.3d 895 (8th Cir. 2014). “Finally, pursuant to 18 U.S.C. § 3600A(e), Axsom was granted funds to retain a computer expert to assist him in his defense.”
Carter v. State of South Dakota, No. 4:23-cv-04037 (D.S.D. Nov. 13, 2023). · cites it 3× “Motion to Preserve “Biological Evidence” Carter seeks an order, pursuant to 18 U.S.C. § 3600A, requiring Child’s Voice, the South Dakota Department of Health and another other entity to present all “biological evidence[.”
United States v. Terry Thomas, No. 14-1421 (7th Cir. Jan. 23, 2015). · cites it 3× “And, indeed, on appeal Thomas appears to have abandoned his § 3600 claim entirely and now asserts that the destruction of the bags violated 18 U.S.C. § 3600A, a separate provision of the Innocence Protection Act that requires preservation of certain “biological evidence.”
United States v. Daniel W. Curry, No. 15-2741 (7th Cir. Apr. 19, 2016). “The statute provides only for a criminal penalty if a person “knowingly and intentionally destroys, alters, or tampers with biological evidence that is required to be preserved .”
United States v. Brett Kimberlin, No. 21-2714 (7th Cir. May 17, 2022). “passage the judge relied upon invokes the similarly numbered 18 U.S.C. § 3600A: Inapplicability following release.”
Donaldson v. MBR Cent. Ill. Pizza, LLC, No. 3:18-cv-03048, 2019 WL 4447969 (C.D. Ill. Sept. 17, 2019). “By way of comparison, the current hourly rate for a lawyer appointed to a non-capitol case under the Criminal Justice Act, 18 U.S.C. § 3600A, is $148 per hour. for Leave to File Document Under Seal, seeking to file the settlement agreement under seal.”
United States v. Osoba, No. 99-3064 (6th Cir. May 25, 2000). “” 18 U.S.C. § 3600A(e)(1) (1999) Cir. 1992) (quoting United States v.”
18 U.S.C. § 3600A(b)(1): 1 case
United States v. Terry Thomas, No. 14-1421 (7th Cir. Jan. 23, 2015). “And, indeed, on appeal Thomas appears to have abandoned his § 3600 claim entirely and now asserts that the destruction of the bags violated 18 U.S.C. § 3600A, a separate provision of the Innocence Protection Act that requires preservation of certain “biological evidence.”
18 U.S.C. § 3600A(b)(l): 1 case
United States v. Thomas, 597 F. App'x 882 (7th Cir. 2015). “And, indeed, on appeal Thomas appears to have abandoned his § 3600 claim entirely and now asserts that the destruction of the bags violated 18 U.S.C. § 3600A, a separate provision of the Innocence Protection Act that requires preservation of certain “biological evidence.”
18 U.S.C. § 3600A(e): 1 case
United States v. William Axsom, II, 761 F.3d 895 (8th Cir. 2014). “Finally, pursuant to 18 U.S.C. § 3600A(e), Axsom was granted funds to retain a computer expert to assist him in his defense.”
18 U.S.C. § 3600A(e)(1): 1 case
United States v. Osoba, No. 99-3064 (6th Cir. May 25, 2000). “” 18 U.S.C. § 3600A(e)(1) (1999) Cir. 1992) (quoting United States v.”
18 U.S.C. § 3600A(f): 4 cases
United States v. Thomas, 597 F. App'x 882 (7th Cir. 2015). “And, indeed, on appeal Thomas appears to have abandoned his § 3600 claim entirely and now asserts that the destruction of the bags violated 18 U.S.C. § 3600A, a separate provision of the Innocence Protection Act that requires preservation of certain “biological evidence.”
United States v. Curry, 641 F. App'x 607 (7th Cir. 2016). “See 18 U.S.C. § 3600A. The government responded that the evidence already had been destroyed, and the district court denied Curry's motion in the same order that, disposed of his motion to compel release of the DNA case file.”
United States v. Daniel W. Curry, No. 15-2741 (7th Cir. Apr. 19, 2016). “The statute provides only for a criminal penalty if a person “knowingly and intentionally destroys, alters, or tampers with biological evidence that is required to be preserved .”
United States v. Terry Thomas, No. 14-1421 (7th Cir. Jan. 23, 2015). “And, indeed, on appeal Thomas appears to have abandoned his § 3600 claim entirely and now asserts that the destruction of the bags violated 18 U.S.C. § 3600A, a separate provision of the Innocence Protection Act that requires preservation of certain “biological evidence.”
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