United States of America v. Pascal Sylla

In the
United States Court of Appeals
For the Seventh Circuit
No. 14-2813
U NITED S TATES OF AMERICA,
Plaintiff-Appellee,
v.
PASCAL SYLLA,
Defendant-Appellant.
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:13-cr-00151-SEB-TAB-1 — Sarah Evans Barker, Judge.
A RGUED JUNE 4, 2015 — DECIDED JUNE 25, 2015
Before B AUER, R OVNER, and HAMILTON, Circuit Judges.
BAUER, Circuit Judge. In December 2010, deoxyribonucleic
acid (“DNA”) testing linked defendant-appellant, Pascal Sylla,
to an attempted bank robbery that occurred on August 1, 2003.
Sylla was indicted on July 16, 2013, in connection with that
attempted robbery of nearly ten years prior. He moved to
dismiss the indictment, claiming that the applicable five-year
statute of limitations had run, see 18 U.S.C. § 3282(a). The
district court denied his motion and Sylla proceeded to trial;

-- 1 of 7 --

2 No. 14-2813
the jury found him guilty. Sylla appeals, arguing that the
federal DNA tolling statute, 18 U.S.C. § 3297, is unconstitu-
tional as applied to his case. We reject Sylla’s constitutional
challenge and affirm his conviction.
I. BACKGROUND
On August 1, 2003, an armed man wearing dark clothing
and a ski mask entered the Madison County Federal Credit
Union in Anderson, Indiana. He ordered the only customer in
the credit union at the time, Ray Novak, to get down on the
ground. The robber then leapt over the middle of three teller
windows, pointed his semi-automatic pistol at the lead bank
teller, and announced that he was robbing the bank. At that
moment, Novak, who also happened to be the Assistant Chief
of Police for the Anderson Police Department, was very
concerned for the tellers’ safety. He rose from the ground,
drew his five-shot revolver, announced that he was police and
ordered the robber to surrender. The robber refused to stand
down and a gunfight ensued. Novak fired three shots, one of
which struck the robber, causing him to bleed. The robber
returned fire. Novak, running low on ammunition at this point,
left the credit union in an attempt to retrieve another gun,
more ammunition, and a police radio from his unmarked
police car parked outside. The robber pursued Novak, fired
another shot in his direction, and then fled the scene.
After backup arrived, law enforcement canvassed the area,
including area hospitals, for evidence of an individual receiv-
ing treatment for wounds resembling those sustained in
gunfire. Despite these efforts, the robber went unapprehended.

-- 2 of 7 --

No. 14-2813 3
Meanwhile, back at the crime scene, Steven First, the
laboratory director at the Anderson Police Department
Laboratory, collected a Madison County Federal Credit Union
receipt covered with fresh blood. The receipt was found in a
trash can behind teller window one, where the robber had been
positioned during the shootout. First considered the blood on
the receipt to be an exceptionally good specimen since it had
not been on the floor, stepped on, or otherwise mixed with
other evidence at the scene. Anderson police sent the blood-
covered receipt to the Indiana State Police Laboratory for DNA
analysis. A single source DNA profile was created from the
evidence; no suspect was matched to the DNA profile and the
case went cold.
Things heated up again on December 27, 2010, when the
Indiana State Police Laboratory sent a formal DNA analysis
report to the Anderson Police Department. The report stated
that there had been a “hit” in the Combined DNA Index
System (“CODIS”) and that the previously unidentified DNA
from the blood-spattered bank receipt matched to Pascal Sylla,
whose DNA had been entered into CODIS by the Bureau of
Prisons after he pleaded guilty to a federal bank robbery
charge in 2006. In March 2011, the Indiana State Police Labora-
tory confirmed the CODIS match by comparing a DNA sample
recovered from Sylla via buccal (cheek) swab with the sample
lifted from the bloodied bank receipt.
A two-count indictment issued on July 16, 2013, charging
Sylla with attempted bank robbery in violation of 18 U.S.C.
§§ 2113(a), 2113(d), and 3297, and discharging a firearm during
a crime of violence in violation of 18 U.S.C. §§ 924(c)(1)(A)(iii),
924(a)(1)(C)(i), and 3297. Sylla moved to dismiss the indict-

-- 3 of 7 --

4 No. 14-2813
ment, as previously stated, and argued, the pre-indictment
delay violated his Fifth Amendment due process rights. The1
district court denied his motion, holding Sylla’s arguments
foreclosed by our decision in United States v. Hagler, 700 F.3d
1091 (7th Cir. 2012). After the jury found him guilty of both
counts, the district court sentenced him to 420 months’ impris-
onment. This appeal followed.
II. DISCUSSION
Sylla contends that the federal tolling statute, 18 U.S.C.
§ 3297, is unconstitutionally vague as applied to his case. We
review the constitutionality of a statute, a question of law,
de novo. Hegwood v. City of Eau Claire, 676 F.3d 600, 603 (7th Cir.
2012).
In 2004, Congress enacted 18 U.S.C. § 3297 as part of the
Justice for All Act, Pub. L. 180–405, § 204, 118 Stat. 2260, 2271.
Section 3297 provides:
In a case in which DNA testing implicates an identi-
fied person in the commission of a felony, no statute
of limitations that would otherwise preclude prose-
cution of the offense shall preclude such prosecution
until a period of time following the implication of
the person by DNA testing has elapsed that is equal
to the otherwise applicable limitation period.
We first interpreted § 3297 in Hagler, where DNA analysis
conducted in 2008 identified the defendant in a then-unsolved
Sylla does not argue on appeal that the pre-indictment delay violated his
1
due process rights.

-- 4 of 7 --

No. 14-2813 5
attempted bank robbery that was committed in 2000. 700 F.3d
at 1095–96. Hagler was indicted in 2010, nearly ten years after
the attempted bank robbery occurred. Id. at 1096. Following his
conviction, Hagler appealed, contending that he was charged
outside of the five-year limitations period applicable to bank
robbery under 18 U.S.C. § 3282(a). Id. We determined that
§ 3297 extends the otherwise applicable limitations period so
that it begins to run at the moment when DNA evidence
“implicates” someone in the crime, i.e., “matches to a single,
identifiable person.” Id. at 1097–98. Because the government
indicted Hagler in 2010, well within five years (the otherwise
applicable limitation period) of the DNA testing in 2008 that
implicated him in the attempted bank robbery, we held
Hagler’s prosecution to be timely. Id. We also rejected the void-
for-vagueness argument that Hagler raised in a footnote,
holding that Ҥ 3297 is perfectly susceptible to reasoned
interpretation.” Id. at 1098. With these principles in mind, we
now turn to Sylla’s challenge to the constitutionality of § 3297.
As an initial matter, we note that Sylla’s vagueness chal-
lenge does not fit neatly within the void-for-vagueness
doctrine. To satisfy due process, the doctrine’s underlying
concern, “a penal statute [must] define the criminal offense [1]
with sufficient definiteness that ordinary people can under-
stand what conduct is prohibited and [2] in a manner that does
not encourage arbitrary and discriminatory enforcement.”
Skilling v. United States, 561 U.S. 358, 402–03 (2010) (alterations
in original) (internal quotations omitted). A statute that does
not provide “fair notice” of what “conduct is forbidden” or “is
so indefinite that it encourages arbitrary and erratic arrests and
convictions” is deemed void for vagueness. Colautti v. Franklin,

-- 5 of 7 --

6 No. 14-2813
439 U.S. 379, 390 (1979) (internal quotations omitted). The
statutory provision at issue here, § 3297, does not attempt to
prohibit or prescribe any conduct, making the type of notice
that the vagueness doctrine seeks to ensure rather irrelevant.
See United States v. Brierton, 165 F.3d 1133, 1139 (7th Cir. 1999)
(“[T]he vagueness doctrine presumes a law that attempts to
proscribe or prescribe conduct.”); see also United States v.
Tichenor, 683 F.3d 358, 365 (7th Cir. 2012). Furthermore, § 3297
is not so vague as to encourage the arbitrary and discrimina-
tory enforcement that the vagueness doctrine seeks to protect
against. Rather than “permit a standardless sweep that allows
policemen, prosecutors, and juries to pursue their personal
predilections,” Kolender v. Lawson, 461 U.S. 352, 358 (1983)
(internal quotations omitted), the provision operates only
where DNA testing matches an individual with a crime. In
this case, that match occurred by virtue of CODIS, a federal
DNA testing system that functions automatically, comparing
compilations of DNA profiles in search of a match. Sylla has
not shown, nor is there any reason to suspect, that CODIS
operates in a manner that permits the sort of arbitrary and
discriminatory enforcement that the vagueness doctrine
proscribes.
At any rate, even assuming the vagueness doctrine applies
to § 3297, Sylla’s vagueness challenge cannot prevail because
application of that provision to his case is sufficiently straight-
forward. On December 27, 2010, DNA evidence “implicated”
Sylla as the masked man who attempted to rob the Madison
County Federal Credit Union on August 1, 2003. Ordinarily,
the five-year statute of limitations applicable to bank robbery
under § 3282(a) would have expired on August 1, 2008;

-- 6 of 7 --

No. 14-2813 7
however, pursuant to § 3297’s plain and unambiguous terms,
the DNA match on December 27, 2010, extended the limita-
tions period for an additional five years from that date. The
government indicted Sylla on July 16, 2013, well within this
five-year window.
Plainly stated, there is nothing vague about § 3297 as
applied to this case. Although it is possible to envision a
situation where § 3297’s tolling effect works to materially
prejudice a defendant’s ability to put on a defense, Sylla has
not identified any such prejudice that occurred in his case.
Accordingly, we reject Sylla’s constitutional challenge to
§ 3297.
III. CONCLUSION
For the aforementioned reasons, Sylla’s conviction is
AFFIRMED.

-- 7 of 7 --