United States v. John G. Reynard

PREGERSON, Before HARRY A. TASHIMA, WALLACE and RICHARD CLIFTON, Judges. R. Circuit PREGERSON, J., opinion delivered the 11(D), through of the Court as to Parts I CLIFTON, JJ., which TASHIMA CLIFTON, J., joined. delivered the 11(E), opinion of the Court as to Part TASHIMA, J., joined. PREGERSON, J., dissenting filed a 11(E) opinion as to Part and dissents from judgment. PREGERSON, Judge, Circuit with CLIFTON, whom TASHIMA and Circuit join. Judges, Appellant John G. seeks review of the district court’s decision to revoke his supervised release. The district court re- Reynard’s supervised voked release be- cause he proffer sample, refused blood required Analysis Backlog the DNA (“DNA Act”), Elimination Act of 2000 (2000), Pub.L. No. Stat. (codified (2000)). at 42 U.S.C. 14135a provide Failure to a blood consti- a violation super- tuted of the terms of his Reynard appeals, vised release. contend- (1) state, Reynard’s super- or local crime.” violates the ing (2) commenced in Amendment, impermissibly vised release November Fourth (3) retroactive, Ex Facto violates the Post Clause,

Clause, the Commerce violates History Passage the Fifth Amendment. violates below, affirm the reasons stated For court’s revocation

the district Congress passed the Violent supervised release. Act, Crime and Law Enforcement Control FBI

authorizing the to establish national I. PROCEDURAL FACTUAL AND index of DNA from convicted fed-

HISTORY eral offenders. See Violent Crime Control 1994, Act of and Law Enforcement Pub.L. Background A. Factual 103-322, 13, (Sept. No. 108 Stat. 1796 Underlying Crime 1. 1994). authority The FBI exercised this 23, 1998, by creating the DNA Index Reynard entered a Combined July On (“CODIS”), System a national DNA America branch and index.1 Diego Bank of San addition, fifty legislatures In all state en- demanding a handed the teller note acted statutes offend- warning requiring convicted empty the cash drawer she provide samples entry DNA into gun. a The teller ers possessed her that he $2,325. system. H.R.Rep. Reynard took the the CODIS No. Reynard gave 2000). 26, 106-900(1), (Sept. at 8 money but turned himself to a and fled (“FBI”) Investigation Federal Bureau of 1996, however, Between 1994 and the days office a few later. He admitted authority FBI lacked the to include DNA robbery. Reynard having committed the data from federal offenders in the CODIS drug user explained that he was habitual Congress, databank. See id. crime. and that his habit motivated the part of the Antiterrorism and Effective (“AEDPA”), 5,1998, jury Penalty indicted Death Act of 1996 August grand On authority FBI robbery, expressly provided the with Reynard for one count of bank 2113(a). samples all DNA Reynard to include CODIS violation of 18 U.S.C. AED- taken from federal offenders. See guilty on October 1998. On pleaded 811(a)(2), §PA Pub.L. No. sentenced to December he was 1996) (providing that custody, by (April followed three thirty months in Stat. “may expand court the Director of the FBI years supervised release. The to include Federal Reynard comply [CODIS] with several combined ordered release, in the Dis- supervised including crimes and crimes committed conditions of Columbia”). “[sjubmit trict of At least one member person, that he to a search of residence, Congress legisla- at a of believed that the property, abode or vehicle begin collecting FBI to in a man- tion authorized the reasonable time and reasonable im- Officer,” from federal offenders samples re- DNA by ner the Probation federal, mediately.2 “eommit[ting] frain another from (“We Cong. thought by quali- Rec. at SI 1647 1. is a national database used 2. See CODIS already loophole through closed this "law officials to link DNA fied enforcement 'may legislation provides that the FBI evidence found at a crime scene with sus- which expand crimes pect already the database to include federal whose DNA is on file." 146 S11645, ...,’ (daily express more Cong. ed. Dec. but federal officials claim Rec. S11647 6, 2000) (statement Kohl). authority necessary. so sure We are not of Sen. Reynard’s mandatory condi- passage after of violation of point At some AEDPA, Justice Department supervision. Reynard tions of met with (“DOJ”) the conclusion that reached Probation David Officer Dilbeck June did not vest it with suffi- legislation meeting, Reynard 2002. At the received a samples cient to collect of In- one-page “DNA Collection Letter No. H.R.Rep. offenders. See from federal struction,” again informed 106-900(1), at In December compliance with the enact more requested FBI mandatory comply and that his failure to authority to allow the explicit statutory A would constitute a Class misdemeanor from federal FBI to take DNA mandatory and a violation of a condition of See id. offenders for inclusion CODIS. Reynard signed supervised his release. Congress passed December On letter, indicating that “understood] he requires DNA Act. The DNA Act requirements agree[d] to abide (“Probation United States Probation Office day, Reynard re- them.” On the same Office”) to collect a DNA ceived notice that he should arrive for parolee, releas- probationer, blood draw a Probation Office on June is, been, convicted of a ee “who or has qualifying offense.” U.S.C. 10, 2002, 14135a(a)(2). Reynard appeared for On June robbery § a qualify- Bank 14135a(d)(l)(E). However, appointment. § his after discus ing offense. See id. attorney, Reynard sion to requires cooperation The DNA Act with his refused 13, 2002, as “a condition of ... collection of DNA have his blood drawn. On June probation, parole, supervised release.” petitioned Probation Officer Dilbeck for an 14135a(a)(5). punish- (“OSC”) § Id. why to Rey Order Show Cause anyone es with a misdemeanor “who fails nard’s release should not be cooperate to in the collection of’ a DNA Specifically, revoked. Officer Dilbeck al taken, sample. sample Id. Once leged Reynard mandatory violated a FBI gives Probation Office it to the supervision condition of he “declined when analysis entry into CODIS. See cooperate to the collection of his blood 14135a(b). § U.S.C. sample, in order to obtain a DNA viola July tion of U.S.C. 14135a.” On Proceedings in District Court 2002, Reynard filed a motion to dismiss May the Probation Office

On petition. Probation Officer Dilbeck’s OSC Reynard’s by notified counsel letter eight motion raised issues: required Reynard give the DNA Act (1) applying whether the DNA Act to that a sample. blood The letter stated Reynard impermissibly would be Rey probation officer would soon contact Cyr, retroactive under INS v. St. arrange taking nard to for the of a blood sample. The letter further noted that fail (2001); L.Ed.2d 347 cooperate ure to collection of the (2) (1) sample: applying would A whether the DNA Act to blood be Class (2) misdemeanor; Reynard impermissibly would constitute a would be they're right, but there is no need to wait victed offenders' DNA would be included in (statement Kohl); longer.”) Unfortunately, Department of Sen. id. at CODIS. law, ("[D]uring though implemented SI Justice never consideration of the Anti- pro- currently Terrorism Act of all 50 states collect DNA from con- [Senator Dewine] Kohl). offenders.”) (statement posed provision Sen. under which federal con- victed principles requiring of due a search without individualized under

retroactive Second, suspicion. Reynard process; contends imper- of the DNA Act is application (3) Act to applying the DNA whether Third, missibly Reynard retroactive. ar- prohibi- Reynard would violate gues application this retroactive laws; Ex Post Facto against tion the DNA Act violates the Constitution’s (4) the DNA applying whether Fourth, Reynard Ex Post Facto Clause. an unlawful bill of Reynard would be maintains that the DNA Act is unconsti- attainder; power tutional because lacked (5) mandatory collection of a whether under the Commerce Clause to enact it. out- falls Finally, Reynard suggests that the Act vi- “special exception” needs side the by rights olates his Fifth Amendment Amendment; Fourth forcing by pro- him to incriminate himself (6) sepa- the DNA Act violates whether ducing evidence. powers principles; ration of the DNA violates whether II. DISCUSSION Clause; Commerce extraction of compelled whether A. The DNA Act Does Not Violate the samples under the DNA Act blood Fourth Amendment privi- Fifth violates the Amendment Reynard contends that self-incrimination. lege against Act violates the Fourth Amendment be 6, 2002, the district court August On a search without re cause authorizes the motion. Twen- hearing conducted a Analysis quiring suspicion. individualized later, court denied days the district ty of this issue is foreclosed United States thorough published in a Reynard’s motion (9th Cir.2004) 762, Hugs, v. F.3d 769 384 Reynard, opinion. See United States Kincade, (citing States v. United (2002). September 1142 On F.Supp.2d 220 (9th Cir.2004) (en banc), denied, cert. 813 3, 2002, court conducted an the district 924, 1638, 125 S.Ct. 161 L.Ed.2d U.S. evidentiary hearing allega- and found the (2005)), which held that the in the OSC to be true. tions contained does not violate the Fourth Amendment. Reynard’s supervised The court revoked release, it with the but then reinstated Have B. The DNA Act Does Not an Reynard give requirement additional Impermissibly Effect Retroactive on judgment final sample. a blood The Reynard day. filed the commitment order was same Reynard contends that the DNA Reynard’s Appeal B. The dis impermissibly Act is retroactive.3 that the “ret Reynard disagreed, finding trict court September filed On Act is rospective application of the DNA Appeal. appeal, Notice of In his timely irrational, First, is consis arbitrary not but five issues. he as- raises Congress’s passing intent in Act violates the tent with serts i.e., from it authorizes to include Fourth Amendment because law— Dictionary changeably);, Black’s Law interchangeably see also use the terms "ret- 3. Courts ed.2004) (8th "retrospective” (defining "retrospective.” See SEC v. roactive” and convenience, retroactive”). Cir-1996) Fehn, (9th we use “see For F.3d “retroactive,” that would re- unless (recognizing Supreme uses the the term that the Court language quotation. changing of a "retrospective” quire inter- terms “retroactive” databank, in the tion of the act violates the Due federal offenders CODIS Process possible speed.” Reynard, all consequently with Clause and has a “retroactive 1157. For the reasons Landgraf, at at effect.” U.S. below, holding. affirm this set forth “If operate S.Ct. 1483. the statute would retroactively, presumption our traditional of Review Standard govern teaches does absent congressional favoring We review de novo whether stat clear intent such a may applied retroactively. ute be result.” Id. Boos,

Scott v. F.3d 942-43 Cir.2000). 3.Application Cyr/Land- of the St. graf Test Governing Legal Principles-the St.

Cyr/Landgraf Test Step a. One apply two-step Courts test to government points-to The four sources legislation impermis determine whether is support Congress its contention that sibly retroactive. This test set forth unambiguously intended for the DNA Act 289, 316,121 Cyr, INS v. St. apply quali- to offenders who committed (2001), 150 L.Ed.2d 347 and Land fying prior passage. offenses to the Act’s Products, graf v. Film USI First, the Act states that the Probation 128 L.Ed.2d 229 Office “shall collect a DNA from (1994). step requires The first that we release, parole, pro- each[individual “ascertain whether has directed is, been, who or has bation] convicted of clarity ” requisite with the that the be law qualifying Federal offense.... Pub.L. applied .retrospectively.” Cyr, St. (codified No. 106-546 at U.S.C. 316, 121 statutory S.Ct. 2271. The lan 14135a(a)(2)). con- guage must “so clear that it be sus [can] portion that because a of the lan- tends. only interpretation.” tain one Id. at tense, guage past is cast it covers Congress’s 121 S.Ct. 2271. If intent individuals, like who are now on sufficiently clear legisla text and release, who “ha[ve] but been” history, may ap tive then the statute be Second, a qualifying convicted of offense.4 retroactively, plied and the court need not provides the Act also that a DNA step. address the second id. will be collected “from each individual (“[I]t beyond dispute 121 S.Ct. that custody the Bureau the of Prisons who ... Congress power has the to enact laws been, is, or has qualifying convicted of a retrospective Congress with effect” where 14135a(a)(l) (em- Federal offense.” Id. so). clearly intends to do added). Third, government phasis Step employed two must be where contends that a review of the DNA Act’s Congress’s legislative history retroactive is not clear. emphasizes intent that the Act applica- must then determine whether was to apply retroactively.5 We intended Congress 4. The also asserts that the fact noted that the Act would serve to significant gap by including fill a applies "parolees” in CODIS that this subsection nec- qualifying all offenders who have committed a essarily demonstrates retroactive intent be- qualifying past. offense at time in parole cause was fedéral abolished over fif- H8572-01, Cong. (daily Rec. ed. H8576 years Sentencing teen before in the Reform 2, 2000) ("One glaring Oct. omission in the Act of 1984. law that authorized CODIS is that it did not taking authorize the of DNA from noted; “congressional silence on government, the retro- Finally, as noted (“CBO”) Budget Office’s Congressional activity non-retroactivity of the DNA Act of the DNA observed cost estimate significant Reynard, Act is in itself.” 6,000 persons roughly “there are such that 1150; F.Supp.2d at see also Castro-Cortez 2,000 another now and that there would be I.N.S., Cir. year in fiscal incarcerated persons 2001) (“Congressional silence is instruc- year govern- thereafter.” The and each tive”), abrogated grounds by on other Fer- — that the ment contends that the fact CBO Gonzales, U.S.-, nandez-Vargas v. current inmates its calculation included (2006). 165 L.Ed.2d 323 Congress is further evidence that intended Finally, although report certainly the CBO application of the DNA Act. retroactive support construing provides retroactive, hardly to he can be Although statutory provisions history suggest Congress’s discussed above deemed conclusive evidence of legislative intended the Congress may particularly, light have of the absence intent — retroactively, apply DNA Act to the dis corroborating leg- of clear in the evidence correctly court determined that Con trict history. islative high failed to meet standard of gress Therefore, although the Act’s text DNA in unambiguous expression of clear and legislative' history that it suggest at 1149 tent. See retroactively, to apply intended the exis (holding legislative that “the text and his plausible preclude tence of alternatives us the DNA Act are not so clear that tory of finding unambiguous from the clear and interpreta [they] only could sustain one necessary satisfy intent this first St. (internal quotations and citations tion” Cyr/Landgraf step. See United States v. omitted)). lan example, plain For Vill, Inc., 30, 34-37, Nordic clarify the DNA Act does not guage of (1992) (the S.Ct. 1011, 117 L.Ed.2d applies. extent to which the Act While any “plausible” existence of alternative in (42 14135a(a)(1) §§ U.S.C. statutory terpretations language neces (2)) expressly apply person to a who “has sarily precludes language quali offense, qualifying been” convicted of a expression). an fying “unambiguous” language does not demonstrate Accordingly, proceed must to the sec “affirmatively po considered the . step ond application tential unfairness of retroactive acceptable it is an and determined Step b. Two countervailing bene price pay for the 272-73, 114 Landgraf, fits.” 511 U.S. at appli- whether We must next determine have a retroac- cation of the statute would meaning Landgraf tive effect within the addition, Congress may although consequently Reynard’s violate due fill “gaps” the DNA Act to in passed have rights. Jimenez-Angeles v. CODIS, process necessarily it does not follow that (9th Cir.2002) Ashcroft, 291 F.3d japply the Act was intended to retroactive- 280,114 fact, at ly. reasonably (citing Landgraf, as the district court ....”) express persons ... but Federal officials claim more convicted of Federal offenses (statement (statement necessary.”) by Rep. Canady); Cong. Sen. of Rec. 106-900(1), ("[The ("[F]or Kohl); inexplicable Rep. at 8 DNA SI SI 1647 some H.R. reason, legal samples ... au- Act] we do not collect from Feder- addresses absence thority samples thought already for DNA to be collected from al ... offenders. We crimes....”). loophole through legislation persons of Federal closed this convicted 1483). (1) Further, any “disability” by op- created is one that A retroactive effect when he impairs rights Reynard possessed DNA Act is minimal and eration of the acted, liability increases upset any reliance interest that does not conduct, imposes or new duties past Reynard may have had. As the district already com respect to transactions with noted, in samples court DNA CODIS 280, 114 Landgraf, 511 at pleted. See (known genetic markers composed A that has such a statute 5.Ct. sites”) “junk purposely which “are selected applied cannot be to the retroactive effect any they because are not associated with court. See United litigant before the genetic Reynard, trait.” known 1144, 1156 Hovsepian, 359 F.3d States (citing Rep. at 1152 H.R. 106- (9th Cir.2004); Jimenez-Angeles, 291 F.3d 26). 900(1),at at 601. Moreover, legislative history of the Landgraf category, Addressing the third that federal defendants suggests recognized that the DNA the district court Reynard pleaded in when October “duty” Reynard to sub imposes acutely any aware of non- guilty, were not physical mit to intrusion of blood ex obligation provide DNA be- “disability” by traction and also creates already by cause a federal law existed in DNA information incorporating his Congress attempted to create such Reynard, database. nationwide obligation.6 Accordingly, leg- an the Act’s However, F.Supp.2d at 1153. the district history proposition undermines the islative “duty” court reasoned that, purposes retroactivity analy pleaded its federal offenders new for sis because was warned at his guilty expectation they with an would supervised hearing release he was DNA to not have to contribute CODIS subject duty to a to a broad to “[s]ubmit because, time, expressly at that federal law residence, person, property, search of expand by authorized the FBI to CODIS abode or vehicle at a reasonable time and including samples DNA from all such fed- in a manner the Probation reasonable Accordingly, Reynard did eral offenders. Reynard’s duty to Although Officer.” Id. expectation not have a settled he may to a have not been submit search have to to DNA extrac- would not submit clearly defined at the time to include blood tion. extraction, that the terms of he was aware Reynard’s primary challenge is to the supervised could be modified release (the constitutionality of such a search con- 3583(e)(2) (autho

future. See 18 U.S.C. stitutionality upheld of which was Kin- reduce, rizing “modify, a court to or en cade, and reaffirmed large supervised the conditions of release 769), Hugs, argument 384 F.3d at but this prior expiration time to the government’s does not defeat the conten- termination of the terms of re lease”). falls within tion that the extraction In October DOJ believed that AEDPA federal offenders for inclusion into CODIS. Thus, 811(a)(2) 106-900(1). H.R.Rep. No. in Octo- section continued to authorize the Reynard pleaded guilty include DNA federal ber when FBI to all appeared grant robbery, law offenders in the CODIS index. See federal later, authority F.Supp.2d 220 at Two FBI to collect a DNA from 1155. months 1998, though requested Congress Reynard, even DOJ believed that Con- December the FBI statutory authority gress explicit to enact to had not conferred sufficient to more allow the FBI to take DNA do so.

1017 (1995) v. (quoting Collins 131 L.Ed.2d 588 duty to submit scope 37, 41, 110 S.Ct. Youngblood, 497 U.S. to a search.7 (1990)). 2715, Specifically, 111 L.Ed.2d 30 Thus, the second St. analyzing the Clause forbids: court cor- step, the district Cyr/Landgraf that makes an action Every 1st. law DNA Act did not that the rectly concluded law, and passing done before the effect on retroactive impermissibly an have done, criminal; was innocent when at Reynard. punishes Every such action. 2d. 1157. crime, a or makes it aggravates law that Act Does Not Violate The DNA C. was, 3d. greater than it when committed. Ex Post Facto Clause Every changes punishment, that law than greater punishment, and inflicts application Reynard contends crime, annexed to the when com- the law Ex him violates the DNA Act to Every 4th. law that alters the mitted. reasons set Facto For the Post Clause. less, evidence, rules of and receives legal below, claim. reject forth different, testimony, than the law re- or of Review 1. Standard quired at the time of the commission offense, the of- in order to convict that the Ex ruling court’s A district fender. is re was not violated Facto Clause Post 456, 121 Ayers, Tennessee, 451, Hunter v. de novo. See Rogers viewed v. 532 U.S. Cir.2003). (2001) 1007, 1011 1693, (quoting F.3d 149 L.Ed.2d 697 S.Ct. 390, 1 Bull, Dall. L.Ed. lder v. Ca Principles Governing Legal 2. omitted)). (1798) Reynard (emphasis unlawfully that the DNA Ex Post Facto contends The Constitution’s on an action a crime based application establishes passage Clause forbids Act was enact before the DNA “retroactively the defini committed alter of laws ed, changes that the DNA punishment or increase the tion of crimes punishment greater or inflicts punishment Dep’t Corr. for criminal acts.” Calif. sample than refusing to submit a blood Morales, 115 S.Ct. important clearly is an arguments state that reliance Reynard makes two additional retroactivity analysis. See St. the DNA Act is support his contention factor in the First, 2271; contends impermissibly Cyr, retroactive. he Land 533 U.S. at Hughes v. United States ex rel. Co. graf, S.Ct. 1483. Aircraft Schumer, 117 S.Ct. Second, Reynard argues that the district (1997), finding compels a differ- L.Ed.2d inqui- undertake the "commonsense” failed to Aircraft, Hughes Court not- ent result. Cyr/Landgraf ry required the second St. cause of action the creation of new ed that Cyr, 121 S.Ct. step. 533 U.S. at See St. yield impermissibly against party an could ("The inquiry whether a statute into id. at effect. See retroactive retroactively a common- operates demands that his case is analo- claims sense, judgment whether about functional failure to gous Hughes because Aircraft legal conse- provision new new attaches mis- comply DNA Act constitutes a new with complete enact- quences before its to events basis on which offense and new demeanor (internal quotations and citations ment.” Specifical- supervisory sentence. to violate a omitted)). thoroughly discussed Because court’s focus ly, Reynard questions the district ex- Reynard's potential reliance and settled that the because he feels on reliance interests F.Supp.2d at Reynard, 220 pectations, see them in Supreme Court did not consider However, did not fail the district court Hughes Hughes Aircraft Aircraft. inquiry. a "commonsense” Cyr Landgraf, which conduct St. did not overrule Reynard the law when allowed was con- tions. See (“Thus, victed. the DNA Act does not crimi- (or omission) an act nalize that occurred The DNA Act Does Not Criminal- prior to enactment of the In- DNA Act. ize That Conduct Innocent Was stead, the DNA Act Reynard’s criminalizes When Committed comply June 2002 failure to with the The DNA Act establishes a misdemean- Act.”). previously enacted DNA anyone or cooper- offense “who fails to ate in the sample. collection of’ a DNA Change 4. The DNA Act Does Not (codified Pub.L. No. 106-546 at 42 U.S.C. Inñict Greater Punishment than 14135a(a)(2)). Reynard claims that the the Law Allowed at the Time of a crime solely establishes based Reynard’s Conviction (or omission) on an act committed before Reynard argues application next that In response, Act’s enactment.8 the DNA Act to him Ex violates the Post government asserts that the DNA Act Facto pun- Clause because it increases his (or omission) not criminalize does act ishment for his Specifi- 1998 conviction. Reynard prior committed to passage cally, he asserts “the DNA Act Rather, Act. Reynard’s refusal to changes punishment or greater inflicts give blood occurred eighteen over months punishment than the law allowed when Thus, passed after the DNA Act. Reynard Rey- sustained his conviction.” government argues, the DNA Act argues nard the DNA Act imposes only criminalizes Reynard’s new conduct— greater him punishment on because the June 2002 refusal to comply with the exposes him super- to revocation of Act, DNA which occurred than eigh- more vised release if he declines to allow the teen months after the Act’s enactment— probation office to draw blood and that he Reynard’s not conduct predating the Act. potential did not face this for revocation DNA allows the Probation Of- prior passage to of the DNA Act. In re- Reynard’s fice to revoke re- sponse, asserts that Reynard’s lease based on June DNA Act does not Reynard’s increase sample. refusal to submit a blood The Act “punishment” for his 1998 conviction. (or omission) not does criminalize an act Doe, prior occurred to enactment of According to Smith v. Thus, DNA Act. properly (2003), district court 155 L.Ed.2d 164 concluded that the DNA Act employ does not an analysis “intent-effect” to deter- Reynard’s criminalize pre-DNA Act ac- mine whether the DNA Act Rey- increases Reynard concedes the existence of cases assertion that he "has not en- stating gaged permissible prohibit that it in conduct after the enactment to an cooperate” DNA Act but rather omitted to engaging specific individual from conduct unpersuasive. Reynard Had not been in- prior based on a conviction sustained before formed consequences of the DNA Act and the the criminal statute's enactment. See United failing comply, it would seem unreason- Mitchell, States v. 322-23 Reynard failing give able to find liable for Cir.2000). Reynard distinguishes such cases However, sample. fully by asserting that the DNA Act does crimi- consequences aware of the when he refused nalize conduct but instead criminalizes an to have his blood drawn. His refusal to sub- prior omission passage that was innocent clearly mit to the blood extraction was an namely, of the DNA the failure to con- Act— action, omission, affirmative not an as antici- tribute blood to the CODIS databank. pated by the DNAAct.

1019 361, 117 2072. must conviction.9 at S.Ct. We for his 1998 U.S. punishment nard’s First, we 92,123 the the statute’s text and structure id. at S.Ct. 1140. consider See See legislature legislative objective. whether the the “ascertain determine must Nestor, 603, Flemming v. pro- 617, ‘civil’ statute establish 80 meant the 363 U.S. Hen- v. (1960). Id. Kansas (quoting 4 L.Ed.2d A con- ceedings.” S.Ct. dricks, 361, 117 S.Ct. legislature 521 U.S. intended to clusion that (1997)). intention If the satisfy L.Ed.2d Facto would an Ex Post punish punish- legislature impose was to of the challenge inquiry without further into its ment, we defer to inquiry ends and effects, so deference must be considerable Hendricks, See 521 U.S. intent. intent. See legislative legislature’s to the accorded However, if Smith, at 117 S.Ct. 2072. at 538 U.S. 123 S.Ct. regula- enact a intent was to Legislature’s non-punitive, that is civil and a. No Punitive Intent

tory scheme the stat- further examine whether must legislative history A review of pur- punitive is “so either utory scheme DNA Act reveals that it was not enacted State’s] as to negate [the or effect pose Rather, goal reasons. its was punitive (internal Id. to deem civil.” intention by matching law enforcement “assist[ ] omitted). a federal Because quotations ... possible suspects DNA evidence with “ordinarily legisla- to the court will defer Cong. violent crimes.” 146 unsolved intent,” Hendricks, ture’s stated (statement H8572-01, Rep. H8577 Rec. 2072, “only the clearest at Gilman). lives The would “save legislative suffice to override proof will allowing apprehension and detention de- and transform what has intent been eliminating dangerous individuals while a criminal remedy into nominated civil innocent individuals prospects States, v. Hudson United penalty,” they wrongly crimes that would be held for 93, 100, L.Ed.2d Cong. not commit.” 146 Rec. H8572- did omitted). (internal quotations (statement Scott). Ac- Rep. H8576 legislative history suggests cordingly, statutory scheme Whether in con- the district court was correct question criminal “is first of all a civil or Hendricks, not intend- cluding that the DNA Act was statutory construction.” does government argues that Paskow parties dispute applicable test for The The inquiry. Reynard resolving this asserts the DNA Act control this case because not Paskow, States v. penalties United defendants not increase does that, Cir.1993), controlling authority, and upon supervised re- face revocation of will Paskow, supervised cannot his release under Rather, argues, government lease. on the of a DNA Act viola- be revoked basis way by merely provides another passed after the DNA Act was tion because may supervised be revoked. release underlying Paskow in- conviction. we should be contends that supervised re- an amendment to the volved analysis, set guided by an "intent-effect” mandatory jail provided statute which lease Gregoire, 124 F.3d 1079 in Russell forth by pos- persons who release term for violated However, (9th Cir.1997). March sessing" drugs. id. Prior to the See at 876. filed, the appeal after six months amendment, mandatory violation carried no clarified Supreme Court decided Smith and (finding sentence. See id. at 883 minimum applied of altered the test to be to claims post facto violated when that the ex clause is Smith, punishment. increased to the release stat- an amendment 123 S.Ct. 1140. disadvantages commit- a defendant who ute underlying the amend- ted the offense before effective). ment became punitive. scheme, ed to ry be in its necessary operation, has F.Supp.2d at 1151. regarded history been the Nation’s Next,

and as a punishment.”). traditions b. No Punitive penalty provisions of the DNA Act do Effect scienter, require specific showing not Supreme Court has offered seven required by the third Mendoza-Mar- guide analysis: factors to our “effect” (co- tinez factor. See Pub.L. No. 106-546 A. Whether the sanction involves an 14135a) 42 (assigning dified at U.S.C. restraint; disability affirmative anyone misdemeanor to coop- who “fails to B. historically Whether it has been re- erate the collection” of a DNA sample). garded punishment; aas requires The fourth factor analysis play only C. Whether it comes into on promotes goals whether the DNA Act scienter; finding punishment. Legislative history sug- operation D. Whether its promote will gests that Congress acknowledged that the the traditional punish- aims of might help DNA Act curb recidivism rates. deterrence; ment—retribution and S11645-02, Cong. See 146 Rec. S11646 E. Whether the behavior to which it (“Statistics many show that of these vio- crime; applies already is lent repeat felons will their crimes once F. Whether an purpose alternative to they society. are back in Since the Feder- may rationally which it be connect- al Government does not collect DNA from it; is assignable ed and felons, however, these ability of law G. it appears Whether excessive in re- rapidly enforcement to identify likely sus- lation to the purpose alternative as- slowed.”) (statement pects is of Sen. Dew- signed all inqui- are relevant to the ine); Kincade, see also 379 F.3d at 839.

ry, may point often in differing However, every not law with a deterrent directions. punitive. effect is See United States v. Jackson, Cir.1999) 189 Mendoza-Martinez, F.3d Kennedy v. 144, 168-69, (noting that may “deterrence also serve S.Ct. 9 L.Ed.2d 644 (internal (1963). non-punitive goals” The district court citations found that the omitted)). Further, DNA does not punitive” is not “so in effect as to component have a retribution outweigh because it Congress’s non-punitive intent. does not “label[] offender as more See Af- before,” Russell, culpable than ter F.3d at analyzing the facts of in light this case geared and “is not factors, making toward seven Mendoza-Martinez [Reynard] understand regret we reach the se- the same conclusion. crimes,” Jackson, verity of his 189 F.3d at respect With to the first Mendoza-Mar- factor, tinez the DNA Act does confer an disability. However, affirmative factor, Addressing as dis- the fifth while the earlier, disability cussed is minimal. DNA Act does criminalize an individual’s Smith, 1140; See 538 U.S. at draw, failure to submit to a blood such Ass’n, Skinner v. Railway Labor Exec. non-compliance is punished separate as a 602, offense, 109 S.Ct. which diminishes Ex potential (1989). Second, L.Ed.2d 639 Russell, neither blood problems. Post Facto nor DNA collection historically have been F.3d at (emphasizing 1088-89 fact that Ex Smith, punishment. viewed as 538 Post Facto Clause is concerned with in- (“[T]he U.S. at regulato- S.Ct. 1140 punishment creased for prior, sepa- not 11(C)(3). testimony, offenses); ting incriminating Part Be- rate, supra but Id. at that the DNA evidence.” concedes cause J., (Thomas, However, function, concurring). he neces- Jus a non-punitive serves concurring tice Thomas’s are there a rational comments sarily concedes us, Act, binding as re- and as for the purpose alternative out, quick point blood factor. The district quired the sixth profiles physical, rather than factor court did not address seventh Considering California, factor testimonial. See Schmerber analysis. its Smith, that the Court noted Supreme (1966) (holding analysis L.Ed.2d 908 that question here is not the whether

“[t]he sample, of blood taken possi- the choice without defendant’s legislature has made best consent, did Fifth it to not violate defendant’s problem to the seeks ble address rights); Amendment United States v. Ve remedy, regulatory the means but whether larde-Gomez, 1023, 1030 in Cir. light are of the non- chosen reasonable 2001) (en banc) Smith, (recognizing that blood objective.” U.S. at punitive “physical characteristics that the DNA Act is a evidence” 123 S.Ct. 1140. Because engender pro “not Fifth Congress can do Amendment means which reasonable tection”). goal, non-punitive a regulate achieve Act

the meets this standard. Therefore, of Reynard’s the extraction not DNA does violate his Fifth Amend- factors, many After the we weighing rights. ment in that court correct find the district not concluding the DNA Act does CLIFTON, Judge, Circuit with whom out- “punitive” a effect sufficient to have TASHIMA, joins: Judge, Circuit Congress’s non-punitive intent. See weigh DNA E. The Act Does Not Exceed the light at 1162. Reynard, 220 factors, the Power of the Commerce Clause of Mendoza-Martinez as to Federal Government punitive” DNA Act is not “so effect non-punitive intent. outweigh Congress’s Reynard DNA asserts Act Accordingly, the DNA does not violate because feder Act is unconstitutional the Ex Post Facto Clause. authority under government al lacks require to a federal the Commerce Clause Compelled of Blood D. The Extraction provide sample to offender the DNA Does Not Vio- Under Rey supervised of his release. condition Reynard’s late Fifth Amendment argument nard’s lacks merit. The federal Right Against Self-Incrimination authority to government’s regulate super of a federal offender’s Reynard contends that the extrac conditions Fifth release arises when individual tion of DNA information violates his vised crime. federal subject not to be to the commits a federal right Amendment required to demon incriminating not compelled production contention, independent authority it has support evidence. To this strate each condition of su concurring opinion impose to a to individual cites Hubbell, 27, an offender. None pervised upon release United States instance, (2000), theless, the individual 147 L.Ed.2d issue, supervised “the Fifth condition of release Justice Thomas states that alone, protects standing is a valid exercise privilege against Amendment authority just government’s pursuant incrimina- compelled production federal Clause, Further, power. Reynard’s its to denominate to Commerce Clause conduct Congress’s offense, power an exercise of federal has the incar- such Commerce to power principles impose upon does not offend cerate him Clause him the terms release, requir- of federalism. supervised including his ing him to submit DNA under 1. The Federal Government’s Author- the DNA Act. There is no requirement ity to Dictate the Conditions of each individual term of his Supervised Release independently release be authorized under Arose When He Was Convicted of the Commerce Clause. Committing a Federal Crime 2. The Federal Government Has Contrary Reynard’s arguments, Authority to Enact analyze required are not whether Con under the Commerce Clause impose has the gress upon him each individual super condition his Nonetheless, instance, in this re- government’s release. federal vised The quirement that submit a DNA of to dictate all the conditions of Act, sample standing under supervised his arose when release he com alone, is a valid exercise of the federal mitted a crime that had the au government’s power. Commerce Clause thority identify a federal as offense. principles. We start with first The Consti- Here, Reynard pleaded guilty to violating government tution creates a federal of (f), 2113(a), § U.S.C. a robbing 18 bank powers; among enumerated those is the by Deposit insured the Federal Insurance power regulate Commerce with for- “[t]o Corporation. indisputable It is that Con eign Nations, among and the several authority to gress classify has the this States, and with the Indian U.S. Tribes.” a crime as federal offense. See United Const., 8, I, § cl. Art. 3. The Supreme Harris, 1107, States 108 F.3d 1109 Court categories has identified three broad Cir.1997) (explaining that the federal bank activity Congress may of un- regulate robbery permissible statute is a exercise of (1) der the Clause: Commerce the chan- Congress’s Commerce Clause power). commerce, nels of interstate the instru- requires The DNA Act DNA extraction as mentalities of interstate commerce and condition following a of release commerce, persons in things or interstate qualifying conviction for offenses 42 under and activities that intrastate substan- U.S.C. 14135a. To the extent that these tially affect interstate commerce. regulable qualifying offenses are Con Lopez, 549, United States v. 558- gress under its power Commerce Clause 59, (1995). 1624, 115 131 S.Ct. L.Ed.2d 626 well, proper as the DNA Act is a exercise categories The first and third of com- its authority. of Commerce Clause merce are inapplicable case. Plotts, United States v. The extraction of DNA and the subsequent (10th Cir.2003) Act, (holding sys- data in inclusion of DNA the CODIS whether construed as civil sanction for tem do not affect the “channels of inter- committing qualifying federal offense or commerce,” navigable state as such water- tool, “necessary law enforcement is railroads, See, ways, highways. e.g., and proper to the exercise of the Com Atkinson, Co., Oklahoma v. F. Guy Clause.”). merce U.S. S.Ct. L.Ed. (1941). they

Since the federal has intrastate activi- Neither authority, ties of nature under Commerce an economic that “substan- See, Congress’s Exercise of Authori- commerce. its tially affect” interstate Raich, 1, 25, 125 ty e.g., Gonzales v. U.S. under the Commerce Clause (2005). Hence; 162 L.Ed.2d Principles Does Fed- S.Ct. Not Offend inclu of DNA the extraction eralism Lo falls under the second sion CODIS Furthermore, Congress’s of its exercise “thing in category, as a commerce.” pez power Clause this situation Commerce conveys A DNA information principles offend of federalism. does identi a convicted federal offender’s about Lopez against The warned extend- Court long ago The Court concluded ty. scope of the Commerce Clause ing involving nothing commercial activities non “effectually power obliterate the distinc- ... infor tangible than the flow of “more is tion between what national and what can mation constitute commerce.” United completely local create a centralized v. South-Eastern States Underwriters government.” Lopez, 514 Ass’n, not im 1624., does (1944), superseded by stat L.Ed. upon or trade areas traditional state In recent grounds. on other more ute only The Act authority. regulates local has also years, Court determined Moreover, federal offenders. it addresses contained identifying personal, information “ problem capable that the states are not ‘thin[g] is a in interstate DMV records addressing passing on their own. commerce,’ that the sale release legislation, Congress acknowledged that information interstate commerce fifty legislation all had that states enacted subject congressional a of proper therefore of state required that individuals convicted Condon, v. 528 U.S. regulation.” Reno provide to DNA for anal- samples offenses S.Ct. L.Ed.2d system. into the ysis entry and CODIS (2000) 558-59, (quoting Lopez, 514 U.S. at 106-900(1), Rep. Congress H.R. at *8. 1624) added). Thus (emphasis 115 S.Ct. noted, however, was, there 'at that that that has Congress the Court made clear time, legal authority that no allowed authority, the the under Commerce to from individuals samples be collected Clause, release regulate to the interstate of crimes. id. Since convicted federal information, this personal even when of power do not have the to authorize states a infor does not involve sale of the release those the collection of DNA in nature. mation and thus non-economic crimes, problem of this convicted federal Court’s decision Con Id. Based the of capable that were not don, was one the states can appears Congress clear addressing own. and of DNA on their regulate the collection release offenders, samples from federal because recog consistently have identifying con Courts personal,

this information help to that federal statutes enacted thing interstate commerce.10 nized stitutes type regulate can some- government of the federal 10. A difference does exist between the it, else, thing nobody placed into being Con- has regulated and transaction that commerce, we need the here. the stream of type don and of transaction at issue Condon, already explained, the fed- placed it here. As the individual actor that decide authority this in- government's to act in the inter-state eral the information into stream of state; here, a fed- the arose committed stance when commerce was whereas crime, each individual condition entity regulation the eral and thus that has created —the indepen- responsible need not be entity the of his release federal —is dently justifiable one the federal par- under of release of the information. The for the powers. question government's not raised the of whether enumerated ties have problems defy upon a local actment plain showing states address Con- appropriate gress solution constitute an has exercise exceeded its constitutional Congress’s power, of Commerce Clause bounds. See id. at 115 S.Ct. 1624. power because includes opinion properly recog As court’s govern “to affairs which individual nizes, Supreme Court has “identified states, juris with their limited territorial general categories regulation three dictions, fully capable are not of govern Congress engage authorized See, Black, ing.” e.g., 125 F.3d at 459 (1) power:” its commerce “the chan under (quoting South-Eastern Underwriters commerce;” nels of in- interstate “the Ass’n, 1162) (internal 64 S.Ct. commerce, strumentalities of interstate omitted); quotations United States v. things in persons interstate com (2d 101, 105 Cir.1996); Sage, Unit merce;” “activities that substantial Faasse, v. ed States F.3d 488-489 ly affect interstate commerce.” Gonzales (6th Cir.2001). Consequently, we conclude Raich, 1, 16-17, v. 545 U.S. that the DNA Act exer constitutes valid (2005) (citing 162 L.Ed.2d 1 v. Perez Unit Congress’s pursuant cise power States, 146, 150, ed S.Ct. Commerce Clause. (1971); L.Ed.2d NLRB v. Jones & Laughlin Corp., Steel

CONCLUSION (1937)). S.Ct. 81 L.Ed. 893 To be Reynard’s challenges Because to the valid, a only statute need relate one revocation of his supervised release Condon, category. See Reno unavailing, we AFFIRM. 141, 148-49, 120 666, 145 L.Ed.2d 587 (2000). categories The first and third PREGERSON, Judge, Circuit Congressional authority to regulate instate dissenting: implicated by commerce are not the facts Thus, I believe that lacked au- of this case. there is a need to thority to enact the DNA Act passage under determine whether Act Accordingly, grounded Commerce Clause. I must DNA is on a valid exercise Congressional dissent from Part E opinion authority regulate of the court’s of to in judgment. and from the under court’s terstate commerce the second cate gory. Every law by Congress enacted must be a power

based on in enumerated the Con- The district court found that the second Madison, Marburg stitution. See 1 category applies to this case and that the (1803). Crunch 5 U.S. L.Ed. 60 supports govern- relevant case law the The gives Congress power Constitution ment’s contention that DNA samples taken regulate ... among by “[t]o Commerce the the Act drawing pa- under blood from Const, I, § several art. “things States.” U.S. in rolees interstate commerce.” Congress expressly enacted the DNA Act Reynard, F.Supp.2d at The Su- under power. H.R.Rep. preme recently its commerce See analyzed catego- Court 106-900(1), Condon, No. at ry 16. The modern inter- in In Condon. South Carolina pretation Congress’s of regulatory challenged authori- constitutionality the of the ty expan- (“DPPA”), under the Commerce Privacy Clause is Driver’s Protection 2721-25, sive not 103-322, §§ but without limits. See United 18 U.S.C. Pub.L. No. (1994 Lopez, IV), States v. ed. Supp. 108 Stat. and (1995). S.Ct. regulates ability L.Ed.2d 626 and restricts the of may sell, congressional use, Courts en- private invalidate a and actors to states or (or protect instrumentality thing) in an identifying data and personal disclose (“DMV”) commerce, rec in department of motor vehicle interstate district court See Con a driver’s consent. found that Act fell passage ords without DNA don, 666. The U.S. at S.Ct. Congress’s regulatory authority. within identifying personal noted that this Court Reynard, F.Supp.2d (citing at 1174 by of actors variety 1624). information used is Lopez, 514 at in in interstate commerce—from engaged But, readily distinguishable is Condon marketers, surers, manufacturers, to and above, explained from the As instant case. involved public private various and entities the DPPA and regulates the release use of motoring. to in matters related interstate by personal drivers’ information held The Court at 120 S.Ct. 666. See id. enacting DPPA, In the federal DMV. is information “an concluded drivers’ regulate a government sought “thing” to commerce,” and that “its sale or article of (information) already was into of busi the interstate stream release placed of and into stream commerce support congressional ness sufficient to is stream of commerce local state regulation.” Id. Condon, governments. government contends that the DNA 148, 120S.Ct. 666. DPPA, Act, regulates the release like personal identifying data. The Act, and use of contrast, by passing regulate DNA Act seeks to the collection is to Congress attempting regulate some- transporta- as well as samples DNA nobody thing put it—and else—has FBI, tion such to the where the into the stream of commerce. information included is CODIS body housed in his not a DNA—while —is person- to law enforcement made available until the “thing” interstate commerce fifty nel in all states. See Act, government, compels under the DNA (“[T]he at 1173 essen- by drawing DNA’s blood extraction tially regulates the collection and distribu- parolee from a DNA in the places the i.e., tion the DNA of certain fed- analysis. data — stream commerce Con- eral offenders—for distribution use gress may bootstrap its country.”). around the under the regulate purely activity local If the Commerce Clause. The district court found that Condon anything puts that it regulate allowed suggests empowered commerce, powers its into the stream of commerce, regulate interstate “things” would be under Commerce Clause “things” even or where such disclosed sure, power “To ‘the to without limit. be released into the stream of commerce commerce, indeed, though regulate broad any without sale or other economic trans- ” Alafabco, limits.’ Bank v. has Citizens Condon, (citing at 1171-72 action. id. Inc., 52, 58, 2037, 123 156 S.Ct. 148, 666); at S.Ct. see also U.S. Maryland v. (quoting L.Ed.2d Cummings, v. 281 F.3d United States Wirtz, 2017, Cir.2002) S.Ct. (“Congress’s (1968)). By arguing that L.Ed.2d 1020 Commerce is broad Clause Congress regulate authorizes to Condon beyond simple regu- to enough stretch only government after the Reynard’s DNA traveling in goods lation of commercial commerce, placed has it interstate foreign to include interstate and commerce ”). government proverbial cart be- puts of regulation non-economie activities.... proverbial horse. regulate the DNA Act to fore the Because seeks America, passage of the DNA Act cannot United Because States justified “catego- Plaintiff-Appellee, be under of the three regulation in which Congress ries v. engage under its commerce authorized Beltran, Defendant-Appellant. Javier Raich, power,” agree at I passage with of the DNA Nos. 05-50181. Congress’s power Act exceeds under United of Appeals, Commerce Clause.1 States Court

Ninth Circuit. Argued and Aug. Submitted 2006. Filed Jan. America,

UNITED STATES

Plaintiff-Appellee, RAMIREZ,

Ramon aka Monserrat

Meza-Ramirez, aka Ra Natividad

mirez, Clavo-Barraza, aka Manuel Ramirez,

aka Natividad De Vidana

fendant-Appellant; addressing challenges necessary regulation similar to the DNA "[w]here make a Act, effective, the Tenth Circuit found it need not may interstate commerce properly whether Act determine the DNA was regulate even interstate those activities that enacted under the Commerce Clause because substantially do not themselves affect inter- legitimate it that the is a Raich, reasoned "Act exer- state commerce.” at congressional power cise of under However, the Neces- earlier, S.Ct. 2195. as discussed sary Proper and Clause.” United States v. the DNA Act does not bear a rational relation- Plotts, (10th Cir.2003). ship to the Commerce Clause and is not court Plotts concluded that the necessary effectively regulate interstate either constitutes civil sanction for viola- commerce there because is no interstate com- law, tion of a criminal see id. at a law merce in federal releasees’ DNA. tool, enforcement see id. Congress’ reliance the Commerce Clause Necessary Proper provides Clause enacting attempted is an enforcement, implementation means of "things” regulating rationalization for see id. at 878-79. I believe that the Tenth only govern- itself—and misapprehends Necessary Circuit put ment—has into the stream of commerce. Proper Clause. Maryland, See M’Culloch v. 4 Wheat. Necessary Proper (rejecting L.Ed. 579 Clause allows laws, congressional subject Necessary Prop- to enact con- use of other Clause, constraints, pretext executing "that bear er "under stitutional a rational its powers, pass accomplish- powers.” [to] connection of its enumerated for the laws (quoting Id. Edgar, objects govern- at 878 United States v. ment not intrusted to the sure, (11th Cir.2002)). ment”). F.3d To be

Case Details

Case Name: United States v. John G. Reynard

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jan 12, 2007

Citation: 473 F.3d 1008

Docket Number: 02-50476

Court Abbreviation: 9th Cir.