402 F.3d 175 (3rd Cir. 2005), 03-2173, United States v. Sczubelek

Docket Nº:03-2173.
Citation:402 F.3d 175
Party Name:UNITED STATES of America v. Paul G. SCZUBELEK, Appellant.
Case Date:March 21, 2005
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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402 F.3d 175 (3rd Cir. 2005)



Paul G. SCZUBELEK, Appellant.

No. 03-2173.

United States Court of Appeals, Third Circuit.

March 21, 2005.

Argued Feb. 12, 2004

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Eleni Kousoulis (Argued), Office of Federal Public Defender, Wilmington, DE, for Appellant.

Adam G. Safwat (Argued), Office of United States Attorney, Wilmington, DE, for Appellee.

Before: SCIRICA, Chief Judge, ROTH and MCKEE Circuit Judges.


ROTH, Circuit Judge.

The DNA Analysis Backlog Elimination Act of 2000 (DNA Act), 42 U.S.C.§§ 14135--14135e (2001 Supp.), mandates the collection of DNA samples from prisoners, parolees, and individuals on probation and supervised release who have committed certain qualifying offenses. While Paul Sczubelek was on supervised release, he refused his probation officer's direction to give a DNA sample. The District Court ordered him to do so. Sczubelek appealed on the grounds that the collection of a DNA sample is an unconstitutional search in violation of the Fourth Amendment and also in violation of the separation of powers doctrine. Prior to oral argument in this appeal, Sczubelek finished serving his term of supervised release. For this reason,

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he now also asks that we dismiss his appeal as moot because the District Court no longer has jurisdiction over him to enforce its order.

We conclude first of all that this case is not moot. The District Court's jurisdiction extended beyond the expiration of Sczubelek's term of supervised release because, while Sczubelek was still serving his term of supervised release, the court issued a summons based on a violation of a condition of his release and the delay between the expiration of his term and the adjudication of the violation is "reasonably necessary." See 18 U.S.C. § 3583(i). Turning to the merits of his appeal, we conclude that under Fourth Amendment reasonableness standard for analyzing the constitutionality of government searches and seizures, the collection of DNA samples from individuals on supervised release is constitutional. The government's interest in building a DNA database for identification purposes, similar to its interest in maintaining fingerprint records, outweighs the minimal intrusion into a criminal offender's diminished expectation of privacy. We conclude finally that there is no violation of the separation of powers doctrine in the assignment to the U.S. Probation Office of the taking of the DNA samples.


On June 17, 1994, a jury convicted Paul Sczubelek of three counts of bank robbery under 18 U.S.C. § 2113(a) and one count of structuring cash transactions under 31 U.S.C. §§ 5322(a) and 5324(3). On September 16, 1994, the District Court sentenced Sczubelek to 87 months of imprisonment and three years of supervised release. The conditions of Sczubelek's term of supervised release did not expressly include submitting a DNA sample. Sczubelek was released from prison in August 2000 and placed on home confinement until he began serving his term of supervised release on October 6, 2000. Shortly thereafter, Congress enacted the DNA Act. The submission of a DNA sample then became a mandatory condition of supervised release. Approximately one year after Sczubelek commenced serving his term, a probation officer informed Sczubelek that he must submit to DNA collection on September 25, 2002. Sczubelek refused.

On October 1, 2002, the Probation Office filed a petition for violation of a mandatory condition of supervised release. On October 15, the District Court ordered Sczubelek to appear for a hearing on the alleged violation. After briefing and a hearing, the court found that the DNA Act's requirement that Sczubelek "submit to a DNA sampling does not violate his Fourth Amendment right against unreasonable searches and seizures." United States v. Sczubelek, 255 F.Supp.2d 315, 317 (D.Del.2003). The court also held that the DNA Act did not violate either the separation of powers doctrine or the ex post facto clause of the United States Constitution. Id. at 324. The court ordered Sczubelek to report by May 9, 2003, to a phlebotomist to have his blood taken.

Sczubelek filed his notice of appeal on April 14, 2003. On April 15, he moved the District Court to stay its order pending this appeal. In support of his motion to stay, Sczubelek asserted that if he were to "be required to submit to the taking of his blood for the purposes of obtaining a DNA sample prior to the resolution of his appeal, it would moot the issues raised in his appeal." On April 16, the District Court issued an order granting the stay. The next day, the government filed its opposition to Sczubelek's request for a stay, arguing that Sczubelek could petition the court to have his DNA information expunged

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from CODIS in the event he prevailed on appeal.

On October 5, 2003, Sczubelek's term of supervised release ended. The United States Probation Office for the District of Delaware sent Sczubelek a letter notifying him that his term of supervised release had been terminated and that he had satisfied all terms and conditions of his supervised release. On January 26, 2004, Sczubelek filed a motion to dismiss his appeal, asserting that the case is now moot because he is no longer on supervised release.


The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291.

We exercise plenary review over jurisdictional issues, including whether this case is moot. See Belitskus v. Pizzingrilli, 343 F.3d 632, 639 (3d Cir.2003). We also exercise plenary review over the District Court's resolution of the constitutional issues Sczubelek raises in his appeal. United States v. Ledesma-Cuesta, 347 F.3d 527, 530 (3d Cir.2003).


A. Mootness

Sczubelek argues that his appeal is moot because, even if the government prevails, the District Court no longer has jurisdiction over him to collect a DNA sample. In view of the fact that the DNA Act authorizes the collection of a DNA sample only from prisoners, parolees, and individuals on probation and supervised release and Sczubelek is no longer on supervised release, he asserts that the government has no authority under the DNA Act to collect the sample from him. The government contends on the other hand that, pursuant to 18 U.S.C. § 3583(i), the District Court's jurisdiction to enforce an order it entered during Sczubelek's supervised release survives the expiration of his term of supervised release.

Under Article III, § 2, of the United States Constitution, we have the ability to entertain only cases and controversies. "Article III requires that an actual controversy exist through all stages of litigation, including appellate review." United States v. Kissinger, 309 F.3d 179, 180 (3d Cir.2002). A case should be dismissed as moot where "developments occur during the course of adjudication that eliminate a plaintiff's personal stake in the outcome of a suit or prevent a court from being able to grant the requested relief...." Morris v. Nationalist Movement, 273 F.3d 527, 533 (3d Cir.2001).

Here, the "development" which raises the issue of mootness is Sczubelek's discharge from supervised release. If the government no longer has the authority to collect a DNA sample from Sczubelek, there is no need to determine the constitutionality of taking that sample. We agree with the government, however, that, even though Sczubelek's term of supervised release has expired, the District Court retains jurisdiction pursuant to 18 U.S.C. § 3583(i) to adjudicate a violation of his supervised release. Section 3583(i), entitled "Delayed revocation," provides:

The power of a court to revoke a term of supervised release for violation of a condition of supervised release, and to order the defendant to serve a term of imprisonment ... extends beyond the expiration of the term of supervised release for any period reasonably necessary for the adjudication of matters arising before its expiration if, before its expiration, a warrant or summons has

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been issued on the basis of an allegation of such a violation.

18 U.S.C. § 3583(i).

Even though this is the first opportunity we have had to address this issue in the context of an individual on supervised release, we have addressed similar challenges in the context of parole and probation. See Franklin v. Fenton, 642 F.2d 760 (3d Cir.1980); United States v. Bazzano, 712 F.2d 826 (3d Cir.1983). In Franklin, we rejected the defendant's argument that it was unlawful to execute a warrant after his parole ended. We noted that "[s]ince the original warrant was issued within the petitioner's original term, it could be executed thereafter." 642 F.2d at 764. In Bazzano, we decided that as long as formal revocation proceedings begin within a defendant's term of probation, a district court could revoke probation after the term expired. 712 F.2d 826, 835 (1983). We observed:

It is difficult to think of a reason why a court should arbitrarily lose jurisdiction at the end of the five-year statutory period when the alleged violation took place within the five-year period and the probationer was formally notified within that period that the Government would seek to revoke his probation.


In the context of supervised release, our sister courts of appeals have reached the same conclusion. Even before Congress added subsection (i) to § 3583 in 1994, the Courts of Appeals for the Fourth and Ninth Circuits held that, even if the term of supervised release had expired, a district court could hold a hearing and revoke the defendant's supervised release as long as some formal revocation proceeding had begun within the term of supervised release--whether it be a warrant, summons, an order to show cause, or a petition charging a violation of supervised release. See United States v....

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