U.S. v. Reynard

• Decision Date: 26 August 2002
• Docket Number: No. 98-CR-2402-IEG.,98-CR-2402-IEG.
• Citation: 220 F.Supp.2d 1142
• Court: U.S. District Court — Southern District of California
• Parties: UNITED STATES, Petitioner/Supervisor, v. John G. REYNARD, Supervisee.

220 F.Supp.2d 1142

UNITED STATES, Petitioner/Supervisor, v. John G. REYNARD, Supervisee.

No. 98-CR-2402-IEG.

United States District Court, S.D. California.

August 26, 2002.

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Carol C. Lam, United States Attorney, Mark R. Rehe, Assistant United States Attorney, San Diego, CA, for plaintiff.

Steven F. Hubachek, Benjamin L. Coleman, Federal Defenders of San Diego, San Diego, CA, for defendant.

ORDER DENYING SUPERVISEE'S MOTION TO DISMISS PETITION FOR REVOCATION OF SUPERVISED RELEASE

GONZALEZ, District Judge.

Presently before the Court is supervisee John G. Reynard's ("Reynard") motion to dismiss the United States Probation Officer's petition for revocation of Reynard's supervised release. For the reasons stated below, the Court denies Reynard's motion.

BACKGROUND

On October 5, 1998, Reynard pleaded guilty to one count of bank robbery in violation of 18 U.S.C. § 2113(a). [Doc. No. 15.] On December 21, 1998, the Court sentenced Reynard to 30 months in custody, followed by 3 years of supervised release. [Doc. No. 18.] The Court ordered Reynard to comply with several conditions of supervised release, including (1) to "[s]ubmit to a search of person, property, residence, abode or vehicle at a reasonable time and in a reasonable manner by the Probation Officer"; and (2) to refrain from "commit[ting] another federal, state, or local crime." [Doc. No. 19.] On November 3, 2000, after serving time in custody, Reynard's term of supervised released commenced. (June 13, 2002 Petition, p. 1.)

On December 19, 2000, shortly after Reynard commenced his supervised release, Congress enacted the DNA Analysis Backlog Elimination Act of 2000 ("the DNA Act"). The DNA Act requires U.S. Probation Offices to collect a DNA sample from each individual on supervised release "who is, or has been, convicted of a qualifying federal offense." 42 U.S.C. § 14135a(a)(2). Robbery is a qualifying offense. 42 U.S.C. § 14135a(d)(1)(E). The DNA Act expressly indicates that cooperation by qualifying individuals in the collection of the DNA sample is "a condition of that probation, parole, or supervised release." 42 U.S.C. § 14135c. Additionally, simultaneously with passage of the DNA Act, Congress amended the supervised release statute, 18 U.S.C. § 3583, to state: "The court shall order, as an explicit condition of supervised release, that the defendant cooperate in the collection of a DNA sample from the defendant, if the collection of such a sample is authorized pursuant to the DNA [Act]." 18 U.S.C. § 3583.¹

The DNA Act provides that, once a sample is taken, the Probation Office sends the sample to the FBI for entry into the Combined DNA Index System ("CODIS"), a national DNA database linking DNA evidence in a nationwide computer network. 42 U.S.C. § 14135a(b).² In accordance with the provisions of the DNA Act, the U.S. Probation Office for the Southern District of California complies with its duties under the Act as follows. First, qualifying individuals receive notice of the Act's requirements by correspondence and are required to read and sign a disclosure form. Second, an appointment is made for the individual to have a single blood sample drawn by a licensed health care professional. Third, the blood sample is mailed to the FBI in Quantico, Virginia. (Gov't Exhibit 10.)

On May 31, 2002, the U.S. Probation Office sent a letter to Reynard's counsel stating that Reynard was "required to cooperate in the DNA collection process as mandated by" the DNA Act. (Gov't Exhibit 4.) The letter stated that Reynard's probation officer would soon contact Reynard to arrange for the taking of Reynard's blood. The letter further stated that failure to cooperate in the collection of a blood sample: (1) would be a Class A misdemeanor; and (2) would constitute a violation of Reynard's mandatory conditions of supervision. (Id.)

On June 4, 2002, Reynard met with his probation officer, David Dilbeck, who informed Reynard that Reynard must comply with the DNA Act. Additionally, Reynard received a one-page "DNA Collection Letter of Instruction," which again informed Reynard that compliance with the DNA Act was mandatory, and non-compliance would constitute a Class A misdemeanor and a violation of a mandatory condition of his supervised release. Reynard signed the DNA Letter of Instruction, indicating that he "underst[ood] the requirements and agree[d] to abide by them." (Gov't Exhibit 5.) Also on June 4, 2002, Reynard received a notice informing Reynard that he must arrive for a blood draw at the Probation Office on June 10, 2002 at 10:00 a.m..

On June 10, 2002, Reynard timely appeared for his blood draw appointment, yet, after a discussion with his defense counsel, declined to submit to having his blood drawn. On June 13, 2002, probation officer Dilbeck petitioned for an order to show cause why Reynard's supervised release should not be revoked. Officer Dilbeck alleged that Reynard violated a mandatory condition by violating a federal law. Specifically, officer Dilbeck alleged that Reynard "declined to cooperate in the collection of his blood in order to obtain a DNA sample, in violation of 42 U.S.C. § 14135a."

On July 11, 2002, Reynard filed the instant motion to dismiss Probation Officer Dilbeck's petition for revocation. Reynard's motion raises eight issues: (1) whether applying the DNA Act to Reynard would be impermissibly retroactive under the Supreme Court's St. Cyr decision; (2) whether applying the DNA Act to Reynard would be impermissibly retroactive under principles of due process; (3) whether applying the DNA Act to Reynard would violate the prohibition against ex post facto laws; (4) whether applying the DNA Act to Reynard would be an unlawful bill of attainder; (5) whether mandatory collection of a DNA sample from Reynard falls within the "special needs exception" to the Fourth Amendment; (6) whether the DNA Act violates separation of powers principles; (7) whether the DNA Act violates the Commerce Clause; and (8) whether compelled extraction of blood samples under the DNA Act violates the Fifth Amendment privilege against self-incrimination. The Court will address these issues in turn.

I. Whether applying the DNA Act to Reynard would be impermissibly retroactive under the Supreme Court's St. Cyr and Landgraf decisions

A. Legal Principles Governing Retroactivity

In 1998, Reynard pleaded guilty to robbery and accepted the terms of his custody and supervised release. Subsequently, in 2000, Congress enacted the DNA Act, thereby altering the conditions of Reynard's supervised release by requiring Reynard to give a DNA specimen. According to Reynard, the DNA Act is inapplicable to Reynard under the two-step test articulated in Landgraf and St. Cyr because: (1) Congress did not clearly and unambiguously express its intent to apply the DNA Act retroactively; and (2) the DNA Act impairs vested rights, or creates a new obligation, duty, or disability with respect to past transactions or considerations.

To determine whether it is permissible to apply an act of Congress retroactively, courts apply the two-prong approach set forth in INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) and Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). In the first step, the court should "ascertain whether Congress has directed with the requisite clarity that the law be applied retrospectively." St. Cyr, 533 U.S. at 316, 121 S.Ct. 2271. The statutory language must be "so clear that it could sustain only one interpretation." Id. at 317, 121 S.Ct. 2271. A statute fails to achieve this high level of clarity if it is possible to "plausibly" interpret the statute in a manner suggesting that Congress did not intend retroactive application.³

If the legislation satisfies this first step, the statute applies retroactively in accordance with clear congressional intent, and the court need not proceed to step two. However, if the statute and the legislative history do not clearly specify whether Congress intended the statute to apply retrospectively, courts proceed to step two and determine whether application of the provision in question would have a retroactive effect. Landgraf, 511 U.S. at 280, 114 S.Ct. 1483. A retroactive effect is one that "would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed." Id. If a provision would have such an effect, then the court should presume that Congress did not intend the statute to apply retroactively.

1. Step One: Congressional Intent to Apply the DNA Act Retroactively

With regard to the first St. Cyr step, Reynard asserts that it is unclear whether Congress intended the DNA Act to apply retroactively. Reynard notes that the DNA Act applies to any individual "who is, or has been, convicted of a qualifying federal offense...." 42 U.S.C. § 14135a(a)(1) and (2) (emphasis added). Reynard argues that this "or has been" language does not necessarily support the conclusion that Congress intended the DNA Act to apply retroactively. Reynard asserts, for example, that Congress, by using this "or has been" language, could have intended the Act to cover individuals who committed non-qualifying offenses (e.g., drug offenses) after the enactment of the DNA Act, yet who also committed a qualifying offense at some point prior to the enactment of the DNA Act. Thus, according to Reynard, the DNA Act does not contain retroactivity language "so clear that it could sustain only one interpretation."

In opposition to Reynard's retroactivity argument under the first prong of St. Cyr, the government proffers four sources of evidence which purportedly demonstrate Congress's clear and unambiguous intent to apply the DNA Act retroactively. First, the government cites to the language of § 14135a(a)(2) stating that the probation office "shall...