U.S. v. Fazzini, 03-1167.

• Decision Date: 26 July 2005
• Docket Number: No. 03-2552.,No. 03-1167.,03-1167.,03-2552.
• Citation: 414 F.3d 695
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Paul FAZZINI, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 695

414 F.3d 695

UNITED STATES of America, Plaintiff-Appellee, v. Paul FAZZINI, Defendant-Appellant.

No. 03-1167.

No. 03-2552.

United States Court of Appeals, Seventh Circuit.

Argued September 30, 2004.

Decided July 6, 2005.

Rehearing Denied July 26, 2005.

Stephen Heinze (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Andrew S. Marovitz (argued), Mayer, Brown, Rowe & Maw, Chicago, IL, for Defendant-Appellant.

Before ROVNER, WOOD, and SYKES, Circuit Judges.

WOOD, Circuit Judge.

After serving 14 years for armed bank robbery, Paul Fazzini was released from federal prison on March 22, 2001. While Fazzini's post-release status has since become a disputed issue, at the time of his release, both he and the government believed that he was on probation. (Fazzini was sentenced before the Federal Sentencing Guidelines came into effect, which is why supervised release was not an option.) One condition of his probation required him to submit blood so that his DNA could be catalogued in the government's ever-growing database. See National DNA Index System, Statistics, available at http://www.fbi.gov/hq/lab/codis/clickmap.htm (as of April 2005, the Combined DNA Index System (CODIS) contained 2,443,274 distinct DNA profiles). The federal DNA Analysis Backlog Elimination Act of 2000, 42 U.S.C. §§ 14135-14135e, now makes cooperation a condition of probation or parole, see 42 U.S.C. § 14135c, and failure to comply constitutes a misdemeanor, see 42 U.S.C. § 14135a(a)(5).

Fazzini objected to having his blood or DNA collected. On September 17, 2002, he filed a motion with the district court arguing that being forced to provide a blood sample conflicts with his Christian Scientist beliefs, violates his rights under the Fourth and Fifth Amendments, and contravenes the Constitution's ex post facto clause. (He did not say anything about the Religious Freedom Restoration Act, RFRA, 42 U.S.C. § 2000bb-1, and thus neither do we.) Fazzini asked the district court to appoint counsel on his behalf and permanently enjoin the government from enforcing the Act against him. The district court denied both requests and ordered Fazzini to comply. Fazzini appealed. Interesting though the merits of the DNA claim may be, we must first untangle the snarl of jurisdictional issues that have arisen. We conclude that we have appellate jurisdiction over the appeal, but that the district court lacked jurisdiction to consider the merits of Fazzini's claims. We therefore vacate the district court's order.

I

When the district court denied Fazzini's motions for injunctive relief and appointment of counsel on November 7, 2002, it offered no explanation for its decision, nor did it enter anything looking like a final judgment under FED. R. CRIM. P. 32(k) or 32.1 and 18 U.S.C. § 3565(a). At that point, Fazzini's probation officer filed a Special Report with the court, requesting a rule to show cause why Fazzini's probation should not be revoked because of his failure to cooperate with this condition. The court set a hearing for December 17, 2002. When Fazzini did not show up for this hearing, a warrant was issued for his arrest. After the authorities caught up with him on January 8, 2003, the judge rescheduled the probation revocation hearing for January 10, 2003.

At the January 10 hearing, the court decided on its own initiative to reconsider its earlier denial of Fazzini's request for the injunction, stating: "I have ruled on it but I took another look at it.... I have attempted to read this Christian Science doctrine, the fact of the matter is, he is prohibited from voluntary acts. This one is involuntary because I am ordering him to do it." The court then reinstated Fazzini's probation and ordered him to "comply with the direction of the probation officer."

A week later, Fazzini, proceeding pro se, filed his first notice of appeal to this court (No. 03-1167), asking us to overturn the district court's decision denying his request for an injunction. Noting that the original order denying the injunction was docketed on November 7, 2002, and concerned that the January 10 hearing may not have resulted in a final decision with respect to the requested injunctive relief, we ordered both parties to address the potential jurisdictional snag. Although interlocutory appeals are possible from orders granting or denying injunctive relief, see 28 U.S.C. § 1292(a)(1), FED. R. APP. P. 4(b)(1) nevertheless requires that the notice of appeal in a criminal case "must be filed with the district court within 10 days after the later of: (i) the entry of either the judgment or the order being appealed...." Later, the district court entered an order on June 6, 2003, confirming that the January 10 transcript "contains the final orders of the Court." Fazzini filed his second notice of appeal (No. 03-2552) from that order.

After the case reached this court, the government realized that it had made a mistake. From the time of Fazzini's release in March 2001, Fazzini and the government had been proceeding under the assumption that Fazzini was serving his five-year term of probation. Soon after his release, the United States Probation Office executed a document stating that Fazzini's "term of probation is for a period of 5 years commencing on March 22, 2001." In preparation for this appeal, however, the government discovered an even earlier document, signed on the day of Fazzini's release, which purported to place him under mandatory release, a form of parole. Fazzini's exit document read, "Upon release, the above named person is to remain under the jurisdiction of the United States Parole Commission, as if on parole." After accepting this new evidence into the record, we ordered the parties to address its jurisdictional implications in their briefs on the merits.

If all of this were not enough, Fazzini was arrested in Ohio on September 11, 2003, for speeding. He was outside the bounds of his post-release travel perimeter and possessed a counterfeit driver's license. A search of his car turned up evidence suggesting that he was planning a bank robbery spree across Wisconsin, Illinois, Indiana, and Ohio. At this point, on the new understanding that Fazzini was on a form of parole and not probation, the government instituted parole revocation proceedings against him. On March 30, 2004, the U.S. Parole Commission revoked Fazzini's parole. We learned at oral argument that Fazzini has filed a habeas corpus petition in Ohio, contending, as he does here, that he was on probation at the time of his rearrest. If this were so, there would be no parole for the Parole Commission to revoke (although it seems likely that some action would still be possible, given his extensive misbehavior).

II

The original point of this appeal, the constitutionality of the DNA Act, is now buried beneath these procedural complications. The first question is whether we have appellate jurisdiction over the case. That issue turns on whether Fazzini filed a timely notice of appeal. If appellate jurisdiction is secure, the next question is whether the district court had jurisdiction. The answer to that depends on whether Fazzini was on probation, which would be within the district court's power to address, or parole, which is under the exclusive control of the Parole Commission.

The government argues that we do not have jurisdiction to hear this case because Fazzini's notice of appeal even in No. 03-1167 was untimely. It reasons that since the district court denied Fazzini's motion to enjoin the application of the DNA Act in November 2002, Fazzini's January 17, 2003 notice of appeal was far past the 10-day window allowed by FED. R. APP. P. 4(b). Because this was, at root, a criminal case, it is not governed by the documentation requirements for final judgments found in FED. R. CIV. P. 58. Instead, the procedures governing revocation or modification of probation were the applicable ones, if anything authorized the district court to act. See 18 U.S.C. § 3565(a); FED. R. CRIM. P. 32.1(d). Under § 3565(a), the district court was free to examine the question of Fazzini's alleged probation at any time prior to the expiration of the term of probation (and indeed, under § 3565(c), even beyond that term as long as the warrant or summons had been issued prior to its expiration). The district court was therefore free to reconsider its decision in January 2003, and Fazzini remained free to file a notice of appeal from either that ruling or the June 6 order. This court therefore has jurisdiction to decide the appeals.

The question whether the district court had jurisdiction over the case is more difficult. As we noted, it turns on whether Fazzini left prison on probation or parole. The district court is the entity with the power to continue, modify, or revoke probation. See 18 U.S.C. §§ 3563(c), 3565. Parole, however, falls under the clemency powers delegated to the Executive Branch, see U.S. CONST., art. II, § 2. If Fazzini's mandatory release really was a form of parole, as the initial document issued by the Probation Office stated, then the district court would have had no jurisdiction to act in response to a request to modify or revoke it. See 18 U.S.C. § 4214 (repealed by the Sentencing Reform Act of 1984, but remaining in effect for defendants, like Fazzini, who committed the underlying offense before November 1, 1987. Pub.L. 98-473, Title II, § 218(a)(4), Oct. 12, 1984, 98 Stat. 2027; we refer to this below by noting statutory provisions that are still in effect for parolees). In the event the Parole Commission rejected Fazzini's challenge to the DNA condition, he perhaps could pursue the matter using a writ of habeas corpus, see 28 U.S.C. § 2241, a Bivens action, see Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, ...