United States v. Reynard

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 02-50476
Plaintiff-Appellee,
v.  D.C. No.
CR-98-02402-IEG
JOHN G. REYNARD,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of California
Irma E. Gonzalez, District Judge, Presiding
Submission Deferred April 9, 2003
Argued and Submitted December 14, 2004
Submission Vacated and Deferred January 4, 2006
Resubmitted July 12, 2006
Pasadena, California
Filed January 12, 2007
Before: Harry Pregerson, A. Wallace Tashima, and
Richard R. Clifton, Circuit Judges.
PREGERSON, J., delivered the opinion of the Court as to
Parts I through II(D), in which TASHIMA and CLIFTON,
JJ., joined. CLIFTON, J., delivered the opinion of the Court
as to Part II(E), in which TASHIMA, J., joined.
PREGERSON, J., filed a dissenting opinion as to Part II(E)
and dissents from the judgment.
385
UNITED STATES v. REYNARD 389
COUNSEL
Steven F. Hubachek, Federal Defenders of San Diego, Inc.,
San Diego, California, attorney for the defendant-appellant.
Mark R. Rehe, Assistant United States Attorney, San Diego,
California, attorney for the plaintiff-appellee.
OPINION
PREGERSON, Circuit Judge, with whom TASHIMA and
CLIFTON, Circuit Judges, join:
Appellant John G. Reynard seeks review of the district
court’s decision to revoke his supervised release. The district
court revoked Reynard’s supervised release because he
refused to proffer a blood sample, as required by the DNA
Analysis Backlog Elimination Act of 2000 (“DNA Act”),
Pub. L. No. 106-546, 114 Stat. 2726 (2000), (codified at 42
390 UNITED STATES v. REYNARD
U.S.C. § 14135a (2000)). Failure to provide a blood sample
constituted a violation of the terms of his supervised release.
Reynard appeals, contending that the DNA Act (1) violates
the Fourth Amendment, (2) is impermissibly retroactive, (3)
violates the Ex Post Facto Clause, (4) violates the Commerce
Clause, and (5) violates the Fifth Amendment. For the reasons
stated below, we affirm the district court’s revocation of Rey-
nard’s supervised release.
I. FACTUAL AND PROCEDURAL HISTORY
A. Factual Background
1. The Underlying Crime
On July 23, 1998, Reynard entered a San Diego Bank of
America branch and handed the teller a note demanding that
she empty the cash drawer and warning her that he possessed
a gun. The teller gave Reynard $2,325. Reynard took the
money and fled but turned himself in to a Federal Bureau of
Investigation (“FBI”) office a few days later. He admitted to
having committed the robbery. Reynard explained that he was
a habitual drug user and that his habit motivated the crime.
On August 5, 1998, a grand jury indicted Reynard for one
count of bank robbery, in violation of 18 U.S.C. § 2113(a).
Reynard pleaded guilty on October 5, 1998. On December 21,
1998, he was sentenced to thirty months in custody, followed
by three years of supervised release. The court ordered Rey-
nard to comply with several conditions of supervised release,
including that he (1) “[s]ubmit to a search of person, property,
residence, abode or vehicle at a reasonable time and in a rea-
sonable manner by the Probation Officer,” and (2) refrain
from “commit[ting] another federal, state, or local crime.”
Reynard’s supervised release commenced in November 2000.
UNITED STATES v. REYNARD 391
2. History and Passage of the DNA Act
In 1994, Congress passed the Violent Crime Control and
Law Enforcement Act, authorizing the FBI to establish a
national index of DNA samples from convicted federal
offenders. See Violent Crime Control and Law Enforcement
Act of 1994, Pub. L. No. 103-322, 108 Stat. 1796 (Sept. 13,
1994). The FBI exercised this authority by creating the Com-
bined DNA Index System (“CODIS”), a national DNA index.1
In addition, all fifty state legislatures enacted statutes requir-
ing convicted offenders to provide DNA samples for entry
into the CODIS system. See H.R. Rep. No. 106-900(I), at 8
(Sept. 26, 2000).
Between 1994 and 1996, however, the FBI lacked the
authority to include DNA data from federal offenders in the
CODIS databank. See id. In 1996, Congress, as part of the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), expressly provided the FBI with authority to
include in CODIS all DNA samples taken from federal
offenders. See AEDPA § 811(a)(2), Pub. L. No. 104-132, 110
Stat. 1214 (April 24, 1996) (providing that the Director of the
FBI “may expand the combined [CODIS] to include Federal
crimes and crimes committed in the District of Columbia”).
At least one member of Congress believed that the 1996 legis-
lation authorized the FBI to begin collecting DNA samples
from federal offenders immediately.2
1
CODIS is a national database used by qualified “law enforcement offi-
cials to link DNA evidence found at a crime scene with a suspect whose
DNA is already on file.” 146 Cong. Rec. S11645, S11647 (daily ed. Dec.
6, 2000) (statement of Sen. Kohl).
2
See 146 Cong. Rec. at S11647 (“We thought we already closed this
loophole through 1996 legislation which provides that the FBI ‘may
expand the database to include federal crimes . . .,’ but federal officials
claim more express authority is necessary. We are not so sure they’re
right, but there is no need to wait any longer.”) (statement of Sen. Kohl);
id. at S11646 (“[D]uring consideration of the Anti-Terrorism Act of 1996,
[Senator Dewine] proposed a provision under which federal convicted
offenders’ DNA would be included in CODIS. Unfortunately, the Depart-
ment of Justice never implemented this law, though currently all 50 states
collect DNA from convicted offenders.”) (statement of Sen. Kohl).
392 UNITED STATES v. REYNARD
At some point after the passage of AEDPA, the Department
of Justice (“DOJ”) reached the conclusion that the 1996 legis-
lation did not vest it with sufficient authority to collect DNA
samples from federal offenders. See H.R. Rep. No. 106-
900(I), at 9. In December 1998, the FBI requested that Con-
gress enact more explicit statutory authority to allow the FBI
to take DNA samples from federal offenders for inclusion in
CODIS. See id. On December 19, 2000, Congress passed the
DNA Act. The DNA Act requires the United States Probation
Office (“Probation Office”) to collect a DNA sample from
any probationer, parolee, or supervised releasee “who is, or
has been, convicted of a qualifying offense.” 42 U.S.C.
§ 14135a(a)(2). Bank robbery is a qualifying offense. See id.
§ 14135a(d)(1)(E). The DNA Act requires cooperation in the
collection of DNA as “a condition of . . . probation, parole,
or supervised release.” Id. § 14135a(a)(5). The DNA Act pun-
ishes with a misdemeanor anyone “who fails to cooperate in
the collection of” a DNA sample. Id. Once the sample is
taken, the Probation Office gives it to the FBI for analysis and
entry into CODIS. See 42 U.S.C. § 14135a(b).
3. Proceedings in District Court
On May 31, 2002, the Probation Office notified Reynard’s
counsel by letter that the DNA Act required Reynard to give
a blood sample. The letter stated that a probation officer
would soon contact Reynard to arrange for the taking of a
blood sample. The letter further noted that failure to cooperate
in the collection of the blood sample: (1) would be a Class A
misdemeanor; and (2) would constitute a violation of Rey-
nard’s mandatory conditions of supervision. Reynard met
with Probation Officer David Dilbeck on June 4, 2002. At the
meeting, Reynard received a one-page “DNA Collection Let-
ter of Instruction,” which again informed Reynard that com-
pliance with the DNA Act was mandatory and that his failure
to comply would constitute a Class A misdemeanor and a vio-
lation of a mandatory condition of his supervised release.
Reynard signed the letter, indicating that he “underst[ood] the
UNITED STATES v. REYNARD 393
requirements and agree[d] to abide by them.” On the same
day, Reynard received notice that he should arrive for a blood
draw at a Probation Office on June 10, 2002.
On June 10, 2002, Reynard appeared for his appointment.
However, after a discussion with his attorney, Reynard
refused to have his blood drawn. On June 13, 2002, Probation
Officer Dilbeck petitioned for an Order to Show Cause
(“OSC”) why Reynard’s supervised release should not be
revoked. Specifically, Officer Dilbeck alleged that Reynard
violated a mandatory condition of supervision when he “de-
clined 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 a motion to dismiss Proba-
tion Officer Dilbeck’s OSC petition. Reynard’s motion raised
eight issues:
(1) whether applying the DNA Act to Reynard
would be impermissibly retroactive under INS
v. St. Cyr, 533 U.S. 289 (2001);
(2) whether applying the DNA Act to Reynard
would be impermissibly retroactive under prin-
ciples 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 sam-
ple from Reynard falls outside the “special
needs exception” to the Fourth Amendment;
(6) whether the DNA Act violates separation of
powers principles;
394 UNITED STATES v. REYNARD
(7) whether the DNA Act violates the Commerce
Clause; and
(8) whether compelled extraction of blood samples
under the DNA Act violates the Fifth Amend-
ment privilege against self-incrimination.
On August 6, 2002, the district court conducted a hearing
on the motion. Twenty days later, the district court denied
Reynard’s motion in a thorough published opinion. See
United States v. Reynard, 220 F. Supp. 2d 1142 (2002). On
September 3, 2002, the district court conducted an evidentiary
hearing and found the allegations contained in the OSC to be
true. The court revoked Reynard’s supervised release, but
then reinstated it with the additional requirement that Reynard
give a blood sample. The final judgment and commitment
order was filed the same day.
B. Reynard’s Appeal
On September 4, 2002, Reynard filed a timely Notice of
Appeal. In his appeal, Reynard raises five issues. First, he
asserts that the DNA Act violates the Fourth Amendment
because it authorizes a search without requiring individual-
ized suspicion. Second, Reynard contends that application of
the DNA Act is impermissibly retroactive. Third, Reynard
argues that this retroactive application of the DNA Act vio-
lates the Constitution’s Ex Post Facto Clause. Fourth, Rey-
nard maintains that the DNA Act is unconstitutional because
Congress lacked power under the Commerce Clause to enact
it. Finally, Reynard suggests that the Act violates his Fifth
Amendment rights by forcing him to incriminate himself by
producing evidence.
UNITED STATES v. REYNARD 395
II. DISCUSSION
A. The DNA Act Does Not Violate the Fourth
Amendment
Reynard contends that the DNA Act violates the Fourth
Amendment because it authorizes a search without requiring
individualized suspicion. Analysis of this issue is foreclosed
by United States v. Hugs, 384 F.3d 762, 769 (9th Cir. 2004)
(citing United States v. Kincade, 379 F.3d 813 (9th Cir. 2004)
(en banc), cert. denied, 544 U.S. 924 (2005)), which held that
the DNA Act does not violate the Fourth Amendment.
B. The DNA Act Does Not Have an Impermissibly
Retroactive Effect on Reynard
Reynard contends that the DNA Act is impermissibly retroac-
tive.3 The district court disagreed, finding that the “retrospec-
tive application of the DNA Act is not arbitrary and irrational,
but is consistent with Congress’s intent in passing the law —
i.e., to include DNA samples from federal offenders in the
CODIS databank, with all possible speed.” See Reynard, 220
F. Supp. 2d at 1157. For the reasons set forth below, we
affirm this holding.
1. Standard of Review
We review de novo whether a statute may be applied retro-
actively. See Scott v. Boos, 215 F.3d 949, 942-43 (9th Cir.
2000).
3
Courts use interchangeably the terms “retroactive” and “retrospective.”
See SEC v. Fehn, 97 F.3d 1276, 1285 (9th Cir. 1996) (recognizing that the
Supreme Court uses the terms “retroactive” and “retrospective” inter-
changeably); see also Black’s Law Dictionary (8th ed. 2004) (defining
“retrospective” as “see retroactive”). For convenience, we use the term
“retroactive,” unless that would require changing the language of a quota-
tion.
396 UNITED STATES v. REYNARD
2. Governing Legal Principles - the St. Cyr/
Landgraf Test
[1] Courts apply a two-step test to determine whether legis-
lation is impermissibly retroactive. This test is set forth in INS
v. St. Cyr, 533 U.S. 289, 316 (2001), and Landgraf v. USI
Film Products, 511 U.S. 244, 280 (1994). The first step
requires that we “ascertain whether Congress has directed
with the requisite clarity that the law be applied retrospective-
ly.” St. Cyr, 533 U.S. at 316. The statutory language must be
“so clear that it [can] sustain only one interpretation.” Id. at
317. If Congress’s intent is sufficiently clear from the text and
legislative history, then the statute may be applied retroac-
tively, and the court need not address the second step. See id.
at 316 (“[I]t is beyond dispute that . . . Congress has the
power to enact laws with retrospective effect” where Con-
gress clearly intends to do so).
[2] Step two must be employed where Congress’s retroac-
tive intent is not clear. We must then determine whether
application of the act violates the Due Process Clause and
consequently has a “retroactive effect.” Landgraf, 511 U.S. at
280. “If the statute would operate retroactively, our traditional
presumption teaches that it does not govern absent clear con-
gressional intent favoring such a result.” Id.
3. Application of the St. Cyr/Landgraf Test
a. Step One
The government points to four sources to support its con-
tention that Congress intended unambiguously for the DNA
Act to apply to offenders who committed qualifying offenses
prior to the Act’s passage. First, the Act states that the Proba-
tion Office “shall collect a DNA sample from each [individual
on release, parole, or probation] who is, or has been, con-
victed of a qualifying Federal offense . . . .” Pub. L. No. 106-
546 (codified at 42 U.S.C. § 14135a(a)(2)). The government
UNITED STATES v. REYNARD 397
contends that because a portion of the language is cast in the
past tense, it covers individuals, like Reynard, who are now
on supervised release, but who “ha[ve] been” convicted of a
qualifying offense.4 Second, the Act also provides that a DNA
sample will be collected “from each individual in the custody
of the Bureau of Prisons who is, or has been, convicted of a
qualifying Federal offense.” Id. § 14135a(a)(1) (emphasis
added). Third, the government contends that a review of the
DNA Act’s legislative history emphasizes that the Act was
intended to apply retroactively.5
Finally, as noted by the government, the Congressional
Budget Office’s (“CBO”) cost estimate of the DNA Act
observed that “there are roughly 6,000 such persons now and
that there would be another 2,000 persons incarcerated in fis-
cal year 2001 and in each year thereafter.” The government
contends that the fact that the CBO included current inmates
in its calculation is further evidence that Congress intended
retroactive application of the DNA Act.
[3] Although the statutory provisions and legislative history
discussed above suggest that Congress may have intended the
4
The government also asserts that the fact that this subsection applies
to “parolees” necessarily demonstrates a retroactive intent because federal
parole was abolished over fifteen years before in the Sentencing Reform
Act of 1984.
5
Congress noted that the Act would serve to fill a significant gap in
CODIS by including all qualifying offenders who have committed a quali-
fying offense at any time in the past. See 146 Cong. Rec. H8572-01,
H8576 (daily ed. Oct. 2, 2000) (“One glaring omission in the law that
authorized CODIS is that it did not authorize the taking of DNA samples
from persons convicted of Federal offenses . . . .” ) (statement of Rep.
Canady); 146 Cong. Rec. S11645-02, S11647 (“[F]or some inexplicable
reason, we do not collect samples from Federal . . . offenders. We thought
we already closed this loophole through 1996 legislation . . . but Federal
officials claim more express authority is necessary.”) (statement by Sen.
Kohl); H.R. Rep. 106-900(I), at 8 (“[The DNA Act] addresses . . . the
absence of legal authority for DNA samples to be collected from persons
convicted of Federal crimes . . . .”).
398 UNITED STATES v. REYNARD
DNA Act to apply retroactively, the district court correctly
determined that Congress failed to meet the high standard of
clear and unambiguous expression of intent. See Reynard, 220
F. Supp. 2d at 1149 (holding that “the text and legislative his-
tory of the DNA Act are not so clear that [they] could sustain
only one interpretation” (internal quotations and citations
omitted)). For example, the plain language of the DNA Act
does not clarify the extent to which the Act applies. While the
DNA Act (42 U.S.C. §§ 14135a(a)(1) and (2)) expressly
apply to a person who “has been” convicted of a qualifying
offense, this language does not demonstrate that Congress
“affirmatively considered the potential unfairness of retroac-
tive application and determined that it is an acceptable price
to pay for the countervailing benefits.” Landgraf, 511 U.S. at
272-73.
In addition, although Congress may have passed the DNA
Act to fill “gaps” in CODIS, it does not necessarily follow
that the Act was intended to apply retroactively. In fact, as the
district court reasonably noted, “congressional silence on the
retroactivity or non-retroactivity of the DNA Act is significant
in itself.” Reynard, 220 F. Supp. 2d at 1150; see also Castro-
Cortez v. Ashcroft, 239 F.3d 1037, 1052 (9th Cir. 2001)
(“Congressional silence is instructive”), abrogated on other
grounds by Fernandez-Vargas v. Gonzales, 126 S. Ct. 2422
(2006). Finally, although the CBO report certainly provides
support for construing the DNA Act to be retroactive, it can
hardly be deemed conclusive evidence of Congress’s intent —
particularly, in light of the absence of clear corroborating evi-
dence in the legislative history.
[4] Therefore, although the DNA Act’s text and legislative
history suggest that it was intended to apply retroactively, the
existence of plausible alternatives preclude us from finding
the clear and unambiguous intent necessary to satisfy this first
St. Cyr/Landgraf step. See United States v. Nordic Vill., Inc.,
503 U.S. 30, 34-37 (1992) (the existence of any “plausible”
alternative interpretations of statutory language necessarily
UNITED STATES v. REYNARD 399
precludes that language from qualifying as an “unambiguous”
expression). Accordingly, we must proceed to the second
step.
b. Step Two
[5] We must next determine whether application of the stat-
ute would have a retroactive effect within the meaning of
Landgraf and consequently violate Reynard’s due process
rights. See Jimenez-Angeles v. Ashcroft, 291 F.3d 594, 601
(9th Cir. 2002) (citing Landgraf, 511 U.S. at 280). A retroac-
tive effect is one that (1) impairs rights Reynard possessed
when he acted, (2) increases Reynard’s liability for past con-
duct, or (3) imposes new duties with respect to transactions
already completed. See Landgraf, 511 U.S. at 280. A statute
that has such a retroactive effect cannot be applied to the liti-
gant before the court. See United States v. Hovsepian, 359
F.3d 1144, 1156 (9th Cir. 2004); Jimenez-Angeles, 291 F.3d
at 601.
[6] Addressing the third Landgraf category, the district
court recognized that the DNA Act imposes a “duty” on Rey-
nard to submit to the physical intrusion of blood extraction
and also creates a “disability” by incorporating his DNA
information in a nationwide database. Reynard, 220 F. Supp.
2d at 1153. However, the district court reasoned that this
“duty” was not new for purposes of its retroactivity analysis
because Reynard was warned at his supervised release hearing
that he was subject to a broad duty to “[s]ubmit to a search
of person, property, residence, abode or vehicle at a reason-
able time and in a reasonable manner by the Probation Offi-
cer.” Id. Although Reynard’s duty to submit to a search may
have not been clearly defined at the time to include blood
extraction, he was aware that the terms of supervised release
could be modified in the future. See 18 U.S.C. § 3583(e)(2)
(authorizing a court to “modify, reduce, or enlarge the condi-
tions of supervised release at any time prior to the expiration
or termination of the terms of supervised release”).
400 UNITED STATES v. REYNARD
Further, any “disability” created by operation of the DNA
Act is minimal and does not upset any reliance interest that
Reynard may have had. As the district court noted, DNA sam-
ples in CODIS are composed of genetic markers (known as
“junk sites”) which “are purposely selected because they are
not associated with any known genetic trait.” Reynard, 220 F.
Supp. 2d at 1152 (citing H.R. Rep. 106-900(I), at 26).
[7] Moreover, the legislative history of the DNA Act sug-
gests that federal defendants in October of 1998, when Rey-
nard pleaded guilty, were not acutely aware of any non-
obligation to provide a DNA sample because a federal law
already existed by which Congress attempted to create such
an obligation.6 Accordingly, the Act’s legislative history
undermines the proposition that, in 1998, federal offenders
pleaded guilty with an expectation that they would not have
to contribute DNA to CODIS because, at that time, federal
law expressly authorized the FBI to expand CODIS by includ-
ing DNA samples from all such federal offenders. Accord-
ingly, Reynard did not have a settled expectation that he
would not have to submit to DNA extraction.
Reynard’s primary challenge is to the constitutionality of
such a search (the constitutionality of which was upheld in
Kincade, 379 F.3d 813, and reaffirmed in Hugs, 384 F.3d at
769), but this argument does not defeat the government’s con-
6
In October 1998, DOJ believed that AEDPA section 811(a)(2) contin-
ued to authorize the FBI to include DNA samples from all federal offend-
ers in the CODIS index. See Reynard, 220 F. Supp. 2d at 1155. Two
months later, in December 1998, the FBI requested Congress to enact
more explicit statutory authority to allow the FBI to take DNA samples
from federal offenders for inclusion into CODIS. See H.R. Rep. No. 106-
900(I). Thus, in October 1998, when Reynard pleaded guilty to robbery,
federal law appeared to grant the FBI authority to collect a DNA sample
from Reynard, even though DOJ believed that Congress had not conferred
sufficient authority to do so.
UNITED STATES v. REYNARD 401
tention that the DNA extraction falls within the scope of Rey-
nard’s 1998 duty to submit to a search.7
[8] Thus, in analyzing the second St. Cyr/Landgraf step, the
district court correctly concluded that the DNA Act did not
have an impermissibly retroactive effect on Reynard. See Rey-
nard, 220 F. Supp. 2d at 1157.
C. The DNA Act Does Not Violate the Ex Post Facto
Clause
Reynard contends that application of the DNA Act to him
violates the Ex Post Facto Clause. For the reasons set forth
below, we reject this claim.
7
Reynard makes two additional arguments to support his contention that
the DNA Act is impermissibly retroactive. First, he contends that Hughes
Aircraft Co. v. United States ex rel. Schumer, 520 U.S. 939 (1997), com-
pels finding a different result. In Hughes Aircraft, the Court noted that the
creation of a new cause of action against a party could yield an impermiss-
ibly retroactive effect. See id. at 947. Reynard claims that his case is anal-
ogous to Hughes Aircraft because failure to comply with DNA Act
constitutes a new misdemeanor offense and a new basis on which to vio-
late a supervisory sentence. Specifically, Reynard questions the district
court’s focus on reliance interests because he feels that the Supreme Court
did not consider them in Hughes Aircraft. However, Hughes Aircraft did
not overrule St. Cyr or Landgraf, which clearly state that reliance is an
important factor in the retroactivity analysis. See St. Cyr, 533 U.S. at 325;
Landgraf, 511 U.S. at 270.
Second, Reynard argues that the district failed to undertake the “com-
monsense” inquiry required by the second St. Cyr/Landgraf step. See St.
Cyr, 533 U.S. at 321 (“The inquiry into whether a statute operates retroac-
tively demands a commonsense, functional judgment about whether the
new provision attaches new legal consequences to events complete before
its enactment.” (internal quotations and citations omitted)). Because it
thoroughly discussed Reynard’s potential reliance and settled expecta-
tions, see Reynard, 220 F. Supp. 2d at 1151-57, the district court did not
fail to conduct a “commonsense” inquiry.
402 UNITED STATES v. REYNARD
1. Standard of Review
A district court’s ruling that the Ex Post Facto Clause was
not violated is reviewed de novo. See Hunter v. Ayers, 336
F.3d 1007, 1011 (9th Cir. 2003).
2. Governing Legal Principles
[9] The Constitution’s Ex Post Facto Clause forbids the
passage and application of laws that “retroactively alter the
definition of crimes or increase the punishment for criminal
acts.” Calif. Dep’t of Corr. v. Morales, 514 U.S. 499, 504
(1995) (quoting Collins v. Youngblood, 497 U.S. 37, 41
(1990)). Specifically, the Clause forbids:
1st. Every law that makes an action done before the
passing of the law, and which was innocent when
done, criminal; and punishes such action. 2d. Every
law that aggravates a crime, or makes it greater than
it was, when committed. 3d. Every law that changes
the punishment, and inflicts a greater punishment,
than the law annexed to the crime, when committed.
4th. Every law that alters the legal rules of evidence,
and receives less, or different, testimony, than the
law required at the time of the commission of the
offense, in order to convict the offender.
Rogers v. Tennessee, 532 U.S. 451, 456 (2001) (quoting Cal-
der v. Bull, 3 Dall. 386, 390, 1 L. Ed. 648 (1798) (emphasis
omitted)). Reynard contends (1) that the DNA Act unlawfully
establishes a crime based on an action committed before the
DNA Act was enacted, and (2) that the DNA Act changes the
punishment or inflicts greater punishment for refusing to sub-
mit a blood sample than the law allowed when Reynard was
convicted.
UNITED STATES v. REYNARD 403
3. The DNA Act Does Not Criminalize Conduct That
Was Innocent When Committed
The DNA Act establishes a misdemeanor offense for any-
one “who fails to cooperate in the collection of” a DNA sam-
ple. Pub. L. No. 106-546 (codified at 42 U.S.C.
§ 14135a(a)(2)). Reynard claims that the DNA Act establishes
a crime based solely on an act (or omission) committed before
the DNA Act’s enactment.8 In response, the government
asserts that the DNA Act does not criminalize any act (or
omission) that Reynard committed prior to passage of the Act.
Rather, Reynard’s refusal to give blood occurred over eigh-
teen months after Congress passed the DNA Act. Thus, the
government argues, the DNA Act criminalizes only new con-
duct — Reynard’s June 10, 2002 refusal to comply with the
DNA Act, which occurred more than eighteen months after
the Act’s enactment — not Reynard’s conduct predating the
Act.
[10] The DNA Act allows the Probation Office to revoke
Reynard’s supervised release based on Reynard’s June 10,
2002 refusal to submit a blood sample. The Act does not
criminalize an act (or omission) that occurred prior to enact-
8
Reynard concedes the existence of cases stating that it is permissible
to prohibit an individual from engaging in specific conduct based on a
prior conviction sustained before the criminal statute’s enactment. See
United States v. Mitchell, 209 F.3d 319, 322-23 (4th Cir. 2000). Reynard
distinguishes such cases by asserting that the DNA Act does not criminal-
ize conduct but instead criminalizes an omission that was innocent prior
to passage of the DNA Act — namely, the failure to contribute blood to
the CODIS databank.
Reynard’s assertion that he “has not engaged in conduct after the enact-
ment of the DNA Act but rather omitted to cooperate” is unpersuasive.
Had Reynard not been informed of the DNA Act and the consequences of
failing to comply, it would seem unreasonable to find Reynard liable for
failing to give a DNA sample. However, Reynard was fully aware of the
consequences when he refused to have his blood drawn. His refusal to
submit to the blood extraction was clearly an affirmative action, not an
omission, as anticipated by the DNA Act.
404 UNITED STATES v. REYNARD
ment of the DNA Act. Thus, the district court properly con-
cluded that the DNA Act does not criminalize Reynard’s pre-
DNA Act actions. See Reynard, 220 F. Supp. 2d at 1160
(“Thus, the DNA Act does not criminalize an act (or omis-
sion) that occurred prior to enactment of the DNA Act.
Instead, the DNA Act criminalizes Reynard’s June 10, 2002
failure to comply with the previously enacted DNA Act.”).
4. The DNA Act Does Not Change or Inflict Greater
Punishment than the Law Allowed at the Time of
Reynard’s Conviction
Reynard next argues that application of the DNA Act to
him violates the Ex Post Facto Clause because it increases his
punishment for his 1998 conviction. Specifically, he asserts
that “the DNA Act changes punishment or inflicts greater
punishment than the law allowed when Reynard sustained his
conviction.” Reynard argues that the DNA Act imposes
greater punishment on him because the Act exposes him to
revocation of supervised release if he declines to allow the
probation office to draw blood and that he did not face this
potential for revocation prior to passage of the DNA Act. In
response, the government asserts that the DNA Act does not
increase Reynard’s “punishment” for his 1998 conviction.
According to Smith v. Doe, 538 U.S. 84 (2003), we employ
an “intent-effect” analysis to determine whether the DNA Act
increases Reynard’s punishment for his 1998 conviction.9 See
9
The parties dispute the applicable test for resolving this inquiry. Rey-
nard asserts that United States v. Paskow, 11 F.3d 873 (9th Cir. 1993), is
controlling authority, and that, under Paskow, his supervised release can-
not be revoked on the basis of a DNA Act violation because the DNA Act
was passed after Reynard’s underlying conviction. Paskow involved an
amendment to the supervised release statute which provided a mandatory
jail term for persons who violated release by possessing drugs. See id. at
876. Prior to the amendment, violation carried no mandatory minimum
sentence. See id. at 883 (finding that the ex post facto clause is violated
when an amendment to the supervised release statute disadvantages a
UNITED STATES v. REYNARD 405
id. at 92. First, the we must “ascertain whether the legislature
meant the statute to establish ‘civil’ proceedings.” Id. (quoting
Kansas v. Hendricks, 521 U.S. 346, 361 (1997)). If the inten-
tion of the legislature was to impose punishment, the inquiry
ends and we defer to legislative intent. See Hendricks, 521
U.S. at 361. However, if the Legislature’s intent was to enact
a regulatory scheme that is civil and non-punitive, we must
further examine whether the statutory scheme is “so punitive
either in purpose or effect as to negate [the State’s] intention
to deem it civil.” Id. (internal quotations omitted). Because a
federal court will “ordinarily defer to the legislature’s stated
intent,” Hendricks, 521 U.S. at 361, “only the clearest proof
will suffice to override legislative intent and transform what
has been denominated a civil remedy into a criminal penalty,”
Hudson v. United States, 522 U.S. 93, 100 (1997) (internal
quotations omitted).
Whether a statutory scheme is civil or criminal “is first of
all a question of statutory construction.” Hendricks, 521 U.S.
at 361. We must consider the statute’s text and structure to
determine the legislative objective. See Flemming v. Nestor,
363 U.S. 603, 617 (1960). A conclusion that the legislature
intended to punish would satisfy an Ex Post Facto challenge
without further inquiry into its effects, so considerable defer-
ence must be accorded to the legislature’s intent. See Smith,
538 U.S. at 92-93.
defendant who committed the underlying offense before the amendment
became effective).
The government argues that Paskow does not control this case because
the DNA Act does not increase penalties that defendants will face upon
revocation of supervised release. Rather, the government argues, the DNA
Act merely provides another way by which supervised release may be
revoked. The government contends that we should be guided by an
“intent-effect” analysis, as set forth in Russell v. Gregoire, 124 F.3d 1079
(9th Cir. 1997). However, on March 5, 2003, six months after this appeal
was filed, the Supreme Court decided Smith and clarified the test to be
applied to claims of altered or increased punishment. See Smith, 538 U.S.
at 92.
406 UNITED STATES v. REYNARD
a. No Punitive Intent
[11] A review of the legislative history of the DNA Act
reveals that it was not enacted for punitive reasons. Rather, its
goal was to “assist[ ] law enforcement by matching DNA evi-
dence with possible suspects . . . in unsolved violent crimes.”
146 Cong. Rec. H8572-01, H8577 (statement of Rep. Gil-
man). The Act would “save lives by allowing apprehension
and detention of dangerous individuals while eliminating the
prospects that innocent individuals would be wrongly held for
crimes that they did not commit.” 146 Cong. Rec. H8572-01,
H8576 (statement of Rep. Scott). Accordingly, the legislative
history suggests that the district court was correct in conclud-
ing that the DNA Act was not intended to be punitive. See
Reynard, 220 F. Supp. 2d at 1151.
b. No Punitive Effect
The Supreme Court has offered seven factors to guide our
“effect” analysis:
A. Whether the sanction involves an affirmative
disability or restraint;
B. Whether it has historically been regarded as a
punishment;
C. Whether it comes into play only on a finding of
scienter;
D. Whether its operation will promote the tradi-
tional aims of punishment — retribution and
deterrence;
E. Whether the behavior to which it applies is
already a crime;
F. Whether an alternative purpose to which it may
rationally be connected is assignable for it; and
UNITED STATES v. REYNARD 407
G. Whether it appears excessive in relation to the
alternative purpose assigned are all relevant to
the inquiry, and may often point in differing
directions.
Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963).
The district court found that the DNA Act is not “so punitive”
in effect as to outweigh Congress’s non-punitive intent. See
Reynard, 220 F. Supp. 2d at 1162. After analyzing the facts
of this case in light of the seven Mendoza-Martinez factors,
we reach the same conclusion.
[12] With respect to the first Mendoza-Martinez factor, the
DNA Act does confer an affirmative disability. However, as
discussed earlier, that disability is minimal. See Smith, 538
U.S. at 86; Skinner v. Railway Labor Exec. Ass’n, 489 U.S.
602, 625 (1989). Second, neither blood nor DNA collection
have been historically viewed as punishment. See Smith, 538
U.S. at 86 (“[T]he regulatory scheme, in its necessary opera-
tion, has not been regarded in the Nation’s history and tradi-
tions as a punishment.”). Next, the penalty provisions of the
DNA Act do not require a specific showing of scienter, as
required by the third Mendoza-Martinez factor. See Pub. L.
No. 106-546 (codified at 42 U.S.C. § 14135a) (assigning a
misdemeanor to anyone who “fails to cooperate in the collec-
tion” of a DNA sample).
[13] The fourth factor requires analysis whether the DNA
Act promotes the goals of punishment. Legislative history
suggests that Congress acknowledged that the DNA Act
might help curb recidivism rates. See 146 Cong. Rec. S11645-
02, S11646 (“Statistics show that many of these violent felons
will repeat their crimes once they are back in society. Since
the Federal Government does not collect DNA from these fel-
ons, however, the ability of law enforcement to rapidly iden-
tify likely suspects is slowed.”) (statement of Sen. Dewine);
see also Kincade, 379 F.3d at 839. However, not every law
with a deterrent effect is punitive. See United States v. Jack-
408 UNITED STATES v. REYNARD
son, 189 F.3d 820, 824 (9th Cir. 1999) (noting that “deter-
rence may also serve non-punitive goals” (internal citations
omitted)). Further, the DNA does not have a retribution com-
ponent because it does not “label[ ] the offender as more cul-
pable than before,” Russell, 124 F.3d at 1091, and “is not
geared toward making [Reynard] understand and regret the
severity of his crimes,” Jackson, 189 F.3d at 824.
[14] Addressing the fifth factor, while the DNA Act does
criminalize an individual’s failure to submit to a blood draw,
such non-compliance is punished as a separate offense, which
diminishes potential Ex Post Facto problems. See Russell, 124
F.3d at 1088-89 (emphasizing fact that Ex Post Facto Clause
is concerned with increased punishment for prior, not sepa-
rate, offenses); supra Part II(C)(3). Because Reynard con-
cedes that the DNA Act serves a non-punitive function, he
necessarily concedes that there is a rational alternative pur-
pose for the Act, as required by the sixth factor. The district
court did not address the seventh factor in its analysis. Con-
sidering this factor in Smith, the Supreme Court noted that
“[t]he question here is not whether the legislature has made
the best choice possible to address the problem it seeks to
remedy, but whether the regulatory means chosen are reason-
able in light of the nonpunitive objective.” Smith, 538 U.S. at
89. Because the DNA Act is a reasonable means by which
Congress can achieve and regulate a non-punitive goal, the
Act meets this standard.
[15] After weighing the many factors, we find that the dis-
trict court was correct in concluding that the DNA Act does
not have a “punitive” effect sufficient to outweigh Congress’s
non-punitive intent. See Reynard, 220 F. Supp. 2d at 1162. In
light of the Mendoza-Martinez factors, the DNA Act is not
“so punitive” in effect as to outweigh Congress’s non-punitive
intent. Accordingly, the DNA Act does not violate the Ex Post
Facto Clause.
UNITED STATES v. REYNARD 409
D. The Compelled Extraction of Blood Under the DNA
Act Does Not Violate Reynard’s Fifth Amendment
Right Against Self-Incrimination
[16] Reynard contends that the extraction of DNA informa-
tion violates his Fifth Amendment right not to be subject to
the compelled production of any incriminating evidence. To
support this contention, Reynard cites to a concurring opinion
in United States v. Hubbell, 530 U.S. 27 (2000), in which Jus-
tice Thomas states that “the Fifth Amendment privilege pro-
tects against the compelled production not just of
incriminating testimony, but of any incriminating evidence.”
Id. at 49 (Thomas, J., concurring). However, Justice Thomas’s
concurring comments are not binding on us, and as the gov-
ernment is quick to point out, blood samples and DNA pro-
files are physical, rather than testimonial. See Schmerber v.
California, 384 U.S. 757, 765 (1966) (holding that analysis of
blood sample, taken without defendant’s consent, did not vio-
late defendant’s Fifth Amendment rights); United States v.
Velarde-Gomez, 269 F.3d 1023, 1030 (9th Cir. 2001) (en
banc) (recognizing that blood characteristics are “physical
evidence” that do “not engender Fifth Amendment protec-
tion”).
[17] Therefore, the extraction of Reynard’s DNA does not
violate his Fifth Amendment rights.
CLIFTON, Circuit Judge, with whom TASHIMA, Circuit
Judge, joins:
E. The DNA Act Does Not Exceed the Commerce Clause
Power of the Federal Government
Reynard asserts that the DNA Act is unconstitutional
because the federal government lacks the authority under the
Commerce Clause to require a federal offender to provide a
DNA sample as a condition of his supervised release. Rey-
nard’s argument lacks merit. The federal government’s
410 UNITED STATES v. REYNARD
authority to regulate the conditions of a federal offender’s
supervised release arises when the individual commits a fed-
eral crime. The federal government is not required to demon-
strate that it has independent authority to impose each
individual condition of supervised release upon an offender.
Nonetheless, in this instance, the individual condition of
supervised release at issue, standing alone, is a valid exercise
of the federal government’s authority pursuant to its Com-
merce Clause power. Further, such an exercise of Congress’s
Commerce Clause power does not offend principles of feder-
alism.
1. The Federal Government’s Authority to Dictate the
Conditions of Reynard’s Supervised Release Arose
When He Was Convicted of Committing a Federal
Crime
[18] Contrary to Reynard’s arguments, we are not required
to analyze whether Congress has the authority to impose upon
him each individual condition of his supervised release. The
federal government’s authority to dictate all of the conditions
of his supervised release arose when he committed a crime
that Congress had the authority to identify as a federal
offense. Here, Reynard pleaded guilty to violating 18 U.S.C.
§ 2113(a), (f), robbing a bank insured by the Federal Deposit
Insurance Corporation. It is indisputable that Congress has the
authority to classify this crime as a federal offense. See
United States v. Harris, 108 F.3d 1107, 1109 (9th Cir. 1997)
(explaining that the federal bank robbery statute is a permissi-
ble exercise of Congress’s Commerce Clause power). The
DNA Act requires DNA extraction as a condition of super-
vised release following conviction for qualifying offenses
under 42 U.S.C. § 14135a. To the extent that these qualifying
offenses are regulable by Congress under its Commerce
Clause power as well, the DNA Act is a proper exercise of its
Commerce Clause authority. See United States v. Plotts, 347
F.3d 873, 879 (10th Cir. 2003) (holding that the DNA Act,
whether construed as a civil sanction for committing a quali-
UNITED STATES v. REYNARD 411
fying federal offense or as a law enforcement tool, is “neces-
sary and proper to the exercise of the Commerce Clause.”).
[19] Since the federal government has the authority, under
the Commerce Clause, to denominate Reynard’s conduct a
federal offense, it has the power to incarcerate him and
impose upon him the terms of his supervised release, includ-
ing requiring him to submit a DNA sample under the DNA
Act. There is no requirement that each individual term of his
supervised release be independently authorized under the
Commerce Clause.
2. The Federal Government Has the Authority to Enact
the DNA Act under the Commerce Clause
Nonetheless, in this instance, the requirement that Reynard
submit a DNA sample under the DNA Act, standing alone, is
a valid exercise of the federal government’s Commerce
Clause power. We start with first principles. The Constitution
creates a federal government of enumerated powers; among
those is the power “[t]o regulate Commerce with foreign
Nations, and among the several States, and with the Indian
Tribes.” U.S. Const., Art. I, § 8, cl. 3. The Supreme Court has
identified three broad categories of activity that Congress may
regulate under the Commerce Clause: (1) the channels of
interstate commerce, (2) the instrumentalities of interstate
commerce and the persons or things in interstate commerce,
and (3) intrastate activities that substantially affect interstate
commerce. See United States v. Lopez, 514 U.S. 549, 558-59
(1995).
[20] The first and third categories of commerce are inappli-
cable to Reynard’s case. The extraction of DNA and the sub-
sequent inclusion of DNA data in the CODIS system do not
affect the “channels of interstate commerce,” such as naviga-
ble waterways, railroads, and highways. See, e.g., Oklahoma
v. Guy F. Atkinson, Co., 313 U.S. 508, 518 (1941). Neither
are they intrastate activities of an economic nature that “sub-
412 UNITED STATES v. REYNARD
stantially affect” interstate commerce. See, e.g., Gonzales v.
Raich, 545 U.S. 1, 25 (2005). Hence, the extraction of DNA
samples for inclusion in CODIS falls under the second Lopez
category, as a “thing in commerce.”
A DNA sample conveys information about a convicted fed-
eral offender’s identity. The Court long ago concluded that
non commercial activities involving nothing “more tangible
than the flow of . . . information can constitute commerce.”
United States v. South-Eastern Underwriters Ass’n, 322 U.S.
533, 549-50 (1944), superseded by statute on other grounds.
In more recent years, the Court has also determined that per-
sonal, identifying information contained in DMV records is a
“ ‘thin[g] in interstate commerce,’ and that the sale or release
of that information in interstate commerce is therefore a
proper subject of congressional regulation.” Reno v. Condon,
528 U.S. 141, 143 (2000) (quoting Lopez, 514 U.S. at 558-59)
(emphasis added). Thus the Court made clear that Congress
has the authority, under the Commerce Clause, to regulate the
interstate release of personal information, even when this
release does not involve a sale of the information and is thus
non-economic in nature. Id. Based on the Court’s decision in
Condon, it appears clear that Congress can regulate the collec-
tion and release of DNA samples from federal offenders,
because this personal, identifying information constitutes a
thing in interstate commerce.10
10
A difference does exist between the type of transaction that was being
regulated in Condon and the type of transaction at issue here. In Condon,
the individual actor that placed the information into the stream of inter-
state commerce was a state; whereas here, the entity that has created the
regulation — the federal government — is the entity responsible for the
release of the information. The parties have not raised the question of
whether the federal government can regulate something that it, and
nobody else, has placed into the stream of commerce, and we need not
decide it here. As already explained, the federal government’s authority to
act in this instance arose when Reynard committed a federal crime, and
thus each individual condition of his supervised release need not be inde-
pendently justifiable under one of the federal government’s enumerated
powers.
UNITED STATES v. REYNARD 413
3. Congress’s Exercise of its Authority under the
Commerce Clause Does Not Offend Principles of
Federalism
[21] Furthermore, Congress’s exercise of its Commerce
Clause power in this situation does not offend principles of
federalism. The Lopez Court warned against extending the
scope of the Commerce Clause power to “effectually obliter-
ate the distinction between what is national and what is local
and create a completely centralized government.” Lopez, 514
U.S. at 558. The DNA Act does not intrude upon areas of tra-
ditional state or local authority. The Act regulates only federal
offenders. Moreover, it addresses a problem that the states are
not capable of addressing on their own. In passing this legisla-
tion, Congress acknowledged that all fifty states had enacted
legislation that required individuals convicted of state
offenses to provide DNA samples for analysis and entry into
the CODIS system. See H.R. Rep. 106-900 (I), at *8. Con-
gress noted, however, that there was, at that time, no legal
authority that allowed DNA samples to be collected from
individuals convicted of federal crimes. See id. Since states do
not have the power to authorize the collection of DNA sam-
ples from those convicted of federal crimes, this problem was
one that the states were not capable of addressing on their
own.
[22] Courts have consistently recognized that federal stat-
utes enacted to help states address problems that defy a local
solution constitute an appropriate exercise of Congress’s
Commerce Clause power, because this power includes the
authority “to govern affairs which the individual states, with
their limited territorial jurisdictions, are not fully capable of
governing.” See, e.g., Black, 125 F.3d at 459 (quoting South
Eastern Underwriters Ass’n, 322 at 552) (internal quotations
omitted); United States v. Sage, 92 F.3d 101, 105 (2d Cir.
1996); United States v. Faasse, 265 F.3d 475, 488-489 (6th
Cir. 2001). Consequently, we conclude that the DNA Act con-
414 UNITED STATES v. REYNARD
stitutes a valid exercise of Congress’s power pursuant to the
Commerce Clause.
CONCLUSION
Because Reynard’s challenges to the revocation of his
supervised release are unavailing, we AFFIRM.
PREGERSON, Circuit Judge, dissenting:
I believe that Congress lacked the authority to enact the
DNA Act under the Commerce Clause. Accordingly, I must
dissent from Part E of the court’s opinion and from the court’s
judgment.
Every law enacted by Congress must be based on a power
enumerated in the Constitution. See Marbury v. Madison, 5
U.S. 137 (1803). The Constitution gives Congress power “[t]o
regulate Commerce . . . among the several States.” U.S.
Const. art. I, § 8. Congress enacted the DNA Act expressly
under its commerce power. See H.R. Rep. No. 106-900(I), at
16. The modern interpretation of Congress’s regulatory
authority under the Commerce Clause is expansive but not
without limits. See United States v. Lopez, 514 U.S. 549, 557
(1995). Courts may invalidate a congressional enactment
upon a plain showing that Congress has exceeded its constitu-
tional bounds. See id. at 577-78.
As the court’s opinion properly recognizes, the Supreme
Court has “identified three general categories of regulation in
which Congress is authorized to engage under its commerce
power:” (1) “the channels of interstate commerce;” (2) “the
instrumentalities of interstate commerce, and persons or
things in interstate commerce;” and (3) “activities that sub-
stantially affect interstate commerce.” Gonzales v. Raich, 545
U.S. 1, 16 17 (2005) (citing Perez v. United States, 402 U.S.
UNITED STATES v. REYNARD 415
146, 150 (1971); NLRB v. Jones & Laughlin Steel Corp., 301
U.S. 1, 37 (1937)). To be valid, a statute need only relate to
one category. See Condon, 528 U.S. at 148-49. The first and
third categories of Congressional authority to regulate instate
commerce are not implicated by the facts of this case. Thus,
there is a need to determine whether the passage of the DNA
Act is grounded on a valid exercise of Congressional author-
ity to regulate interstate commerce under the second category.
The district court found that the second category applies to
this case and that the relevant case law supports the govern-
ment’s contention that DNA samples taken under the Act by
drawing blood from parolees are “things in interstate com-
merce.” Reynard, 220 F. Supp. 2d at 1174. The Supreme
Court recently analyzed this category in Condon. In Reno v.
Condon, 528 U.S. 141 (2000), South Carolina challenged the
constitutionality of the Driver’s Privacy Protection Act
(“DPPA”), 18 U.S.C. §§ 2721-25, Pub. L. No. 103-322, 108
Stat. 1796 (1994 ed. and Supp. IV), which regulates and
restricts the ability of states and private actors to sell, use, or
disclose the personal identifying data in department of motor
vehicle (“DMV”) records without a driver’s consent. See
Condon, 528 U.S. at 143. The Court noted that this personal
identifying information is used by a variety of actors engaged
in interstate commerce — from insurers, manufacturers, and
marketers, to various public and private entities involved in
matters related to interstate motoring. See id. at 148. The
Court concluded that drivers’ information is “an article of
commerce,” and that “its sale or release into the interstate
stream of business is sufficient to support congressional regu-
lation.” Id.
The government contends that the DNA Act, like the
DPPA, regulates the release and use of personal identifying
data. The DNA Act seeks to regulate the collection of DNA
samples as well as the transportation of such samples to the
FBI, where the information is included in CODIS and made
available to law enforcement personnel in all fifty states. See
416 UNITED STATES v. REYNARD
Reynard, 220 F. Supp. 2d at 1173 (“[T]he DNA Act essen-
tially regulates the collection and distribution of data — i.e.,
the DNA of certain federal offenders — for distribution and
use around the country.”).
The district court found that Condon suggests that Congress
is empowered to regulate “things” in interstate commerce,
even where such “things” are disclosed or released into the
stream of commerce without any sale or other economic
transaction. See id. at 1171-72 (citing Condon, 528 U.S. at
148); see also United States v. Cummings, 281 F.3d 1046,
1048 (9th Cir. 2002) (“Congress’s Commerce Clause author-
ity is broad enough to stretch beyond the simple regulation of
commercial goods traveling in interstate and foreign com-
merce to include regulation of non-economic activities . . . .”).
Because the DNA Act seeks to regulate and protect an instru-
mentality (or thing) in interstate commerce, the district court
found that passage of the DNA Act fell within Congress’s
regulatory authority. See Reynard, 220 F. Supp. 2d at 1174
(citing Lopez, 514 U.S. at 557-58).
But, Condon is readily distinguishable from the instant
case. As explained above, the DPPA regulates the release and
use of drivers’ personal information held by the DMV. In
enacting the DPPA, the federal government sought to regulate
a “thing” (information) that was already in the stream of com-
merce and was placed into the stream of commerce by local
or state governments. See Condon, 528 U.S. at 148.
In contrast, by passing the DNA Act, Congress is attempt-
ing to regulate something that it — and nobody else — has
put into the stream of commerce. Reynard’s DNA — while
housed in his body — is not a “thing” in interstate commerce
until the government, under the DNA Act, compels the
DNA’s extraction by drawing blood from a parolee and places
the DNA in the stream of commerce for analysis. Congress
may not bootstrap its authority to regulate purely local activ-
ity under the Commerce Clause. If the government is allowed
UNITED STATES v. REYNARD 417
to regulate anything that it puts into the stream of commerce,
its powers under the Commerce Clause would be without
limit. “To be sure, ‘the power to regulate commerce, though
broad indeed, has limits.’ ” Citizens Bank v. Alafabco, Inc.,
539 U.S. 52, 58 (2003) (quoting Maryland v. Wirtz, 392 U.S.
183, 196 (1968)). By arguing that Condon authorizes Con-
gress to regulate Reynard’s DNA only after the government
has placed it in interstate commerce, the government puts the
proverbial cart before the proverbial horse.
Because passage of the DNA Act cannot be justified under
any of the three “categories of regulation in which Congress
is authorized to engage under its commerce power,” Raich,
125 S. Ct. at 2205, I agree with Reynard that passage of the
DNA Act exceeds Congress’s power under the Commerce
Clause.1
1
In addressing similar challenges to the DNA Act, the Tenth Circuit
found that it need not determine whether the DNA Act was properly
enacted under the Commerce Clause because it reasoned that the “Act is
a legitimate exercise of congressional power under the Necessary and
Proper Clause.” United States v. Plotts, 347 F.3d 873, 877 (10th Cir.
2003). The Plotts court concluded that the DNA Act either constitutes a
civil sanction for the violation of a criminal law, see id. at 878, or a law
enforcement tool, see id. at 879, and that the Necessary and Proper Clause
provides a means of implementation and enforcement, see id. at 878-79.
I believe that the Tenth Circuit misapprehends the Necessary and Proper
Clause.
The Necessary and Proper Clause allows Congress to enact laws, sub-
ject to other constitutional constraints, “that bear a rational connection to
any of its enumerated powers.” Id. at 878 (quoting United States v. Edgar,
304 F.3d 1320, 1326 (11th Cir. 2002). To be sure, “[w]here necessary to
make a regulation of interstate commerce effective, Congress may regulate
even those interstate activities that do not themselves substantially affect
interstate commerce.” Raich, 545 U.S. at 35. However, as discussed ear-
lier, the DNA Act does not bear a rational relationship to the Commerce
Clause and it is not necessary to effectively regulate interstate commerce
because there is no interstate commerce in federal supervised releasees’
DNA. Congress’ reliance on the Commerce Clause in enacting the DNA
Act is an attempted rationalization for regulating “things” that the govern-
418 UNITED STATES v. REYNARD
ment itself — and only the government — has put into the stream of com-
merce. See M’Culloch v. Maryland, 17 U.S. 316, 423 (1819) (rejecting
congressional use of the Necessary and Proper Clause, “under the pretext
of executing its powers, [to] pass laws for the accomplishment of objects
not intrusted to the government”).