United States v. Gnirke, No. 13-50101 (9th Cir. 2015)
Annotate this CaseDefendant appealed a special condition of supervised release prohibiting him from possessing depictions of "sexually explicit conduct" involving children or adults and from patronizing any place where such depictions are available. The court agreed with the district court that the condition is generally necessary to achieve the goals of supervised release pursuant to 18 U.S.C. 3583. However, the court concluded that the record does not support the restriction of defendant's access to non-pornographic depictions of adults where that speech is protected by the First Amendment. The court affirmed the judgment, construing the condition not to apply to such materials.
Court Description: Criminal Law. The panel affirmed a special condition of supervised release prohibiting the defendant from possessing depictions of “sexually explicit conduct” involving children or adults and from patronizing any place where such depictions are available. The panel held that the record supports the district court’s conclusion that the condition is generally necessary to achieve the goals of supervised release under 18 U.S.C. § 3583, but it does not support the restriction of the defendant’s access to non-pornographic depictions of adults – speech that is protected by the First Amendment. The panel therefore construed the condition to apply: (1) to any materials with depictions of “sexually explicit conduct” involving children, as defined by 18 U.S.C. § 2256(2), and (2) to any materials with depictions of “sexually explicit conduct” involving adults, defined as explicit sexually stimulating depictions of adult sexual conduct that are deemed inappropriate by the defendant’s probation officer. The panel wrote that the defendant may not possess such materials, nor may he patronize any place where such materials or entertainment are available. Concurring in the judgment, Judge M. Smith agreed with the majority that the district court did not abuse its discretion in imposing the condition; he disagreed that the panel must – or even can – reach that conclusion by construing the condition to say something that it plainly does not say.
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