                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-23-2008

USA v. Hardy
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1364




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"USA v. Hardy" (2008). 2008 Decisions. Paper 988.
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                                                  NOT PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT

                       ___________

                       No. 07-1364
                       ___________


             UNITED STATES OF AMERICA

                             vs.

                    WILLIE C. HARDY

                             Appellant.

                       ___________


       On Appeal from the United States District Court
          for the Western District of Pennsylvania
               (D.C. Criminal No. 06-cr-00308)
        District Judge: The Honorable Alan N. Bloch

                       ___________

         Submitted Under Third Circuit LAR 34.1(a)
                      May 23, 2008


BEFORE: SMITH, HARDIMAN, and NYGAARD, Circuit Judges.



                    (Filed June 23, 2008)

                       ___________

                OPINION OF THE COURT
                     ___________
NYGAARD, Circuit Judge.

       William Hardy appeals from his sentence, following his guilty plea. Because our

opinion is wholly without precedential value, and because the parties and the District

Court are familiar with its operative facts, we offer only an abbreviated recitation to

explain why we will affirm the judgment of conviction and sentence of the District Court.

       Hardy received a subpoena to testify before a grand jury. He failed to appear, and

provided a fictional excuse for his absence. Hardy pleaded guilty to criminal contempt

and making a false statement.

       The District Court sentenced him to probation. Hardy was also ordered to

cooperate in the collection of a DNA sample, as directed by the probation officer. Hardy

did not object to these requirements during the sentence hearing. Hardy, however, did

timely file a motion to correct the sentence, in accord with Fed. R. Civ. P. 35(a),

asserting that the court-ordered collection of a DNA sample violates both his Fourth

Amendment rights and the Commerce Clause. Hardy raises the same issues on appeal.

       With regard to Hardy’s Fourth Amendment claim, we find that our precedent

controls the claim. United States v. Sczubelek, 402 F.3d 175 (3d Cir. 2005). We have

already found that the DNA Backlog Elimination Act of 2000 (42 U.S.C. §§14135-

14135(e)) does not violate the Fourth Amendment. We have also stated in the past that

there is “no constitutional difference between probation and parole” as it relates to the

Fourth Amendment. United States v. Hill, 967 F.2d 902, 909 (3d Cir. 1992). As a


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probationer, Harvey’s expectation of privacy is reduced below that of an ordinary citizen,

and such rights were not violated by the requirement that he provide a DNA sample.

We find unavailing Hardy’s reference to Samson v. California, 126 S.Ct. 2193 (2006).

Samson does not address the DNA Act, and it does not change the analysis already

detailed by our precedent.

       With regard to the Commerce Clause argument, we note that the Supreme Court

has already held that personal information contained in a Department of Motor Vehicles’

record is a “thing” in interstate commerce, and that the Commerce Clause authorizes

Congress to regulate “the sale or release of such information.” Reno v. Condon, 120

S.Ct. 666, 671 (2000) ( quoting Lopez, 115 S. Ct. 1624, 1630 (1995) (emphasis added) .

We agree with the reasoning of the Court of Appeals of the Ninth Circuit that the same

holds true for information obtained in the DNA Act. United States v. Reynard, 473 F.3d.

1008, 1023 (9th Cir. 2007). Therefore we conclude that the personal, identifying

information contained in a DNA sample constitutes a “thing” in interstate commerce.

       Moreover, as stated by the Court of Appeals for the Tenth Circuit, the DNA Act is

a necessary and proper sanction to a valid criminal law. United States v. Plotts, 347 F.3d

873, 877 (10th Cir. 2003).

       For all of these reasons, we will affirm the Judgment of Conviction and Sentence

of the District Court.




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