RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0077p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 08-1915
v.
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Defendant-Appellant. -
LARRY J. COCCIA,
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Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 06-00034-001—Robert Holmes Bell, District Judge.
Argued: January 13, 2010
Decided and Filed: March 19, 2010
Before: MARTIN, BOGGS, and WHITE, Circuit Judges.
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COUNSEL
ARGUED: Clare E. Freeman, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Grand
Rapids, Michigan, for Appellant. Hagen W. Frank, ASSISTANT UNITED STATES
ATTORNEY, Grand Rapids, Michigan, for Appellee. ON BRIEF: Clare E. Freeman,
Richard D. Stroba, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Grand Rapids,
Michigan, for Appellant. Raymond E. Beckering III, ASSISTANT UNITED STATES
ATTORNEY, Grand Rapids, Michigan, for Appellee.
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OPINION
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HELENE N. WHITE, Circuit Judge. Defendant Larry J. Coccia (“Coccia”) appeals
the district court’s judgment, which found that Coccia had violated a term of his supervised
release, continued his supervised release, and required him to provide a DNA sample.
Coccia asserts that the district court erred in finding that he had violated his supervised
release, and that requiring him to provide a DNA sample under a statute that did not apply
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No. 08-1915 United States v. Coccia Page 2
to him at the time of his original conviction and sentence violates the Ex Post Facto Clause
of the United States Constitution. We AFFIRM the district court’s judgment because a
review of the record confirms that the court found Coccia in violation of the terms of his
supervised release, and collecting DNA from Coccia was not unconstitutional.
I. Background
Coccia, who has a history of psychiatric problems, was found guilty in
Massachusetts of possessing a firearm while subject to a restraining order in violation of
18 U.S.C. § 922(g)(8), and was sentenced to 60 months in custody to be followed by three
years of supervised release. Jurisdiction over Coccia’s term of supervised release was
subsequently transferred to the Western District of Michigan.
After Coccia failed to appear for two appointments to provide a DNA sample, his
Probation Officer, Rhonda J. Wallock (“Wallock”), scheduled a third appointment for March
11, 2008. On March 3, 2008, Wallock received a letter from Coccia dated February 24,
2008, in which Coccia stated his intention to relocate on March 4, 2008 to Sault Ste. Marie
in the Upper Peninsula of Michigan, which is in the Northern Division of the Western
District of Michigan. Coccia’s letter stated “Please note my new address,” and provided the
address of a motel in Sault Ste. Marie.
Wallock spoke with Coccia by phone on March 5, 2008, and Coccia confirmed that
he was in Sault Ste. Marie and intended to remain there. Wallock informed Coccia that he
had to return to have his DNA collected, and that he had failed to provide her with ten days
notice of his relocation as required by the terms of his supervised release. During the
conversation, Coccia claimed that Wallock was no longer his probation officer because he
had relocated, and Wallock informed Coccia that his understanding was incorrect.
On March 6, 2008, Coccia appeared at the U.S. Probation Office in Marquette,
Michigan, and asked to speak with his “new” probation officer. An officer there informed
Coccia that Wallock was still his probation officer and that he had to return to Grand Rapids,
in the Southern Division, for DNA collection. Coccia appeared anxious and agitated, and
was acting bizarrely. Afer leaving the probation office, Coccia went to the federal
No. 08-1915 United States v. Coccia Page 3
courthouse where he asked to see District Judge Robert Bell. Based on his demeanor, the
court security officers ordered Coccia to leave the courthouse.
Informed of these events, Wallock petitioned for an arrest warrant. A magistrate
judge granted the petition and issued a warrant for Coccia’s arrest based on his violating
Standard Condition Number Six of his supervised release, which required him to provide ten
days notification before relocation. United States Marshals arrested Coccia.
On July 1, 2008, the district court held a hearing regarding Coccia’s alleged violation
of his supervised release. Coccia’s counsel stated at the hearing that he was “kind of
pleading no contest” and that he believed that Coccia had engaged in a “technical violation”
of Standard Condition Six, but that Coccia’s move to the motel “didn’t really qualify as
much of a residence or a permanent residence or a permanent change.” Coccia’s counsel
requested that should the court find a violation, the court not revoke Coccia’s supervised
release, but instead order it continued.
After hearing testimony regarding the relevant events from Wallock, the district court
arranged for the DNA sample to be taken by Coccia’s brother-in-law, who is a doctor and
who employed Coccia part-time. The district court stated:
What we’re going to do is this. I’m going to continue Mr.
Coccia on supervised release. I’m going to require that
within the next 30 days Mr. Coccia in conjunction with his
brother-in-law and in conjunction with his employment get
the DNA test done.
Coccia’s counsel did not raise any objections.
The minutes of the hearing note that the court found Coccia guilty of violating
Standard Condition Number Six, and in its Amended Judgment the district court explicitly
found Coccia in violation of Standard Condition Number Six based on his failure to provide
Wallock with ten days prior notice of his change of residence. The Amended Judgment also
modified the conditions of supervised release, including requiring Coccia to submit to DNA
collection within thirty days of the date of the Judgment.
No. 08-1915 United States v. Coccia Page 4
Coccia complied with the order to provide a DNA sample, but also filed a notice of
appeal. On March 21, 2009, Coccia’s term of supervised release expired, and on March 25,
2009, Coccia was discharged from supervised release.
II. Analysis
A.
Coccia’s first claim of error, challenging the Amended Judgment’s finding that he
violated the terms of his supervised release on the basis that the district court did not make
an explicit finding during the hearing, is likely moot. However, because the argument is so
easily addressed and rejected, we will simply do so.
The district court’s finding of a violation was implicit in the course of the
proceedings. Such a finding was entered in the contemporaneous minutes, and was stated
in the order. A court speaks through its written orders and judgments, and where, as here,
such a judgment is consistent with the record of the proceedings, there is no reason to
reverse. See United States v. Busacca, 977 F.2d 583, at *1 (6th Cir. 1992) (unpublished
table decision) (citing United States v. Bergmann, 836 F.2d 1220, 1221 (9th Cir. 1988)).
B.
Coccia claims that requiring him to provide a DNA sample under 42 U.S.C.
§ 14135a(d) violates the Constitution’s prohibition on ex post facto laws. Although Coccia
has already complied with the district court’s order and provided a blood sample, he requests
as relief the removal of his DNA from the federal database. Because Coccia did not raise
this claim below, our review is for plain error. United States v. Olano, 507 U.S. 725, 731-32
(1993).
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. Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322,
108 Stat. 1796 (Sept. 13, 1994). Pursuant to this Act, the FBI created the Combined DNA
Index System (“CODIS”), which allows law enforcement officials to link DNA found at a
crime scene to DNA on file. Congress allowed for certain federal offenders to be included
in CODIS in the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”).
No. 08-1915 United States v. Coccia Page 5
AEDPA § 811(a)(2), Pub. L. No. 104-132, 110 Stat. 1214 (April 24, 1996). Subsequently,
the Department of Justice determined that AEDPA did not provide sufficient authority for
the collection of DNA from federal offenders, and in response Congress passed the DNA
Analysis Backlog Elimination Act of 2000 (“DNA Act”), §3, Pub. L. No. 106-546, 114 Stat.
2726 (2000) (codified at 42 U.S.C. §§ 14135-14135e). The DNA Act mandated the
collection of DNA samples from prisoners, parolees, and individuals on probation who have
committed certain qualifying offenses. Failure of an individual covered by the DNA Act to
submit to DNA collection constitutes a Class “A” misdemeanor subject to punishment in
accordance with 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, if personally identifiable information
is first removed, for statistical and quality control purposes. 42 U.S.C. §14132(b)(3)(A)-(D).
It is undisputed that at the time Coccia was convicted of possessing a firearm while
under a restraining order he was not covered by the DNA Act because his crime was not one
of the enumerated offenses. However, on October 30, 2004, Congress passed the Justice for
All Act of 2004, § 203, Pub. L. No. 108-405, 118 Stat. 2260 (codified at 42 U.S.C.
§ 14135a(d)) (“Justice Act”), which amended the DNA Act to require DNA samples from
individuals convicted of “any [federal] felony.” 42 U.S.C. § 14135a(d)(1) (2004). Coccia
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argues that requiring him to provide a DNA sample violates the Ex Post Facto Clause,
because he was not required to do so by statute at the time of his conviction and sentencing.
The Ex Post Facto Clause prohibits Congress from passing laws that:
(1) “make[ ] an action, done before the passing of the law,
and which was innocent when done, criminal; and punish[ ]
such action,” (2) “aggravate[ ] a crime,” making it “greater”
than when committed, (3) increase the punishment beyond
that prescribed when the action was done, or (4) “alter [ ] the
legal rules of evidence, [to] receive[ ] less, or different,
testimony, than the law required at the time of the
commission of the offence, in order to convict the offender.”
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Article 1, § 9, cl. 3 of the U.S. Constitution states: “No bill of attainder or ex post facto law shall
be passed.”
No. 08-1915 United States v. Coccia Page 6
United States v. Eberhard, 525 F.3d 175, 178 (2nd Cir. 2008) (quoting Calder v. Bull, 3 U.S.
(3 Dall.) 386, 390 (1798)).
Coccia argues that requiring him to submit a DNA sample violates the Ex Post Facto
Clause by increasing his punishment beyond that applicable at the time of his conviction and
sentencing.
The DNA Act explicitly applies retroactively:
The probation office responsible for the supervision under
Federal law of an individual on probation, parole, or
supervised release shall collect a DNA sample from each
such individual who is, or has been, convicted of a
qualifying Federal offense . . .
42 U.S.C. § 14135a(a)(2) (emphasis added); see also United States v. Harley, 315 F. App’x
437, 440 (3rd Cir. 2009) (unpublished table decision). “If the intention of the legislature [in
enacting a statute that has retroactive application] was to impose punishment, that ends the
inquiry,” and the statute violates the Ex Post Facto Clause. Smith v. Doe, 538 U.S. 84, 92
(2002). “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 effect as to negate [the State’s] intention’ to deem it ‘civil.’” Id. (quoting Kansas
v. Hendricks, 521 U.S. 346, 361 (1997)). In making the determination that a statute deemed
“civil” by the legislature is, in actuality, punitive, “only the clearest proof will suffice to
override legislative intent and transform what has been denominated a civil remedy into a
criminal penalty,” Smith, 538 U.S. at 92 (quoting Hudson v. United States, 522 U.S. 93, 100
(1997)), because the courts “ordinarily defer to the legislature’s stated intent.” Id. (quoting
Hendricks, 521 U.S. at 361).
Coccia concedes that “[c]ourts considering this issue have concluded that Congress
intended a regulatory scheme—rather than a punitive purpose—in enacting the DNA Act,”
and does not argue otherwise. See, e.g., United States v. Hook, 471 F.3d 766, 776 (7th Cir.
2006) (holding DNA Act as amended by the Justice Act “punitive in neither purpose nor
effect”); Johnson v. Quander, 440 F.3d 489, 500-01 (D.C. Cir. 2006) (same); Harley, 315
F. App’x at 441 (“The evidence suggests that Congress did not intend the Justice Act to
impose punishment.”). Coccia argues, however, that the effect of the DNA Act is
No. 08-1915 United States v. Coccia Page 7
sufficiently punitive to override Congress’s intent. We therefore look to the seven factors
for evaluating such a claim enumerated by the Supreme Court in Kennedy v. Mendoza-
Martinez, 372 U.S. 144, 168-69 (1963):
[(1) w]hether the sanction involves an affirmative disability
or restraint, [(2)] whether it has historically been regarded as
punishment, [(3)] whether it comes into play only on a
finding of scienter, [(4)] whether its operation will promote
the traditional aims of punishment-retribution and
deterrence, [(5)] whether the behavior to which it applies is
already a crime, [(6)] whether an alternative purpose to
which it may rationally be connected is assignable for it, and
[(7)] whether it appears excessive in relation to the
alternative purpose assigned . . . .
Coccia concedes that all courts that have applied these factors to the DNA Act as
amended by the Justice Act have held that it does not have an overriding punitive effect.
See, e.g., Harley, 315 F. App’x at 441 (recognizing that “every court of appeals to have
applied these factors to the Justice Act, the unamended DNA Act, and similar state laws has
held that such laws do not have fatally punitive effects.”). He argues, however, that those
courts’ conclusions “do not concur with the reality of the impact of the Act on offenders.”
Whether the DNA Act has an overriding punitive effect is an issue of first impression
in this Circuit. We too conclude that the DNA Act is not so punitive in effect as to override
its regulatory purpose, and thus that applying it to Coccia does not violate the Ex Post Facto
Clause.
Coccia argues that three of the Kennedy factors favor finding the DNA Act
functionally punitive. Coccia first claims that in relation to the first factor, the DNA Act
confers a substantial disability because DNA collection “involves an intrusion into one’s
personal and bodily sphere; it involves the collection and cataloguing of the most important
and intimate details of one’s physical being. It involves discomfort.” The Ninth Circuit in
United States v. Reynard, 473 F.3d 1008, 1016 (9th Cir. 2007), agreed that the DNA Act
confers a disability by requiring an individual’s submission “to the physical intrusion of
blood extraction and also creates a ‘disability’ by incorporating . . . DNA information into
a nationwide database,” but concluded that the intrusion was minimal. Reynard held that the
inclusion of the DNA sample in the CODIS database was a minimal intrusion because the
No. 08-1915 United States v. Coccia Page 8
genetic markers used to identify individuals are “purposely selected because they are not
associated with any known genetic trait.” Reynard, 473 F.3d at 1016. Further, blood tests
generally are considered minimally intrusive. Hook, 471 F.3d at 776 (citing Jones v.
Murray, 962 F.2d 302, 306 (4th Cir. 1992)); see also Gilbert v. Peters, 55 F.3d 237, 238-39
(7th Cir. 1995) (“Both federal and state courts have uniformly concluded that statutes which
authorize collection of blood specimens to assist in law enforcement are not penal in nature.
Rather, the blood sample is taken and analyzed for the sole purpose of establishing a data
bank which will aid future law enforcement.” (internal quotations omitted)); see also
Harley, 315 F. App’x at 441-42 (rejecting claim that courts have “underestimated the
magnitude of the affirmative disability” imposed by the DNA Act as amended). We agree
that this fact does not establish the DNA Act as punitive.
Coccia next asserts, regarding the fourth Kennedy factor, that the DNA Act promotes
the purposes of sentencing because it constitutes an “ongoing stigma and [] real threat of an
additional conviction.” In Reynard, the Court noted that “[l]egislative history suggests that
Congress acknowledged that the DNA Act might help curb recidivism rates,” but that “not
every law with a deterrent effect is punitive.” Reynard, 473 F.3d at 1020 (citing United
States v. Jackson, 189 F.3d 820, 824 (9th Cir. 1999)). The Court in Reynard also held that
the DNA Act did “not have a retribution component because it does not label the offender
as more culpable than before, and is not geared toward making [the individual] understand
and regret the severity of his crimes.” Id. at 1020 (internal brackets and citations omitted).
The Seventh Circuit held in Hook, 471 F.3d at 776, that neither a blood test nor retention of
information is punitive, and further observed:
In the event that [a defendant] had committed other crimes
for which he might be convicted as a result of his DNA
being collected, 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.
We agree.
Coccia finally claims in relation to the fifth Kennedy factor that failure to submit a
DNA sample was not previously a crime. The court in Reynard held that the penalty in the
DNA Act for non-compliance is punished as a separate offense, diminishing potential ex post
No. 08-1915 United States v. Coccia Page 9
facto concerns because the purpose of the Clause is to protect against increased punishment
for prior, not separate, offenses. Reynard, 473 F.3d at 1020-21; see also Hook, 471 F.3d at
776.
We also agree with the court in Reynard in finding that the other Kennedy factors,
which Coccia does not dispute, favor finding that the DNA Act is not functionally punitive.
Reynard, 473 F.3d at 1020-21. Under the totality of the factors, the DNA Act, as amended
by the Justice Act, does not have an overriding punitive effect, and its application to Coccia
does not violate the Ex Post Facto Clause. See Harley, 315 F. App’x at 441; Reynard, 473
F.3d at 1020-21; Hook, 471 F.3d at 776. Thus, the district court did not commit error, plain
or otherwise.
We AFFIRM the district court.