U.S. v. Hook

• Decision Date: 13 December 2006
• Docket Number: No. 06-1362.,06-1362.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. George C. HOOK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

471 F.3d 766

UNITED STATES of America, Plaintiff-Appellee, v. George C. HOOK, Defendant-Appellant.

No. 06-1362.

United States Court of Appeals, Seventh Circuit.

Argued September 27, 2006.

Decided December 13, 2006.

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David E. Bibdi (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Michael B. Cohen (argued), Chicago, IL, for Defendant-Appellant.

Before POSNER, MANION, and WILLIAMS, Circuit Judges.

MANION, Circuit Judge.

George Clive Hook, a white collar criminal, was scheduled by his probation officer to submit to DNA collection while serving his term of supervised release. Hook filed a verified petition with the district court objecting to this process. The district court denied Hook's petition and ordered him to submit to DNA collection. Hook appeals, and we affirm.

I.

In 1998, George Clive Hook was convicted by a jury of wire fraud, money laundering, and theft involving an employee benefit plan. The district court sentenced Hook to eighty-four months' imprisonment and thirty-six months of supervised release. Among the conditions of his supervised release, the district court ordered Hook to follow his probation officer's instructions and not to commit any additional crimes. After serving his term of imprisonment and over a year of supervised release, Hook's probation officer scheduled him for DNA collection in October 2005 pursuant to the Justice for All Act of 2004, Pub. Law No. 108-405, 118 Stat. 2260, and the DNA Analysis Backlog Elimination Act of 2000, Pub. Law No. 106-546, 114 Stat. 2726 (codified at 42 U.S.C. §§ 14135-14135e) (collectively "DNA Act"). Hook filed a verified petition in the district court alleging that the DNA collection violated his contract with the government, violated his rights under the Fourth, Fifth, Eighth, Ninth, Tenth, and Thirteenth Amendments, and violated the Ex Post Facto and Bill of Attainder clause, Article I, § 9, the Equal Protection clause, Article IV, § 2, of the Constitution, and the separation of powers doctrine. After a hearing, the district court denied Hook's petition, finding the DNA Act constitutional, and ordered him to submit to DNA testing. Hook appeals, raising the issues set forth in his petition and further arguing that the district court abused its discretion in denying his request for termination of supervised release. We first set forth the landscape of the DNA Act and then address each of Hook's claims in turn.

II.

In 2000, Congress enacted the DNA Analysis Backlog Elimination Act, which required DNA samples to be collected from individuals in custody and while on probation, parole, or supervised release after being convicted of certain violent crimes. 42 U.S.C. § 14135a(d) (2001). Congress amended the supervised release statute to add the DNA sample requirement to supervised release. 18 U.S.C. § 3583(d). Then in 2004, Congress passed the Justice For All Act which amended the DNA Act, expanding the list of qualifying offenses to include, as relevant here, any felony. 42 U.S.C. § 14135a(d) (2004). Congress mandated that the United States Probation Office collect DNA samples of those individuals under its supervision and submit those samples to the Federal Bureau of Investigation ("FBI") for inclusion in its Combined DNA Index System ("CODIS"). 42 U.S.C. § 14135a(a)(2), (b). Failure of an individual covered by the DNA Act to submit to DNA collection constitutes a class A misdemeanor subject to punishment according to Title 18. 42 U.S.C. § 14135a(a)(5). The information maintained in CODIS may be disclosed only to law enforcement agencies for "identification purposes," "in judicial proceedings," "for criminal defense purposes," and for statistical and quality control purposes, in the case of the latter if personally identifiable information is first removed. 42 U.S.C. § 14132(b)(3)(A)-(D). Finally, the DNA Act provides a criminal penalty for those who improperly use or disclose CODIS information. 42 U.S.C. § 14133(c).

Against this backdrop, we consider Hook's challenge to the probation officer's directive to submit to DNA collection. In challenging the DNA collection, Hook makes three arguments: First, he claims that requiring him to submit to DNA collection is an impermissible modification of his term of supervised release. Second, he argues that the district court abused its discretion by failing to consider his request for termination of supervised release. Third, he contends that the imposition of the DNA collection requirement violates a contract he entered into with the United States at the time he was sentenced to a term of supervised release. We review legal questions de novo. United States v. Cellitti, 387 F.3d 618, 621 (7th Cir.2004). A district court's imposition of conditions of supervised release or denial of requests for modification is reviewed for abuse of discretion. United States v. Nonahal, 338 F.3d 668, 670 (7th Cir.2003) (citation omitted).

Hook first contends that the DNA collection requirement is a modification of his sentence of supervised release. Specifically, he argues that the DNA collection requirement constitutes an additional, impermissible condition of his term of supervised release because it was not imposed as a condition originally at the time of his sentencing. However, as noted above, the original term of supervised release instituted by the district court required Hook to "follow the instructions of the probation officer" and not "commit another federal, state, or local crime." In this case, the probation officer instructed Hook to submit to DNA collection, and this brings the DNA collection into his original sentence.

Moreover, even if the DNA testing did not fit with the terms of the original sentence, the district court held a hearing on Hook's petition prior to ordering him to comply with the DNA testing. This hearing satisfies the conditions of Fed. R.Crim.P. 32.1(c)(1), which requires a hearing prior to the modification of the terms of supervised release. Therefore, to the extent that there was any modification, the modification was properly made.

Second, Hook asserts that the DNA collection requirement violates "the agreement between U.S. [sic] and Hook," and that collection breaches his contract with the government. There was no plea agreement in this case, but rather Hook was convicted by a jury. While there is nothing before us on appeal to suggest that there was an agreement between the government and Hook regarding sentencing recommendations, even if such an agreement existed, the district court is not bound by any recommendations made by the government at sentencing. United States v. Grimm, 170 F.3d 760, 768 (7th Cir.1999). Moreover, a sentence within the sentencing guidelines and below the statutory maximum does not create a contract. Therefore, Hook's argument based on contract fails because no contract is present in this situation.

Hook also claims that the district court abused its discretion by failing to consider his request to terminate supervised release. Section 3583(e)(1) provides that "a court may, after considering the factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7) — terminate a term of supervised release and discharge the defendant released at any time after the expiration of one year of supervised release. . . ." 18 U.S.C. § 3583(e)(1) (emphasis added). The language in this statute is discretionary, and the district court has wide discretion in determining whether to terminate an individual's term of supervised release. See United States v. Sines, 303 F.3d 793, 800 (7th Cir.2002). We find that Hook "makes no real effort to explain how the district court abused its discretion in refusing to modify his supervised release conditions." Nonahal, 338 F.3d at 670 (citation omitted). Rather, Hook merely asserts that he is entitled to a termination of his supervised release because the government attempted to improperly impose an additional condition of supervised release, namely DNA collection. Hook believes this somehow should exempt him from the completion of his term of supervised release. He cites no authority showing how an attempt to improperly impose an additional term of supervised release would render improper any remaining time on supervised release. Clearly, the statutory mandate for the DNA collection did not constitute an improper additional term. Accordingly, the district court did not abuse its discretion by denying Hook's request for termination of supervised release.¹

Turning now to Hook's constitutional claims: Hook asserts that the DNA Act violates numerous sections of the Constitution, including the Fourth, Fifth, Eighth, Ninth, Tenth, Thirteenth and Fourteenth Amendments, the Ex Post Facto and Bill of Attainder Clause, and the separation of powers doctrine. We begin with Hook's Fourth Amendment claim. Hook contends that the DNA Act violates his Fourth Amendment right against unreasonable searches and seizures and that the DNA Act is not exempted from the Fourth Amendment warrant requirement by either special needs or the totality of the circumstances.

In Green v. Berge, 354 F.3d 675 (7th Cir.2004), this court previously addressed whether a Wisconsin statute requiring convicted felons to furnish DNA samples for a state data bank violated the Fourth Amendment. In Green, we concluded that taking a DNA sample is a Fourth Amendment search, but that such a search may be reasonable if it falls into an exception to the warrant requirement. Green, 354 F.3d at 677. We applied the "special needs" approach, which provides an exemption from the Fourth Amendment warrant requirement when there are "special needs, beyond the normal need for law enforcement, mak[ing] the warrant and probable-cause requirement impracticable." Griffin v. Wisconsin, 483 U.S. 868, 873, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987) (quoting New...