United States v. Hook, George

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