United States v. Lujan ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 02-30237
Plaintiff-Appellee, D.C. No.
v.  CR-98-00480-
LISA RENEE LUJAN, HA-02
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the District of Oregon
Ancer L. Haggerty, District Judge, Presiding
Submitted September 25, 2007*
Portland, Oregon
Filed October 2, 2007
Before: Ferdinand F. Fernandez, Barry G. Silverman, and
Susan P. Graber, Circuit Judges.
Opinion by Judge Silverman
*This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
13397
UNITED STATES v. LUJAN 13399
COUNSEL
Ruben L. Iñiquez, Assistant Federal Public Defender, Port-
land, Oregon, for the defendant-appellant.
Jonathan L. Marcus, U.S. Department of Justice, Washington,
D.C., for the plaintiff-appellee.
Charles L. Hobson, Criminal Justice Legal Foundation, Sacra-
mento, California, for the amicus curiae.
OPINION
SILVERMAN, Circuit Judge:
Lisa Renee Lujan appeals from the district court’s order
authorizing the probation office to demand the collection of
a blood sample as a condition of her supervised release, as
mandated by the DNA Analysis Backlog Elimination Act of
2000 (“DNA Act”), 42 U.S.C. §§ 14135-14135e. She alleges
that the Act violates the Fourth Amendment and the Ex Post
Facto Clause, that it is an unconstitutional bill of attainder,
and that it contravenes separation of powers. We reject these
constitutional challenges and affirm.
I. Background
On May 10, 1999, Lujan pleaded guilty to one count of aid-
ing and abetting unarmed bank robbery, in violation of 18
U.S.C. § 2113(a), and on May 22, 2000, the district court sen-
tenced her to 18 months’ imprisonment and three years of
13400 UNITED STATES v. LUJAN
supervised release. Three weeks later, on June 12, 2000, the
district court granted the government’s motion for a reduction
of sentence pursuant to Federal Rule of Criminal Procedure
35(b), and Lujan’s sentence was reduced to 12 months.
The terms of Lujan’s supervised release made no mention
of any requirement that she submit to a DNA sample.
On December 19, 2000, the DNA Act became effective.
Pub. L. No. 106-546, 114 Stat. 2726. On January 28, 2002,
while Lujan was on supervised release, the United States Pro-
bation Office notified her in writing that she had to provide
a blood sample within 90 days. When Lujan failed to comply,
the government filed a petition to revoke supervised release.
The district court issued a summons for her appearance on
April 10, 2002.
On April 17, 2002, Lujan filed a motion opposing the
required collection as a new condition of her supervised
release. In a July 9, 2002, order, the district court denied the
motion and ordered her to comply with the directives of the
probation office or risk a possible revocation hearing. On July
29, 2002, the court stayed its order pending appeal.
Lujan’s appeal was held in abeyance pending the disposi-
tions in United States v. Kincade, 379 F.3d 813 (9th Cir.
2004) (en banc), and United States v. Reynard, 473 F.3d 1008
(9th Cir. 2007), petition for cert. filed, ___ U.S.L.W. ___
(U.S. July 5, 2007) (No. 07-5195).
II. Jurisdiction
The district court had subject matter jurisdiction over the
criminal proceeding under 18 U.S.C. § 3231. We have juris-
diction under 28 U.S.C. § 1291.
III. Standard of Review
Defendant challenges the constitutionality of a federal
statute—a question of law that we review de novo. United
UNITED STATES v. LUJAN 13401
States v. Zakharov, 468 F.3d 1171, 1176 (9th Cir. 2006), cert.
denied, 127 S. Ct. 2150 (2007).
IV. Discussion
[1] The DNA Analysis Backlog Elimination Act authorizes
the probation office to collect a DNA sample from any indi-
vidual on supervised release. See 42 U.S.C. § 14135a(a)(2).
Lujan challenges the Act under four different provisions of
the Constitution.
A. Fourth Amendment and Ex Post Facto Clause
[2] Lujan argues that the DNA Act constitutes a suspicion-
less search in violation of the Fourth Amendment and
imposes a new condition on her supervised release in viola-
tion of the Ex Post Facto Clause. Our decision in Kincade dis-
poses of the Fourth Amendment challenge. See 379 F.3d at
832 (upholding compulsory DNA collection on a “totality of
the circumstances” analysis); id. at 840 (Gould, J., concurring
in the judgment) (upholding DNA collection based on “spe-
cial needs” doctrine). Our decision in Reynard, 473 F.3d at
1021, rejected an identical ex post facto challenge to the DNA
Act after holding that the statute did not have a punitive
effect. 473 F.3d at 1021.
B. Bill of Attainder
Lujan next asserts that the DNA Act imposes punishment
on a disfavored class without judicial involvement, and is thus
an unconstitutional bill of attainder.
[3] A law is an unconstitutional bill of attainder if it “legis-
latively determines guilt and inflicts punishment upon an
identifiable individual without provision of the protections of
a judicial trial.” Nixon v. Adm’r of Gen. Servs., 433 U.S. 425,
468 (1977). Three inquiries determine whether a statute “in-
flicts punishment”:
13402 UNITED STATES v. LUJAN
(1) whether the challenged statute falls within the
historical meaning of legislative punishment; (2)
whether the statute, “viewed in terms of the type and
severity of burdens imposed, reasonably can be said
to further nonpunitive legislative purposes”; and (3)
whether the legislative record “evinces a congressio-
nal intent to punish.”
Selective Serv. Sys. v. Minn. Pub. Interest Research Group,
468 U.S. 841, 852 (1984) (quoting Nixon, 433 U.S. at 473).
[4] Our analysis in Reynard forecloses Lujan’s challenge
on this element. Cf. Butler v. Apfel, 144 F.3d 622, 626 (9th
Cir. 1998) (per curiam) (noting that “the touch-stone for our
analysis” under either clause is “whether [the statute] is a
form of punishment”). First, we held that “neither blood nor
DNA collection [has] been historically viewed as punish-
ment.” Reynard, 473 F.3d at 1020. Second, we classified the
disability imposed by the DNA Act as “minimal” and held
that the statute was “a reasonable means by which Congress
[could] achieve and regulate a non-punitive goal.” Id. at 1020-
21. Third, we reviewed the legislative history of the Act and
determined that “it was not enacted for punitive reasons.” Id.
at 1019; see also United States v. Hook, 471 F.3d 766, 776
(7th Cir. 2006) (holding that the DNA Act was not a bill of
attainder), cert. denied, 127 S. Ct. 2081 (2007).
C. Separation of Powers
Lujan lastly argues that the DNA Act violates the separa-
tion of powers doctrine because it allows probation officers,
who work for the judicial branch, to exercise executive branch
functions by detaining, restraining, and collecting a DNA
sample from an uncooperative defendant. She contends that
such “police functions” are normally performed by the execu-
tive branch and that requiring courts to perform them threat-
ens the judicial branch’s “institutional integrity.”
UNITED STATES v. LUJAN 13403
“Congress may delegate to the Judicial Branch nonadjudi-
catory functions that do not trench upon the prerogatives of
another Branch and that are appropriate to the central mission
of the Judiciary.” Mistretta v. United States, 488 U.S. 361,
388 (1989). “[A]n independent agency located within the
Judicial Branch may undertake without constitutional conse-
quences policy judgments pursuant to a legitimate congressio-
nal delegation of authority that, if undertaken by a court,
might be incongruous to or destructive of the central adjudica-
tory mission of the Branch.” Id. at 394 n.20; see also United
States v. Belgard, 894 F.2d 1092, 1096 (9th Cir. 1990)
(“[T]here is nothing unconstitutional about nonadjudicatory
activities being undertaken by auxiliary bodies that are placed
within the judicial branch.”). The DNA Act is a legitimate
delegation of congressional authority.
[5] First, the DNA Act does not encroach on the preroga-
tives of the executive branch. The probation office’s authority
is limited to the collection of the DNA sample. It has no role
in analyzing that sample or in using the test results to detect,
investigate, or prosecute other crimes—quintessential law
enforcement functions vested in the executive branch. See
Hook, 471 F.3d at 776-77; United States v. Sczubelek, 402
F.3d 175, 188 (3d Cir. 2005), cert. denied, 126 S. Ct. 2930
(2006).
[6] Second, the purpose of the DNA Act is consistent with
the mission of the judiciary. As we recognized in Reynard, the
statute seeks to deter recidivism by instilling in defendants a
fear that future crimes of theirs will be readily identified. 473
F.3d at 1020. As the Third Circuit noted, such a purpose fur-
thers “the two primary goals of supervised release[, which]
are rehabilitation and the prevention of harm to others.” Sczu-
belek, 402 F.3d at 189.
AFFIRMED.