United States v. Hook, George ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-1362
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
GEORGE C. HOOK,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04 CR 1045—Joan Humphrey Lefkow, Judge.
____________
ARGUED SEPTEMBER 27, 2006 —DECIDED DECEMBER 13, 2006
____________
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 super-
vised release. Hook filed a verified petition with the dis-
trict 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.
2 No. 06-1362
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 super-
vised 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 con-
tract with the government, violated his rights under the
Fourth, Fifth, Eighth, Ninth, Tenth, and Thirteenth Amend-
ments, 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.
No. 06-1362 3
II.
In 2000, Congress enacted the DNA Analysis Backlog
Elimination Act, which required DNA samples to be col-
lected from individuals in custody and while on probation,
parole, or supervised release after being convicted of cer-
tain 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 sam-
ples of those individuals under its supervision and sub-
mit 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 informa-
tion 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 col-
lection. In challenging the DNA collection, Hook makes
three arguments: First, he claims that requiring him to
4 No. 06-1362
submit to DNA collection is an impermissible modifica-
tion 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 collec-
tion 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. Celliti, 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 require-
ment constitutes an additional, impermissible condition
of his term of supervised release because it was not im-
posed as a condition originally at the time of his sentenc-
ing. However, as noted above, the original term of super-
vised 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 com-
ply 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 modi-
fication, the modification was properly made.
No. 06-1362 5
Second, Hook asserts that the DNA collection require-
ment violates “the agreement between US [sic] and Hook,”
and that collection breaches his contract with the govern-
ment. There was no plea agreement in this case, but rather
Hook was convicted by a jury. While there is nothing be-
fore us on appeal to suggest that there was an agreement
between the government and Hook regarding sentenc-
ing 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 con-
tract is present in this situation.
Hook also claims that the district court abused its dis-
cretion 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 individ-
ual’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 ter-
mination of his supervised release because the govern-
6 No. 06-1362
ment 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 separa-
tion of powers doctrine. We begin with Hook’s Fourth
Amendment claim. Hook contends that the DNA Act
violates his Fourth Amendment right against unreason-
able searches and seizures and that the DNA Act is not
exempted from the Fourth Amendment warrant require-
ment by either special needs or the totality of the circum-
stances.
In Green v. Berge, 354 F.3d 675 (7th Cir. 2004), this court
previously addressed whether a Wisconsin statute requir-
ing convicted felons to furnish DNA samples for a state
data bank violated the Fourth Amendment. In Green, we
1
Hook also attempts to challenge the restitution order origi-
nally imposed. Because restitution was part of his original
sentence, any challenge to that order needed to be made on
direct appeal within ten days. Fed. R. App. P. 4(b)(1). Hook did
not appeal from that sentence and cannot challenge the restitu-
tion order.
No. 06-1362 7
concluded that taking a DNA sample is a Fourth Amend-
ment 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, be-
yond the normal need for law enforcement, mak[ing]
the warrant and probable-cause requirement imprac-
ticable.” Griffin v. Wisconsin, 483 U.S. 868, 873 (1987)
(quoting New Jersey v. T.L.O., 469 U.S. 325, 351 (1985)). The
considerations that are examined in determining whether
a search qualifies as a special need include the govern-
mental interest involved, the nature of the intrusion, the
privacy expectations of the object of the search, and the
manner in which the search is executed. Green, 354 F.3d at
677 (citation omitted). Key to our holding in Green was
that the primary purpose of the statute was not to search
for evidence of criminal wrongdoing, but to “obtain reli-
able proof of a felon’s identity,” that those subject to the
law were aware of the purpose of the collection, and
that there were safeguards to protect against unauthorized
use of the information. Id. at 678-79. We concluded that the
Wisconsin statute was “narrowly drawn,” served an
“important state interest,” provided the “most reliable
evidence of identification” of those in custody, and there-
fore withstood “constitutional attack under the firmly
entrenched ‘special needs doctrine.’ ” Id. at 679.
The federal DNA Act mirrors the Wisconsin statute in
several important ways. Like the DNA Act, the Wisconsin
statute required all imprisoned felons in Wisconsin to
submit DNA samples. Id. at 676. The Wisconsin statutory
scheme also similarly provided that the samples be held
at the state crime laboratory subject to confidentiality
8 No. 06-1362
provisions and sanctions for misuse of the information. Id.(citations omitted). In light of these similarities, we find
our analysis in Green instructive in addressing Hook’s
Fourth Amendment challenge of the federal DNA Act.
Hook attempts to distinguish Green by focusing on the
fact that Green was incarcerated and not on supervised
release. The difference between those in custody and
those under supervision is a distinction without a differ-
ence for the purposes of the DNA Act and the Fourth
Amendment. Individuals under supervision are subject to
control by the state, although to a lesser degree than those
incarcerated. See id. at 680 (Easterbrook, J., concurring).
Those under supervised release “do not enjoy ‘the absolute
liberty to which every citizen is entitled, but only . . .
conditional liberty properly dependent on observance
of special restrictions.’ ” Griffin, 483 U.S. at 874 (quoting
Morrissey v. Brewer, 408 U.S. 471, 480 (1972) (describing
individuals on parole or probation)). Furthermore, the
management of supervised release “presents ‘special
needs’ beyond normal law enforcement that may justify
departures from the usual warrant and probable-cause
requirements.” Id. at 873. Therefore, insofar as Green
addresses the special needs of DNA collection statutes, we
find it instructive.
As we noted in Green, “state and federal courts that have
[addressed the validity of DNA collection statutes] are
almost unanimous in holding that these statutes do not
violate the Fourth Amendment.” Green, 354 F.3d at 677(citation omitted), see also Johnson v. Quander, 440 F.3d 489,
496 (D.C. Cir. 2006); United States v. Conley, 453 F.3d 674,
677 (6th Cir. 2006); United States v. Kraklio, 451 F.3d 922, 924
(8th Cir. 2006); United States v. Sczubelek, 402 F.3d 175, 184
(3d Cir. 2005); Groceman v. U.S. Dept. of Justice, 354 F.3d 411,
No. 06-1362 9
413-14 (5th Cir. 2004); United States v. Kincade, 379 F.3d 813,
838-39 (9th Cir. 2004); United States v. Kimler, 335 F.3d 1132,
1146 (10th Cir. 2003); Boling v. Romer, 101 F.3d 1336, 1340
(10th Cir. 1997); Jones v. Murray, 962 F.2d 302, 308 (4th Cir.
1992). As we found in Green, taking a DNA sample is a
Fourth Amendment search, but such a search may be
reasonable if it falls into an exception to the warrant
requirement. Green, 354 F.3d at 677. While some circuits
have employed a reasonableness standard, see, e.g.,
Sczubelek, 402 F.3d at 184; Kraklio, 451 F.3d at 924, we
employed the “special needs” approach in Green and will
do the same here.
The federal DNA Act seeks to establish a database of
accurate felon identification information and to deter
recidivism, see Kincade, 379 F.3d at 838-39, not to search for
information on a specific crime or to detect “ordinary
criminal wrongdoing,” City of Indianapolis v. Edmond, 531
U.S. 32, 38 (2000). The DNA Act also restricts the use of
information collected, limiting who may receive the
information and penalizing those who misappropriate the
information. See 42 U.S.C. § 14135e. Furthermore, the
probation officer has no discretion about who will be sub-
ject to DNA collection: all individuals covered by the
DNA Act must provide a DNA sample. See 42 U.S.C.
§ 14135a(a)(2). As we noted above, the statute only
covers individuals who are subject to restrictions on their
liberty through custody, probation, or supervision. Further,
the blood draw that is employed to collect a DNA sample
is considered routine, see Schmerber v. California, 384 U.S.
757, 771 n.13 (1966) (quoting Breithaupt v. Abram, 352
U.S. 432, 436 (1957)), and the intrusion minimal, Sczubelek,
402 F.3d at 184. While a DNA sample contained in CODIS
may be used at a later date in relation to law enforcement,
10 No. 06-1362
such information may also be used to exonerate an indi-
vidual. Id. at 185. Regardless, the special need is primary
and “goes beyond the ordinary law enforcement need.”
Kimler, 335 F.3d at 1146. All of these characteristics of the
DNA Act support a finding that it qualifies as a special
need justifying a departure from the usual warrant and
probable cause requirements of the Fourth Amendment.
See Griffin, 483 U.S. at 873. Accordingly, applying the
reasoning in Green to the federal DNA Act, we con-
clude that because “DNA testing of [supervised releasees]
is ultimately for a law enforcement goal, it seems to fit
within the special needs analysis the [Supreme] Court has
developed for drug testing and searches of probationers’
homes, since it is not undertaken for the investigation of a
specific crime.” Green, 354 F.3d at 678 (citation omitted).
Therefore, we conclude that the DNA Act does not vio-
late the Fourth Amendment.
Hook next argues that the DNA collection requirement
violates his Fifth Amendment rights by inducing self-
incrimination and depriving him of property without due
process. Hook, however, did not provide citation sup-
port or substantive argument for his assertion that the
DNA Act constitutes a deprivation of property without
due process. Therefore, this argument is waived, and we
need not address it. See United States v. Brown, 899 F.2d 677,
679 n.1 (7th Cir. 1990). His claim of unconstitutional self-
incrimination also fails because the taking of blood sam-
ples or fingerprints is not testimonial evidence and as
such is not protected by the Fifth Amendment. United States
v. Pipito, 861 F.2d 1006, 1009 (7th Cir. 1987) (citing
Schmerber v. California, 384 U.S. 757 (1966)). The Fifth
Amendment also does not protect photographing or
requiring an individual to speak for identification pur-
poses. Id. Accordingly, the DNA collection done here by
No. 06-1362 11
means of a non-testimonial blood draw is not protected by
the Fifth Amendment. Moreover, the information that is
extracted from the blood, DNA, is another form of physi-
cal, genetic identification of an individual not unlike a
photograph or fingerprint and is thus also not protected by
the Fifth Amendment.
We next address Hook’s equal protection argument.2
Hook argues that applying the DNA Act to him because he
was on “supervised release for federal offenses which
had nothing to do with bodily fluids” is a denial of his
right to equal protection. The equal protection clause of the
Constitution “secure[s] every person within the State’s
jurisdiction against intentional and arbitrary discrimina-
tion, whether occasioned by express terms of a statute or
by its improper execution through duly constituted
agents.” Smith v. City of Chicago, 457 F.3d 643, 650 (7th Cir.
2006). The level of scrutiny applied in determining whether
the appropriate protection has been afforded depends
upon the class that is involved, i.e., a suspect, quasi-
suspect, or other classification. Artway v. Att’y Gen., 81 F.3d
1235, 1267 (3d Cir. 1996) (citing City of Cleburne v. Cleburne
Living Ctr., 473 U.S. 432, 439 (1985)). Felons are not a
2
Although Hook does not classify his equal protection claim
under the Fifth Amendment, the Supreme Court has noted that
while the Fourteenth Amendment applies to the states, the Fifth
Amendment applies to the federal government and also
“contains an equal protection component.” San Francisco Arts &
Athletics, Inc. v. U.S. Olympic Comm., 483 U.S. 522, 542 n.21 (1987).
The approach to Fifth Amendment equal protection claims has
“been precisely the same as to equal protection claims under the
Fourteenth Amendment.” Id. (quoting Weinberger v. Wiesenfeld,
420 U.S. 636, 638 n.2 (1975)).
12 No. 06-1362
protected class, and therefore the government need only
have a rational basis for the DNA Act. Baer v. City of
Wauwatosa, 716 F.2d 1117, 1125 (7th Cir. 1983). To prevail
on his claim, then, Hook “must prove the following: (1) the
defendant intentionally treated him differently from others
similarly situated, (2) the defendant intentionally treated
him differently because of his membership in the class to
which he belonged, and (3) the difference in treatment was
not rationally related to a legitimate state interest.” Smith,
457 F.3d at 650-51 (citation omitted).
As a threshold matter, Hook does not identify those
similarly situated to himself who are treated differently
by virtue of the DNA Act. In any event, the DNA Act
is rationally related to the government’s interests in
deterring recidivism and maintaining accurate identifica-
tion information of criminals, regardless of the rate of
recidivism among certain types of offenders. See United
States v. Conley, 453 F.3d 674, 679 (6th Cir. 2006) (citation
omitted) (upholding the DNA Act and noting that “rate of
recidivism in certain groups of white-collar criminals is
very close to the rate of recidivism in firearm offenders,
and is only slightly lower than felons convicted of rob-
bery,” in response to a white collar defendant’s challenge
of the DNA Act as applied to white collar criminals).
Therefore, in light of this rational basis and the minimal
inconvenience presented to Hook by submitting to a blood
draw, we find no equal protection violation.
In addition to the Fourth and Fifth Amendments, Hook
contends that the DNA Act violates the Eighth Amend-
ment. “The Eighth Amendment prohibits punishments
which involve the unnecessary and wanton infliction of
pain, are grossly disproportionate to the severity of the
crime for which an inmate was imprisoned, or are totally
No. 06-1362 13
without penological justification.” Whitman v. Nesic, 368
F.3d 931, 934 (7th Cir. 2004) (citations omitted). As stated
above, blood draws are considered routine. See Schmerber
v. California, 384 U.S. 757, 771 n.13 (1966) (quoting
Breithaupt v. Abram, 352 U.S. 432, 436 (1957)). Further, the
government’s desire for identifying information along
with the minimal pain and discomfort accompanying a
blood draw take the DNA Act outside of the ambit of
cruel and unusual punishment. Under these circum-
stances, DNA collection does not constitute cruel and
unusual punishment.3
We now turn to Hook’s Ninth, Tenth, and Thirteenth
Amendment claims. “We repeatedly have made clear that
perfunctory and undeveloped arguments, and arguments
that are unsupported by pertinent authority, are waived
(even where those arguments raise constitutional issues).”
United States v. Lanzotti, 205 F.3d 951, 957 (7th Cir. 2000)
(citing United States v. Berkowitz, 927 F.2d 1376, 1384 (7th
Cir. 1991)); Fed. R. App. P. 28(a)(4). In this case, Hook fails
to elucidate what rights, if any, he has retained by virtue of
the Ninth Amendment which the DNA Act violates. Hook
also fails to cite any case law in support of his Ninth
Amendment claim. Similarly, as the district court stated
in addressing Hook’s Tenth Amendment claim, Hook
“fails to assert any authority in support of his argument”
3
Hook provides an uncited, but novel assertion that the
Founding Fathers would have considered “blood extraction” to
be “cruel and unusual punishment” because, purportedly,
“[v]ampires were feared and vilified” at the time of the Found-
ing. Even accepting this proposition, blood extraction by a
vampire is certainly distinguishable from a sanitary blood draw
under current medical practice.
14 No. 06-1362
that the DNA Act violates the Tenth Amendment. Hook’s
invocation of the Tenth Amendment, without any explica-
tion, is “perfunctory and undeveloped.” Further, his
arguments regarding any Commerce Clause implications
are without citation or merit.4 Finally, regarding his Thir-
teenth Amendment claim, Hook fails to provide any cita-
tion or basis for his assertion that the “punishment” of the
DNA collection constitutes enslavement. Merely setting
forth a constitutional amendment and asserting a viola-
tion, without further explication, does not present an
issue for review and results in a waiver of that issue.
Therefore, we deem Hook’s Ninth, Tenth, and Thirteenth
Amendment claims waived.
We turn now to Hook’s claims under Article 1, section 9,
clause 3 of the Constitution that the DNA Act violates the
Ex Post Facto Clause and constitutes a bill of attainder. In
determining whether a statute constitutes a retroactive law
in violation of the Ex Post Facto Clause, the court looks
to the purpose of the legislation. Gilbert v. Peters, 55 F.3d
237, 238 (7th Cir. 1995) (citing Trop v. Dulles, 356 U.S. 86, 96
(1958)).
If the intention of the legislature was to impose punish-
ment, that ends the inquiry. If, however, the intention
was to enact a regulatory scheme that is civil and
nonpunitive, we must further examine whether the
statutory scheme is so punitive either in purpose or
4
Hook asserts that his blood is outside the scope of the Com-
merce Clause because it regenerates every 120 days, and he has
not traveled out of state in over 120 days. Were we to accept
this argument, we might be prompted to recommend a blood
draw every four months, but for the fact that there is no indica-
tion that Hook also produces new DNA during regeneration,
perhaps thankfully so for Hook.
No. 06-1362 15
effect as to negate [the State’s] intention to deem it
civil.
Smith v. Doe, 538 U.S. 84, 92 (2003) (citations omitted).
The D.C. Circuit in Johnson v. Quander, 440 F.3d 489, 500-
01 (D.C. Cir. 2006), recently upheld the federal DNA Act
and the D.C. implementation statute against an Ex Post
Facto claim. The D.C. Circuit held that the anti-recidivism
and public safety provisions cited by the U.S. Supreme
Court in Smith were applicable to the DNA Act and
evinced that the DNA Act was punitive in neither purpose
nor effect. We agree. The purpose of the DNA Act, as
stated above, is to have a national registry of information
regarding those covered by the statute and to deter future
criminal conduct. Such administrative intent is not puni-
tive. As for the effect, it involves a blood test and retention
of information, neither of which is punitive. Gilbert, 55
F.3d at 238-39 (holding that a blood specimen statute
does not violate the Ex Post Facto Clause). In the event
that Hook had committed other crimes for which he
might be convicted as a result of his DNA being col-
lected, any punishment that he would receive would be
in relation to a new conviction, not his original conviction,
and thereby would not violate the Ex Post Facto Clause.
Furthermore, the DNA Act does not operate retroactively
to punish Hook for his original crime, but rather any
punishment that would ensue would be the result of new
conduct, i.e., Hook’s failure to comply with the DNA Act.
Accordingly, we affirm the district court’s rejection of
Hook’s assertion that the DNA Act violates the Ex Post
Facto Clause of the Constitution.
Hook also contends that the DNA Act constitutes a bill of
attainder which the Constitution prohibits Congress from
passing under Article I, section 9, clause 3. A law is a bill
16 No. 06-1362
of attainder if it “legislatively determines guilt and inflicts
punishment upon an identifiable individual without
provision of the protections of a judicial trial.” Nixon v.
Adm. of Gen. Serv., 433 U.S. 425, 468 (1977). The DNA
Act applies to those who have already been convicted of
a crime and by its terms does not determine guilt or
innocence. Further, as set forth above, the DNA Act does
not inflict punishment on those who are subject to it, as
its purpose is to establish a national database of identify-
ing information and to deter recidivism. The means by
which this is accomplished, a blood test, is minimally
intrusive and is not punitive. See Jones v. Murray, 962
F.2d 302, 306 (4th Cir. 1992). Therefore, we find that the
DNA Act does not constitute a bill of attainder.
In his final constitutional argument, Hook asserts that the
DNA Act violates the separation of powers doctrine. The
separation of the three branches of government is essential
to liberty, however that separation is not complete and
entire. Mistretta v. United States, 488 U.S. 361, 372 (1989).
While law enforcement is an executive function and a
probation officer serves a supervisory function of the
judicial branch, a probation officer’s collection of DNA
does not violate the separation of powers. The probation
officer neither analyzes the DNA nor conducts investiga-
tions in collecting DNA pursuant to the DNA Act. More-
over, such collection is analogous to a probation officer
in his supervisory capacity preventing a supervisee from
using drugs by means of drug testing. United States v.
Sczubelek, 402 F.3d 175, 188-89 (3d Cir. 2005). Further, as the
Third Circuit noted, there is no encroachment on the
executive’s ability to perform law enforcement functions
by virtue of the probation officer’s collection of DNA
because the probation officer has no role in how the
No. 06-1362 17
information is used once he submits the sample to the FBI.
Id. at 189 (citing Clinton v. Jones, 520 U.S. 681, 701 (1997)).
Therefore, we find no violation of the separation of powers
doctrine and affirm the district court’s denial of Hook’s
separation of powers claim.
III.
Because Hook has failed to assert a violation on the
part of the government regarding his term of supervised
release or a successful constitutional challenge of the
DNA Act, we AFFIRM the district court’s order denying
Hook’s request for termination of his term of supervised
release and ordering Hook to submit to DNA collection
pursuant to the DNA Act.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-13-06