FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-30160
Plaintiff-Appellee, D.C. No.
v. 3:03-cr-05258-
THOMAS EDWARD KRIESEL, Jr., RBL-1
Defendant-Appellant.
ORDER
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Argued and Submitted
May 3, 2010—Seattle, Washington
Filed May 13, 2010
Before: Cynthia Holcomb Hall, Kim McLane Wardlaw and
Ronald M. Gould, Circuit Judges.
COUNSEL
Colin Fieman, Assistant Federal Public Defender, Tacoma,
Washington, for defendant-appellant Thomas Edward Kriesel,
Jr.
Jenny A. Durkan, United States Attorney, and Helen J. Brun-
ner (argued), Assistant United States Attorney, United States
Attorney’s Office, Seattle, Washington, for plaintiff-appellee
United States of America.
Robert A. Hyde, Rafel Law Group PLLC, Seattle, Washing-
ton, and Douglas B. Klunder, ACLU of Washington Founda-
6921
6922 UNITED STATES v. KRIESEL
tion, Seattle, Washington, for amicus curiae American Civil
Liberties Union of Washington.
ORDER
Thomas Edward Kriesel, Jr., appeals the district court’s
denial of his motion brought pursuant to Federal Rule of
Criminal Procedure 41(g). The district court had jurisdiction
under 28 U.S.C. § 1331. See United States v. Ibrahim, 522
F.3d 1003, 1005, 1007 (9th Cir. 2008) (stating that where
“there were no criminal proceedings pending at the time of
filing, the district court properly treated the [Rule 41(g)]
motion as a civil complaint,” and “[t]he district court had
jurisdiction pursuant to 28 U.S.C. § 1331”).
In his motion to the district court, Kriesel sought (1) return
of his blood sample and (2) the removal of information
derived from that sample entered into the government data-
base of DNA profiles known as the Combined DNA Index
System Database (“CODIS”). Kriesel’s motion was premised
on resolution of the following constitutional question posed
by us in prior cases rejecting Fourth Amendment objections
to CODIS: “Once those previously on supervised release have
wholly cleared their debt to society, the question may be
raised, ‘Should the CODIS entry be erased?’ ” United States
v. Kriesel, 508 F.3d 941, 949 (9th Cir. 2007) (quoting United
States v. Kincade, 379 F.3d 813, 841 (9th Cir. 2004) (en banc)
(Gould, J., concurring in the judgment)). The district court
denied the motion, relying on Kriesel and Kincade, balanced
Kriesel’s privacy rights against the government’s interests,
and reasoned that “the government’s ‘undeniably compelling’
and ‘monumental’ interests in deterring future crimes and
solving past crimes outweigh Kriesel’s diminished privacy
interest in his identifying information even after his supervi-
sion has ended.” The district court held that “[t]he retention
of [Kriesel’s] DNA sample and information derived therefrom
UNITED STATES v. KRIESEL 6923
in the CODIS database is not unreasonable and does not vio-
late the Fourth Amendment.”
On appeal, Kriesel abandoned his pursuit of the constitu-
tional question, raised by us in Kriesel and Kincade, whether
a DNA profile should be removed from CODIS after supervi-
sion has ended. Kriesel no longer challenges the govern-
ment’s retention of his CODIS DNA profile and no longer
asks that the profile be deleted.1
Kriesel’s sole contention on appeal is that he is entitled to
the return of his blood sample, and has now made clear that
his claim “rests on Rule 41(g) rather than the Fourth Amend-
ment.” The stand-alone return-of-property issue before us
now, when before the district court, was conjoined with and
subsumed by Kriesel’s constitutional argument. The parties
did not address, and the district court did not decide, the key
issues relevant to whether Kriesel is entitled to the return of
his blood sample under Rule 41(g). These issues include: (1)
whether a blood sample is property within the meaning of
Rule 41(g); (2) whether Kriesel is aggrieved by the govern-
ment’s retention of his blood sample; (3) an assessment of the
government’s interest in retaining Kriesel’s blood sample; and
(4) possibly other issues we do not list here, but that the par-
ties or the district court may view as relevant on remand. See
United States v. Kaczynski, 416 F.3d 971, 974 (9th Cir. 2005).
We will not resolve these issues for the first time on appeal.
See Cascade Health Solutions v. PeaceHealth, 515 F.3d 883,
916 n.27 (9th Cir. 2008).
1
Accordingly, we affirm the part of the district court’s order denying
this relief. Because no controversy on this issue is before us on appeal, we
are without jurisdiction to address, and we express no view on, the merits
of the question of whether the Fourth Amendment requires that a CODIS
entry be erased once supervised release has ended. We decline to give an
advisory opinion on this issue which is not permissible under our Article
III jurisdiction. See Flast v. Cohen, 392 U.S. 83, 95-97 (1968).
6924 UNITED STATES v. KRIESEL
We vacate the district court’s order as to Kriesel’s Rule
41(g) claim for return of his blood sample and we remand to
permit the district court to decide the now-isolated Rule 41(g)
issue in the first instance. We remand on an open record so
that the parties may provide briefing and evidence on these
issues under procedures approved by the district court that are
not inconsistent with this order.
AFFIRMED IN PART, VACATED AND REMANDED
IN PART.
IT IS SO ORDERED.