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”).