United States v. David P. Gnirke , 775 F.3d 1155 ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-50101
Plaintiff-Appellee,
D.C. No.
v. 3:95-cr-01122-
LAB-1
DAVID P. GNIRKE,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Argued and Submitted
April 10, 2014—Pasadena, California
Filed January 2, 2015
Before: Sidney R. Thomas, Chief Judge, and Milan D.
Smith, Jr. and Morgan Christen, Circuit Judges.
Opinion by Judge Christen;
Concurrence by Judge Milan D. Smith, Jr.
2 UNITED STATES V. GNIRKE
SUMMARY*
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 –
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. GNIRKE 3
or even can – reach that conclusion by construing the
condition to say something that it plainly does not say.
COUNSEL
John Charles Ellis, Jr. (argued), Amy Frances Kimpel, and
Harini P. Raghupathi, Federal Defenders of San Diego, San
Diego, California, for Defendant-Appellant.
Charlotte E. Kaiser (argued) and Bruce R. Castetter, Office of
the United States Attorney, San Diego, California, for
Plaintiff-Appellee.
OPINION
CHRISTEN, Circuit Judge:
This case presents a potential conflict between the
statutory purposes of supervised release and a defendant’s
First Amendment rights. David Gnirke appeals 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 record in this case
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 Gnirke’s access to non-pornographic depictions of
adults—speech that is protected by the First Amendment.
Construing the condition not to apply to such materials, we
affirm.
4 UNITED STATES V. GNIRKE
BACKGROUND
In 1995 David Gnirke was living with his girlfriend and
her three children at the U.S. Marine Corps Base at Camp
Pendleton, California. One night, Gnirke’s girlfriend returned
home to find Gnirke icing the genital area of one of her twin
babies. Gnirke explained that the baby had gotten itself
caught on the top rail of the crib. Upon being taken to the
hospital, medical staff noted swelling of the genital area that
the staff did not find to be consistent with Gnirke’s
explanation. A doctor concluded that “[t]he best explanation
for the penile injury is that hard suction was applied to the
penis.”
Gnirke was tried and convicted of aggravated criminal
abuse of a child under 18 U.S.C. § 2241(c), and corporal
punishment or injury of a child under California Penal Code
§ 273d.1 He was sentenced to 235 months of imprisonment
and five years of supervised release. The district court
initially imposed several conditions of supervised release,
which did not include restrictions on Gnirke’s access to
pornographic or sexually explicit materials.
Near the end of his term of imprisonment, two
psychologists for the correctional facility’s Sex Offender
Management Program prepared a discharge evaluation for
Gnirke. The evaluation first noted that Gnirke did not meet
the criteria for civil commitment of a sexually dangerous
person under 18 U.S.C. § 4248. It went on to evaluate
Gnirke’s relevant history and to assess his risk of reoffending.
1
This was a federal crime because it occurred on the marine base.
18 U.S.C. § 13.
UNITED STATES V. GNIRKE 5
The evaluation contained a diagnosis of pedophilia and
antisocial personality disorder. It noted a pattern of
deceitfulness and “irresponsible behavior as related to
treatment obligations.” In particular, Gnirke had refused to
participate in a sex offender treatment program while
incarcerated and was found in possession of pornographic
material. He also admitted to using hard drugs and alcohol
while in prison—a risk factor for sexual recidivism. Based
on an actuarial risk assessment tool, Gnirke’s risk for sexual
reoffending was assessed as “Moderate-High” (between the
81st and 90th percentile) relative to other adult male sexual
offenders.
The evaluation concluded with a number of
recommendations for Gnirke’s supervision and treatment.
One of these recommendations was that Gnirke not “view or
possess anything sexually explicit or suggestive, including
books, videos, magazine cut-outs, etc., especially if the
content reveals child sexuality, nudity, partial nudity, or
adult-child sexual contact.”
Relying on the discharge evaluation, Gnirke’s probation
officer sought to modify the conditions of Gnirke’s
supervised release. Of relevance here, the probation officer
recommended a special condition that Gnirke “not possess
any sexually explicit material involving children and/or
adults, as defined by 18 U.S.C. § 2256(2),” the federal statute
criminalizing possession and distribution of child
pornography. Gnirke objected to the modification of the
court’s conditions.
The district court held a hearing on the probation officer’s
proposed modifications in February 2013. At the hearing, the
court acknowledged that it had received and reviewed the
6 UNITED STATES V. GNIRKE
parties’ written arguments. The court described the proposed
condition regarding sexually explicit materials as “[to] not
possess child or adult pornography.” Gnirke did not
challenge the condition as applied to depictions involving
children but requested that it be limited to this particular
context.
The district court rejected Gnirke’s argument. The court
reasoned that, with sex offenders, “one leads to the other,”
presumably referring to adult pornography as the “one” and
child pornography as “the other.” It noted Gnirke’s
possession of adult pornography in prison and emphasized the
need to prevent future offenses. Overruling Gnirke’s
objection, the district court concluded: “I think there is a
connection between adult and child pornography and the
other things it leads to.” The court stated that “the underlying
fear is that [access to pornography] is going to lead somebody
to molest a kid.” The court therefore imposed a condition
that required that Gnirke: “[n]ot possess any materials such
as videos, magazines, photographs, computer images or other
matter that depicts ‘sexually explicit conduct’ involving
children and/or adults, as defined by 18 [U.S.C. §] 2256(2);
and not patronize any place where such materials or
entertainment are available.”
Gnirke appeals, arguing this condition of supervised
release was both procedurally and substantively
unreasonable.
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction under 28 U.S.C. § 1291 and
18 U.S.C. § 3742(a). “The government bears the burden of
establishing the necessity of any condition of supervised
UNITED STATES V. GNIRKE 7
release.” United States v. Wolf Child, 699 F.3d 1082, 1090
(9th Cir. 2012). Where the defendant properly objected to a
special condition of supervised release, we review the district
court’s imposition of the condition for an abuse of discretion.
Id. at 1089. This standard incorporates “‘considerable
deference’” to the district court’s conclusions regarding
supervised release conditions. Id. (quoting United States v.
Weber, 451 F.3d 552, 557 (9th Cir. 2006)). Our review is
limited to whether the condition was procedurally and
substantively reasonable. Id. at 1090. Finally, “[c]onditions
affecting fundamental rights . . . are ‘reviewed carefully.’”
Id. at 1089 (quoting United States v. Soltero, 510 F.3d 858,
866 (9th Cir. 2007)).
DISCUSSION
I. The district court did not commit procedural error.
To avoid procedural error, a district court must consider
the relevant statutory sentencing factors. United States v.
Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc). When the
court imposes a special condition of supervised release, the
relevant factors include “the nature and circumstances of the
offense and the history and characteristics of the defendant,”
the need for the sentence to “afford adequate deterrence to
criminal conduct,” the need to “protect the public from
further crimes of the defendant,” and the rehabilitation of the
defendant. 18 U.S.C. § 3553(a)(1), (2); 18 U.S.C.
§ 3583(d)(1). Procedural error occurs if the district court
“choose[s] a sentence based on clearly erroneous facts” or
“fail[s] adequately to explain the sentence selected.” Carty,
520 F.3d at 993. A sufficient explanation “permit[s]
meaningful appellate review” and “communicates that the
parties’ arguments have been heard, and that a reasoned
8 UNITED STATES V. GNIRKE
decision has been made.” Id. at 992. We evaluate the
sufficiency of the district court’s explanation on a case-by-
case basis. See United States v. Daniels, 541 F.3d 915, 921
(9th Cir. 2008).
A detailed explanation from the court is not always
required; in some cases, “adequate explanation . . . may also
be inferred from the [Pre-Sentence Report] or the record as a
whole.” Id. at 922 (internal quotation marks omitted). In
cases implicating a “particularly significant liberty interest,”
however, a specific explanation from the court is necessary,
and there is an additional hurdle: “‘the district court must
support its decision to impose the condition on the record
with record evidence that the condition of supervised release
sought to be imposed is necessary to accomplish’” the goals
of supervised release and “‘involves no greater deprivation of
liberty than is reasonably necessary.’” Wolf Child, 699 F.3d
at 1090 (quoting United States v. Stoterau, 524 F.3d 988,
1005 (9th Cir. 2008)).
A. It is unnecessary to decide whether the condition
as written implicates a “particularly significant
liberty interest.”
Gnirke argues that the special condition as written
infringes on a particularly significant First Amendment
interest by preventing him from accessing “a broad swath of
modern visual media, much of it containing literary, artistic,
or cultural significance.” We do not take Gnirke to argue that
there is a particularly significant liberty interest in accessing
obscene or pornographic materials. We have already held
that a defendant’s free speech rights may be infringed to
“effectively address [his] sexual deviance problem.” United
States v. Rearden, 349 F.3d 608, 619 (9th Cir. 2003) (internal
UNITED STATES V. GNIRKE 9
quotation marks omitted). And access to pornography is
clearly not a liberty interest on par with such significant
interests as associating with one’s life partner, see United
States v. Napulou, 593 F.3d 1041, 1047 (9th Cir. 2010),
“having contact with one’s children,” Wolf Child, 699 F.3d at
1091, or “being free of unwanted antipsychotic medication,”
United States v. Williams, 356 F.3d 1045, 1055 (9th Cir.
2004). Rather, Gnirke argues that the relevant interest is in
accessing other materials with significant First Amendment
value—including popular non-pornographic films, television
shows, and theater—that may be swept up by the condition,
and in visiting places where such materials are available. We
analyze the broad scope of the condition at length in
considering whether it was substantively reasonable. Because
we conclude that the condition should be construed to apply
only to sexually explicit materials the district court described
as “pornography,” it is unnecessary to consider here whether
the condition as written implicates a particularly significant
liberty interest.
B. The district court adequately explained its reasons
for imposing the special condition.
Gnirke argues the district court failed to explain how the
special condition relates to the goals of supervised release.
But it is apparent from the record that the district court
believed the condition was reasonably necessary, in light of
“the nature and circumstances of the offense and the history
and characteristics of the defendant,” to “protect the public
from further crimes of the defendant.” See 18 U.S.C.
§ 3553(a)(1), (2); 18 U.S.C. § 3583(d)(1). The court
articulated that “the underlying fear is that [access to
pornography] is going to lead somebody to molest a kid.”
The court also reviewed the parties’ written arguments.
10 UNITED STATES V. GNIRKE
Drawing on Gnirke’s prison discharge evaluation, the
government emphasized the need to prevent future sexual
offenses. The district court’s discussion of the condition was
adequate to permit meaningful appellate review, ensure the
parties’ arguments were heard, and give confidence that a
reasoned decision was made. See Carty, 520 F.3d at 992.
Gnirke also argues that no record evidence supported the
restriction on materials depicting sexually explicit conduct
involving adults. Because this argument is properly
characterized as addressing whether the condition was
substantively reasonable, we discuss it in that context.
II. The special condition is substantively reasonable if not
defined by 18 U.S.C. § 2256(2).
A district court may order a special condition of
supervised release that: (1) “is reasonably related” to the
crime, “the history and characteristics of the defendant,” and
the purposes of supervised release, including deterrence,
protection of the public, and treatment of the offender, see
18 U.S.C. § 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D);
(2) “involves no greater deprivation of liberty than is
reasonably necessary”; and (3) “is consistent with any
pertinent policy statements issued by the Sentencing
Commission.” 18 U.S.C. § 3583(d)(1), (d)(2), (d)(3).
Because the district court “has at its disposal all of the
evidence, its own impressions of a defendant, and wide
latitude,” we give “considerable deference to a district court’s
determination of the appropriate supervised release
conditions” under the abuse of discretion standard. Weber,
451 F.3d at 557 (internal quotation marks omitted). We take
into account “the totality of the circumstances presented to
the district court.” United States v. Collins, 684 F.3d 873,
UNITED STATES V. GNIRKE 11
887 (9th Cir. 2012) (internal quotation marks omitted). And
we carefully review conditions affecting fundamental rights.
Wolf Child, 699 F.3d at 1089.
A. The scope of the challenged condition.
The district court clearly stated its intention to restrict
Gnirke’s access to what it referred to as “pornography.” This
was consistent with the Sex Offender Treatment Program
psychologists’ recommendation. But the condition as written
restricts Gnirke’s access to depictions of adult sexual conduct
using a statutory definition of “sexually explicit conduct” that
Congress has applied only to depictions of children. This
definition encompasses much more than what is commonly
understood as pornography in the context of adult sexual
activity.
Under the condition imposed by the district court, Gnirke
may not possess any materials depicting “sexually explicit
conduct,” as defined by 18 U.S.C. § 2256(2), or patronize
places where such materials are available. This definition
comes from a statutory chapter specifically addressing the
sexual exploitation and abuse of children. Under the
provision:
“sexually explicit conduct” means actual or
simulated—
(i) sexual intercourse, including genital-
genital, oral-genital, anal-genital, or oral-anal,
whether between persons of the same or
opposite sex;
(ii) bestiality;
12 UNITED STATES V. GNIRKE
(iii) masturbation;
(iv) sadistic or masochistic abuse; or
(v) lascivious exhibition of the genitals or
pubic area of any person[.]
18 U.S.C. § 2256(2). Because the special condition
incorporates this particular statutory definition of “sexually
explicit conduct,” it prevents Gnirke from possessing any
materials depicting real or simulated sexual acts or
“lascivious” full-frontal nudity,2 and from going places where
he knows such materials are available. Such places might
include movie theaters, book stores, libraries, theaters, and
large retailers and grocery stores that sell magazines or R-
rated movies. The condition appropriately prevents Gnirke
from entering strip clubs and X-rated video stores—but it also
prevents him from setting foot inside his local Walmart, a
library that loans R-rated movies, or a movie theater showing
an R-rated film with a simulated sex scene (even if Gnirke
enters the theater to see a different film).
We are aware that conditions of supervised release are
read to “require an element of mens rea,” and that this
mitigates to some extent the danger that Gnirke’s ability to
patronize certain businesses will be limited. See United
States v. King, 608 F.3d 1122, 1128 (9th Cir. 2010). But
applying the standard literally, the average person will likely
have actual knowledge that most places selling or renting
DVDs—including local libraries—will stock materials
containing depictions of adult sexual acts or lascivious
2
Lascivious is defined as “tending to excite lust; lewd; indecent;
obscene.” Black’s Law Dictionary (9th ed. 2009).
UNITED STATES V. GNIRKE 13
displays of nudity. The breadth of the condition poses a
problem both for probation officers, who must decide what
constitutes a violation, and for Gnirke, who should not be left
guessing where he permissibly may go.
B. The district court’s intention to restrict Gnirke’s
access to “pornography” was reasonably related to
the goals of supervised release.
Gnirke argues that the special condition was not
reasonably related to the goals of supervised release. He
claims that “no evidence was presented that access to
sexually explicit material involving adults” would negatively
affect his rehabilitation or render him more likely to reoffend.
Gnirke does not challenge the restriction on his access to
materials depicting children.
In United States v. Bee, 162 F.3d 1232 (9th Cir. 1998), we
affirmed a condition of supervised release that was
similar—though not identical—to the condition that Gnirke
challenges. Bee was convicted of sexually molesting a
six-year-old girl, and, upon his release from custody, the
district court imposed a condition that he “not possess any
sexually stimulating or sexually oriented material as deemed
inappropriate by [his] probation officer and/or treatment staff,
or patronize any place where such material or entertainment
is available.” Id. at 1234 (alteration in original). We held
that this condition was reasonably related to the goals of
supervised release because “[t]he probation officer believed
and the district court agreed that this condition was necessary
to address Bee’s problems with deviant sexual behavior . . .
[and it was] therefore sufficiently related to the goal of
‘protect[ing] the public from further crimes of the
14 UNITED STATES V. GNIRKE
defendant.’” Id. at 1235 (third alteration in original) (quoting
18 U.S.C. § 3553(a)(2)(C)).
The district court’s rationale for restricting Gnirke’s
access to “pornography” is similarly reasonable in this case.
Gnirke was convicted of a sexual offense involving a young
child. While incarcerated for this crime, Gnirke refused to
participate in sex offender treatment and was found in
possession of pornography, among other infractions. He
admitted to using hard drugs and alcohol while in prison, a
factor that elevates his risk for sexual recidivism according to
the discharge evaluation. Accounting for this history, the
prison psychologists “place[d] [Gnirke] in the Moderate-High
(between the 81st and 90th percentile) risk category [to
reoffend] relative to other male sexual offenders.” Given
Gnirke’s egregious offense, his failure to participate in sex
offender treatment, and the psychologists’ recommendation,
we conclude the district court’s intention to restrict Gnirke’s
access to sexually explicit materials was reasonably related to
the protection of the public.
C. The condition as written deprives Gnirke of more
liberty than is reasonably necessary.
Gnirke also argues that the condition the court actually
imposed “infringes more on [his] liberty than is reasonably
necessary” to accomplish the goals of supervised release. See
18 U.S.C. § 3582(d)(2). He suggests that, in light of the
significant First Amendment interests at issue, the district
court should not have prohibited all depictions of adult sexual
conduct, or prohibited him from “patroniz[ing] any place
where such materials or entertainment are available.” For the
reasons explained below, we agree.
UNITED STATES V. GNIRKE 15
First, we acknowledge that the condition imposed on
Gnirke unquestionably implicates his First Amendment right
to access protected speech. See United States v. Curtin,
489 F.3d 935, 956, 959–60 (9th Cir. 2007) (en banc); see also
Stanley v. Georgia, 394 U.S. 557, 565 (1969) (“If the First
Amendment means anything, it means that a State has no
business telling a man, sitting alone in his own house, what
books he may read or what films he may watch.”). We have
said there is also no doubt that “a defendant’s [First
Amendment rights] may be abridged to effectively address
[his] sexual deviance problem.” Rearden, 349 F.3d at 619
(internal quotation marks omitted). Because a condition may
not restrict more liberty than is reasonably necessary under
§ 3582(d)(2), the scope of the challenged condition is the
focus of our analysis.
We have previously considered restrictions on sexually
explicit materials as a condition of supervised release. In
Bee, our court approved a condition that prohibited
possession of “sexually oriented material as deemed
inappropriate by [Bee’s] probation officer.” 162 F.3d at
1234. In United States v. Guagliardo, 278 F.3d 868 (9th Cir.
2002), our court held that a condition restricting access to
“pornography” was impermissibly vague. Id. at 872. In
Gnirke’s case, the district court tied the definition of adult
“sexually explicit conduct” to the statutory language in
18 U.S.C. § 2256(2), thereby encompassing virtually all
materials containing depictions of adult sexual conduct.
Images of adult sexual activity are ubiquitous in
advertisements and a variety of mainstream media. By
employing the language from a statute intended to apply only
to child pornography, the plain language of Gnirke’s
condition includes any depiction of actual or simulated adult
sexual intercourse, however fleeting or veiled, and regardless
16 UNITED STATES V. GNIRKE
of how insignificant it may be to the overall content of an art
exhibit, play, or movie. Because the condition also prevents
Gnirke from patronizing establishments where any depictions
of simulated adult sexual activity are available, he could
easily violate it by simply carrying on everyday activities like
shopping, seeing a mainstream movie, reading a mainstream
magazine, or watching television.
The government cites our decisions in United States v.
Rearden and United States v. Daniels. Neither is inconsistent
with the result we reach here. In Rearden, reviewing for
plain error, we upheld “a special condition that Rearden not
possess any materials depicting sexually explicit conduct as
defined in 18 U.S.C. § 2256(2)” where Rearden’s offense
consisted of transmitting pornographic images involving
sexual acts between “adult men and infant, prepubescent, and
pubescent boys, as well as the display of the genitalia of
boys.” 349 F.3d at 612. Rearden had collaborated with “a
dangerous pedophile,” and the offense resulted from
Rearden’s “interest in extremely vile and graphic depictions
of child rape and murder.” Id. at 620. The district court
determined that “limiting Rearden’s possession of materials
depicting sexually explicit conduct . . . furthered the goals of
rehabilitating him and protecting the public.” Id. Because we
have held that the phrase “sexually explicit conduct” as
defined in 18 U.S.C. § 2256(2) is neither unconstitutionally
“vague nor overbroad,” and given the facts of Rearden, we
found no plain error in the restriction preventing Rearden
from possessing legal adult pornography and pornographic
stories. Id. As we have explained, Gnirke may similarly be
prevented from possessing legal adult pornography.
Daniels concerned a prohibition on “possess[ing] any
materials, including pictures, photographs, books, writings,
UNITED STATES V. GNIRKE 17
drawings, videos, or video games, depicting and/or describing
‘sexually explicit conduct’ as defined in 18 U.S.C.
§ 2256(2).” 541 F.3d at 927. Daniels was convicted of
possession of child pornography, and he argued on appeal
that the condition involved a greater deprivation of his liberty
than was reasonably necessary. Id. Citing Rearden, we held
that the condition was not plainly erroneous, even though
Daniels was not involved with a dangerous co-defendant and
his pornographic interests were less extreme than Rearden’s.
Id. at 927–28.
There are at least two important distinctions between
Gnirke’s case, on the one hand, and Rearden and Daniels, on
the other. First, in both Rearden and Daniels, we reviewed
the district court’s rulings for plain error. “Under the plain
error standard of review, the appellant must show that:
(1) there was error; (2) the error committed was plain; (3) the
error affected substantial rights; and (4) the error seriously
affected the fairness, integrity, or public reputation of judicial
proceedings.” United States v. Gonzalez-Aparicio, 663 F.3d
419, 428 (9th Cir. 2011). An error “cannot be plain where
there is no controlling authority on point and where the most
closely analogous precedent leads to conflicting results.” Id.
(citation and internal quotation marks omitted). Because of
the lack of controlling authority on point, any error regarding
the scope of the condition in Daniels and Rearden would not
have been “plain” at the time those cases were decided.
Second, neither Rearden nor Daniels involved the
additional restriction found here: that Gnirke may “not
patronize any place where such [sexually explicit] materials
or entertainment are available.” This part of Gnirke’s
condition vastly expands its scope. Not only may he not
possess “any materials such as videos, magazines,
18 UNITED STATES V. GNIRKE
photographs, computer images or other matter that depicts
‘sexually explicit conduct’ involving children and/or adults,”
he is also severely restricted in where he may shop, acquire
information, and view art or entertainment.
Unlike Rearden and Daniels, Gnirke did object to the
portion of the condition imposed by the district court that
restricts his access to depictions of conduct involving only
adults. Our view is that it was within the scope of the district
court’s discretion to limit his access to child and adult
pornography—which the district court’s written order termed
“sexually explicit conduct”—but the condition actually
imposed sweeps too broadly by limiting Gnirke’s access to
non-pornographic depictions of “sexually explicit conduct”
involving only adults, and by prohibiting him from going
places where these materials or entertainment may be found.3
As written, the condition’s burden on Gnirke’s
constitutional rights is potentially great. The Supreme Court
recognizes that “[t]he portrayal of sex, e.g., in art, literature
and scientific works, is not itself sufficient reason to deny
material the constitutional protection of freedom of speech
and press.” Roth v. United States, 354 U.S. 476, 487 (1957).
“[I]t is one of the vital problems of human interest and public
concern.” Id. Applied literally, the language of the condition
would prevent Gnirke from viewing Oscar-winning films like
American Beauty and Brokeback Mountain, television shows
3
Contrary to the concurrence’s suggestion, we do not conclude that the
condition sweeps to broadly because we “equat[e] the district court’s use
of ‘sexually explicit conduct’ with ‘pornography.’” Rather, as we have
explained, we conclude the condition sweeps too broadly because it
defines “sexually explicit conduct” with reference to 18 U.S.C. § 2256(2)
and prohibits Gnirke from patronizing places where materials depicting
such conduct may be found.
UNITED STATES V. GNIRKE 19
like The Wire, or sexually explicit works of art that appear in
museums; yet such non-pornographic materials receive full
protection under the First Amendment. See Reno v. Am. Civil
Liberties Union, 521 U.S. 844, 874 (1997). Because the
condition also prevents Gnirke from patronizing places where
such materials are available, the burden it imposes extends
well beyond possession of what is commonly understood as
“pornography” and makes it much more likely that Gnirke
will unwittingly violate the condition. The government has
not made any specific showing why Gnirke’s access to non-
pornographic depictions of adults must be restricted in order
to serve the purposes of supervised release, and it is not
apparent from the record; therefore, we conclude that the
condition as written deprives Gnirke of more liberty than is
reasonably necessary.
Our conclusion is consistent with the reasoning of our
earlier cases, and with decisions from other circuits. In
United States v. Simons, the Eighth Circuit recognized that
special conditions that prohibit possession of pornographic
materials “have often withstood First Amendment
challenges” but nonetheless held that a condition prohibiting
the defendant “from possessing any material that depicts
nudity” involved a “greater deprivation of liberty than [was]
reasonably necessary.” 614 F.3d 475, 483, 485 (8th Cir.
2010). And the Seventh Circuit in United States v. Siegel,
citing Simons, remanded for a district court to reconsider a
similar condition restricting the possession of materials
containing nudity. 753 F.3d 705, 712–13 (7th Cir. 2014).4
4
The special condition here is both broader and narrower than the
conditions in Simons and Siegel. It is broader because it prohibits
patronage as well as possession. But its definition of “sexually explicit
conduct” is narrower than the blanket definition of “nudity” in those cases.
20 UNITED STATES V. GNIRKE
The Seventh Circuit suggested that the prohibition be
rephrased to encompass only “material that depicts nudity in
a prurient or sexually arousing manner,” which accords with
the commonly understood definition of pornography. Id. at
713.5
D. Limitation on the special condition.
The district court intended to restrict Gnirke’s access to
“child and adult pornography,” but by applying the definition
in 18 U.S.C. § 2256(2) to depictions of adult sexual activity,
5
The concurrence incorrectly suggests that our conclusion conflicts with
United States v. Mefford, 711 F.3d 923 (8th Cir. 2013), United States v.
Deatherage, 682 F.3d 755 (8th Cir. 2012), and United States v.
Thielemann, 575 F.3d 265 (3d Cir. 2009). As in Daniels and Rearden, the
conditions in Deatherage and Thielemann did not involve the restriction
that the probationer not patronize any place where sexually explicit
materials are available. See Deatherage, 682 F.3d at 762; Thielemann,
575 F.3d at 270. As we have explained, this part of Gnirke’s condition
vastly expands its scope.
In Mefford, the district court imposed the following two special
conditions: (1) “Defendant shall not access, view, possess, or have under
his control any pornography, including any material that depicts or alludes
to sexual activity, or sexually explicit conduct as defined by 18 U.S.C.
§ 2256(2)”; and (2) “Defendant shall not enter any location where
pornography, erotica, or adult entertainment can be obtained or viewed.”
Mefford, 711 F.3d at 926. In upholding these conditions, the Eighth
Circuit explained: “The district court intended that Mefford only be
prohibited from possessing or obtaining pornography . . . . The district
court explained that these ‘are limited restrictions that serve the purpose
of [§] 3553(a) while preserving the Defendant’s right to view and/or
possess non-obscene material that may contain nudity.’” Id. at 927. In
other words, the court upheld the condition because it understood it to be
limited to what is commonly understood as pornography. See id. at 928.
Here, we similarly uphold Gnirke’s condition as substantively reasonable
when construed as the district court intended.
UNITED STATES V. GNIRKE 21
the condition deprives Gnirke of more liberty than is
reasonably necessary. We therefore construe 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 Gnirke’s probation
officer. Gnirke may not possess such materials, nor may he
patronize any place where such materials or entertainment are
available. See United States v. Goddard, 537 F.3d 1087,
1089 (9th Cir. 2008) (construing a facially broad condition
more narrowly to avoid a greater deprivation of defendant’s
liberty than was reasonably necessary). Contrary to the
concurrence’s suggestion, we believe Gnirke’s condition is
“readily susceptible” to this limiting construction because it
brings the condition in line with what the district court clearly
intended.
The concurrence argues that we should remand for the
district court to craft a new condition, rather than narrowing
the condition on appeal. But both this court and the district
court have struggled to describe a special condition of release
prohibiting access to sexually explicit materials that is
sufficiently clear and not overbroad. We believe it is
appropriate to provide the district court with a workable
alternative rather than yet another directive to “try again.”
With respect to the construed condition, we recognize
that, as in Bee and every other case involving special
conditions of release, Gnirke’s probation officer and the
district court will have some degree of discretion to decide
which materials the condition restricts. Cf. Bee, 162 F.3d at
1234–35 (upholding condition preventing Bee from
22 UNITED STATES V. GNIRKE
possessing “sexually stimulating or sexually oriented material
deemed inappropriate by his probation officer and/or
treatment staff” and from patronizing places where such
material is available). The difficulty of defining
“pornography” with any degree of precision is inherent in the
nature of this condition of supervised release. Other courts
have had occasion to consider how to define the terms
“pornography” or “pornographic,” with varying degrees of
success.6 And we have suggested that “[t]he term
6
The Supreme Court’s decision in Miller v. California concerned
obscenity but recognized that “[t]he material we are discussing in this case
is more accurately defined as ‘pornography’ or ‘pornographic material’”
because that case concerned sex-related obscenity. 413 U.S. 15, 18 n.2
(1973). The Court’s legal definition of sex-related obscenity was
narrower than the dictionary definition it quoted for pornography: “a
depiction (as in writing or painting) of licentiousness or lewdness: a
portrayal of erotic behavior designed to cause sexual excitement.” Id.
Pornography is therefore a broader category than sex-related obscenity.
See Ashcroft v. Free Speech Coal., 535 U.S. 234, 240 (2002) (“As a
general rule, pornography can be banned only if obscene.”).
Others have tried to frame more focused legal definitions of adult
pornography. One influential strand of legal thought ties “pornography”
to “the graphic sexually explicit subordination of women,” but this
definition has not found favor with courts. See Am. Booksellers Ass’n,
Inc. v. Hudnut, 771 F.2d 323, 324–25 (7th Cir. 1985) (citing Catharine A.
MacKinnon, Pornography, Civil Rights, and Speech, 20 Harv. C.R.-C.L.
L. Rev. 1 (1985)), aff’d, 475 U.S. 1001 (1986). Another scholar has
required depictions of actual “physical abuse” with “the purpose and
effect of producing sexual arousal.” Cass R. Sunstein, Pornography and
the First Amendment, 1986 Duke L.J. 589, 592 (1986). These are attempts
at a definition of legally “regulable pornography,” see id. at 592–93, that
is, pornography that lacks protection under the First Amendment. Here,
we are concerned not with defining the scope of the First Amendment, but
with the more prosaic and functional question of how to avert the
potentially negative effects of pornography on an individual who has
committed sexual abuse on a child.
UNITED STATES V. GNIRKE 23
[‘pornography’] itself is entirely subjective; unlike
‘obscenity,’ for example, it lacks any recognized legal
definition.” Guagliardo, 278 F.3d at 872. But this does not
mean that pornography lacks a recognized definition in
society at large, however fuzzy its edges may be. Black’s
Law Dictionary defines “pornography” as: “Material (such as
writings, photographs, or movies) depicting sexual activity or
erotic behavior in a way that is designed to arouse sexual
excitement.” Black’s Law Dictionary (9th ed. 2009); see also
Oxford English Reference Dictionary 1128 (Rev. 2d ed.
2006) (defining pornography as “the explicit description or
exhibition of sexual subjects or activity in literature, films,
etc., intended to stimulate erotic rather than aesthetic or
emotional feelings”). This seems to coincide with the
common understanding of the term. There may be various
additions and qualifications one may wish to make, but it is
evident that, at a minimum, pornography is explicit material
intended to stimulate, arouse, or the like.
We have little doubt that this ordinary definition is
generally what the district judge had in mind when he
paraphrased the special condition as: “[t]o not possess child
or adult pornography.” And we note that the exercise of
discretion by Gnirke’s probation officer and the district court
in applying the revised condition will be subject to judicial
review to the same extent as other conditions of supervised
release.
CONCLUSION
Construed in the manner discussed in the previous
section, the district court’s imposition of the special condition
restricting Gnirke’s access to sexually explicit materials is
AFFIRMED.
24 UNITED STATES V. GNIRKE
M. SMITH, Circuit Judge, concurring in the judgment:
The question before the panel is whether the district court
abused its discretion in revising the conditions of Gnirke’s
supervised release. I agree with the majority that the district
court acted well within its discretion in imposing a condition
that prohibits Gnirke from “possess[ing] any materials . . .
that depict[] ‘sexually explicit conduct’ involving children
and/or adults, as defined by 18 U.S.C. § 2256(2); and . . .
patroniz[ing] any place where such materials or entertainment
are available.” However, I cannot agree that we must—or
even can—reach this conclusion by construing the condition
to say something that it plainly does not say. Moreover, in
rewriting the challenged condition to substitute its own
definition of “sexually explicit material” for the district
court’s undoubtedly permissible definition of the materials
Gnirke is prohibited from accessing, the majority disregards
the abuse of discretion standard and exceeds the scope of our
authority.
For these reasons, I respectfully concur only with the
judgment.
I. The District Court Acted Within its Discretion
The district court acted well within its discretion in
prohibiting Gnirke from accessing “[material] that depicts
‘sexually explicit conduct’ involving children and/or adults,
as defined by 18 U.S.C. § 2256(2)” and from “patroniz[ing]
any place where such materials or entertainment are
available.” The majority impugns the validity of the condition
by equating the district court’s use of “sexually explicit
conduct” with “pornography,” a term our court has found to
be unconstitutionally vague in the context of supervised
UNITED STATES V. GNIRKE 25
release conditions because “it lacks any recognized legal
definition.” United States v. Guagliardo, 278 F.3d 868, 872
(9th Cir. 2002). From this false premise, the majority
erroneously concludes that “the condition actually imposed
sweeps too broadly.” But the district court did not prohibit
Gnirke from possessing “pornography”; instead, it specified
the materials that Gnirke cannot access, and tied the condition
to the definition of “sexually explicit conduct” set forth in
§ 2256(2).
We review the imposition of conditions of supervised
release for abuse of discretion. United States v. Wolf Child,
699 F.3d 1082, 1089 (9th Cir. 2012). Any special condition
must be “reasonably related” to the goals of deterrence,
protection of the public, and rehabilitation of the offender.
18 U.S.C. §§ 3583(d)(1), 3553(a). In addition, the conditions
cannot involve any “greater deprivation of liberty than is
reasonably necessary for the purposes” of supervised release.
18 U.S.C. § 3583(d)(2). “The touchstone of reasonableness is
whether the record as a whole reflects rational and
meaningful consideration” of the relevant factors. United
States v. Rudd, 662 F.3d 1257, 1261 (9th Cir. 2011) (internal
quotation marks omitted).
As the majority explains, Gnirke molested a twenty-
month old baby who was left in his care, and was
subsequently convicted of aggravated sexual abuse, in
violation of 18 U.S.C. § 2241(c), and infliction of inhuman
punishment on a child, in violation of 18 U.S.C. § 13 and
California Penal Code § 273(d). Gnirke’s sister further
reports that Gnirke engaged in sexual conduct with her on at
least two occasions when she was a child. And it is
undisputed that Gnirke himself was a victim of sexual abuse.
During his incarceration, Gnirke refused to participate in sex
26 UNITED STATES V. GNIRKE
offender treatment, was found in possession of pornography,
failed drug treatment, was charged three times for possession
of drugs or alcohol, used heroin and marijuana, and had ten
instances of institutional misconduct.
In preparing Gnirke’s Discharge Evaluation, the Sex
Offender Treatment Program psychologist considered these
factors and “placed [Gnirke] in a moderate to high (between
81st and 90th percentile) risk category to reoffend relative to
other male sexual offenders.” The psychologist further
recommended intensive treatment focusing on “offense-
specific targets . . . [to] reduce the likelihood of further sexual
offending.” The psychologist specified that Gnirke “should
not view or possess anything sexually explicit or suggestive,
including books, videos, magazine [cutouts], etc.”
Following a hearing, the district court modified the
conditions of Gnirke’s supervised release to include a
condition that prohibits Gnirke from “possess[ing] any
materials . . . that depict[] ‘sexually explicit conduct’
involving children and/or adults, as defined by 18 U.S.C.
§ 2256(2); and . . . patroniz[ing] any place where such
materials or entertainment are available.” The record is thus
clear that the district court imposed this condition out of a
concern for public safety, to minimize Gnirke’s likelihood of
sexually violating another child, and to further Gnirke’s
rehabilitation.
As the majority observes, the challenged condition may
prohibit Gnirke from patronizing certain establishments, and
the condition reaches some forms of speech that are
constitutionally protected for most people. Nevertheless,
“[t]he district court has broad discretion in setting conditions
of supervised release, including restrictions that infringe on
UNITED STATES V. GNIRKE 27
fundamental rights.” United States v. Bee, 162 F.3d 1232,
1234 (9th Cir. 1998). Moreover, we have recognized that “[a]
defendant’s right to free speech may be abridged to
effectively address [his] sexual deviance problem.” United
States v. Rearden, 349 F.3d 608, 619 (9th Cir. 2003) (internal
quotation marks omitted).
For these reasons, we have previously upheld conditions
of supervised release that are nearly identical to the condition
before us. In United States v. Daniels, 541 F.3d 915, 927 (9th
Cir. 2008), and United States v. Rearden, 349 F.3d at 619, we
affirmed conditions of supervised release that prohibited the
probationer from possessing any materials depicting or
describing “sexually explicit conduct” involving children or
adults as defined in 18 U.S.C. § 2256(2). In United States v.
Bee, 162 F.3d at 1234, we upheld a condition that prohibited
the probationer from “possess[ing] any sexually stimulating
or sexually oriented material as deemed inappropriate by [his]
probation officer and/or treatment staff, or patroniz[ing] any
place where such material or entertainment is available.”
The majority concludes that these prior holdings are not
dispositive and that the challenged condition “sweeps too
broadly.” The majority reasons that we need not follow our
precedent because: (1) the conditions in Daniels, Rearden,
and Bee were reviewed for plain error, and (2) the conditions
in Daniels and Rearden did not include a provision that
prohibited the probationer from patronizing any place where
the prohibited materials were available. The majority’s
conclusion is inconsistent with our case law and also
contradicts that of other circuits.
Just because the conditions in Daniels, Rearden, and Bee
were reviewed for plain error does not mean that these cases
28 UNITED STATES V. GNIRKE
are devoid of precedential value. The condition at issue in
Bee restricted the probationer’s access to sexually explicit
materials and prohibited him from patronizing any place
where such materials are available. Id. In affirming this
condition, we did not merely hold that the district court did
not commit plain error. We specifically held that the
condition was substantively reasonable because “the
probation officer believed and the district court agreed that
this condition was necessary to address Bee’s problems with
deviant sexual behavior . . . [and it was] therefore sufficiently
related to the goal of ‘protect[ing] the public from further
crimes of the defendant.’” Id. at 1235 (quoting 18 U.S.C.
§ 3553(a)(2)(C)). We subsequently reaffirmed Bee’s holding
in United States v. Guagliardo, in which we explained that “a
probationer does not have an unqualified First Amendment
right to ‘sexually stimulating or sexually oriented materials.’”
278 F.3d 868, 872 (9th Cir. 2002) (quoting Bee, 162 F.3d at
1232).
Our sister circuits have also affirmed substantively
identical conditions. For example, in United States v.
Mefford, the Eighth Circuit rejected an overbreadth challenge
and upheld a condition of supervised release which stated that
the probationer “shall not access, view, possess, or have
under his control any pornography, including any material
that depicts or alludes to sexual activity, or sexually explicit
conduct as defined by 18 U.S.C. § 2256(2) . . . [or] enter any
location where [such materials] can be obtained or viewed.”
711 F.3d 923, 926–28 (8th Cir. 2013); see also United States
v. Deatherage, 682 F.3d 755, 762 (8th Cir. 2012) (upholding
a condition of supervised release which stated that the
probationer “shall not purchase, possess . . . or use any media
forms containing pornographic images or sexually oriented
materials including . . . materials containing ‘sexually explicit
UNITED STATES V. GNIRKE 29
conduct’ as defined in 18 U.S.C. § 2256(2)”); United States
v. Thielemann, 575 F.3d 265, 268 (3d Cir. 2009) (holding that
a condition that prohibited a probationer from “possess[ing]
and viewing . . . sexually explicit material, as defined in
18 U.S.C. § 2256(2)(A), does not violate the Constitution”).
In each of these cases, the court reviewed for abuse of
discretion, not for plain error, and each plainly held that the
challenged condition was not constitutionally overbroad.
Mefford, 711 F.3d at 926–28; Deatherage, 682 F.3d at 762;
Thielemann, 575 F.3d at 268.
In light of the egregious nature of Gnirke’s sexual
misconduct, the psychologist’s opinion that Gnirke is likely
to reoffend, and the psychologist’s recommendation that
Gnirke “not view or possess anything sexually explicit or
suggestive,” the district court acted well within its discretion
in imposing the challenged condition. The majority’s
unfounded conclusion that the condition “sweeps too
broadly,” is inconsistent with our case law and is also in
direct conflict with decisions of our sister circuits.
II. Rewriting the Challenged Condition is Improper
Even if the district court had erred in imposing the
challenged condition—which it did not—I would refrain from
rewriting the condition because it is not our role as an
appellate court to craft conditions of supervised release, and
doing so disregards the abuse of discretion standard and
exceeds the scope of our authority.
District courts have broad discretion in fashioning
conditions of supervised release. United States v. Gementera,
379 F.3d 596, 600 (9th Cir. 2004). On appeal, our only duty
is to determine whether the district court abused this
30 UNITED STATES V. GNIRKE
discretion. See Gall v. United States, 552 U.S. 38, 51 (2007)
(“The sentencing judge is in a superior position to find facts
and judge their import under § 3553(a) in the individual case.
The judge sees and hears the evidence, makes credibility
determinations, has full knowledge of the facts and gains
insights not conveyed by the record.”).
If we determine that the district court acted within its
discretion in imposing a condition of supervised release, we
affirm the condition. Id. If we determine that the district court
abused its discretion, we must vacate the condition and
remand to the district court with instructions that the district
court impose a revised condition. See, e.g., Wolf Child,
699 F.3d at 1102 (holding that conditions of supervised
release were overbroad and remanding for the district court
to “carefully examine what more narrowly circumscribed
conditions would be reasonably related to the statutory
purposes of [supervised release]”); United States v. Sales,
476 F.3d 732, 737 (9th Cir. 2007) (holding that condition of
supervised release was overbroad and remanding because
“the district court, in consultation with the probation officer,
is better suited to the job of crafting adequate but not overly
restrictive conditions of supervised release”).
Here, the challenged condition plainly states that “[Gnirke
shall n]ot possess any materials such as videos, magazines,
photographs, computer images or other matter that depicts
‘sexually explicit conduct’ involving . . . adults, as defined by
18 U.S.C. § 2256(2); and [shall] not patronize any place
where such materials or entertainment are available.” The
majority concludes that it was within the scope of the district
court’s discretion to limit Gnirke’s access to adult
pornography, but that “the condition actually imposed sweeps
too broadly.” Nevertheless, rather than vacating the condition
UNITED STATES V. GNIRKE 31
and remanding for the district court to narrow the condition’s
breadth, the majority rewrites the condition to substitute its
own definition of “sexually explicit conduct” for the district
court’s plainly stated definition. In so doing, the majority
exceeds the permissible scope of our review.
In order to justify rewriting the challenged condition of
supervised release, the majority cites to United States v.
Goddard, 537 F.3d 1087 (9th Cir. 2008). In that case, we
reviewed several conditions of supervised release. One
condition stated that the probationer “shall not add, remove,
upgrade, update, re-install, repair, or otherwise modify the
hardware or software on [his] computers, computer-related
devices, or their peripheral equipment . . . without the prior
approval of [his] Probation Officer.” Id. at 1090 n.3. We
concluded that this condition would be unworkable as a
“practical matter” if it were “broadly applied,” and we
narrowly construed the condition not to apply to “routine or
automatic” software modifications or upgrades. Id. at
1090–91. We further read a condition that the probationer
“shall use computers/devices only within the scope of his
employment” to apply only to the probationer’s use of
computers at work. Id. at 1090–91 (“[R]easonably construed
in context, [the condition] means that at work, [the
probationer] shall use computers and computer related
devices only within the scope of his employment.”).
As with any legal text, we may only impose a limiting
construction on a condition of supervised release if it is
“‘readily susceptible’ to such a construction.” Comite de
Jornaleros de Redondo Beach v. City of Redondo Beach,
657 F.3d 936, 946 (9th Cir. 2011) (en banc) (quoting Reno v.
Am. Civil Liberties Union, 521 U.S. 844, 884 (1997)). In
Goddard, the plain language of the challenged conditions was
32 UNITED STATES V. GNIRKE
fairly susceptible to a narrow reading, and our reading neither
conflicted with nor altered the conditions’ plain terms. By
contrast, the text of the condition before us specifically refers
to “sexually explicit conduct” and it adopts the definition of
“sexually explicit” found in 18 U.S.C. § 2256(2). I see no
way to read the condition as having any alternate meaning,
including the one the majority has assigned to it.
I am not aware of any precedent that permits us to redraft
conditions of supervised release as we see fit. Accordingly,
if the majority believes that the challenged condition is
overbroad—a conclusion with which I disagree—the proper
course would be to vacate the condition and remand to the
district court.
III. Conclusion
The district court did not abuse its discretion in imposing
a condition that prohibits Gnirke from “possess[ing] any
materials . . . that depict[] ‘sexually explicit conduct’
involving children and/or adults, as defined by 18 U.S.C.
§ 2256(2); and . . . patroniz[ing] any place where such
materials or entertainment are available.” I would affirm on
these grounds.
I am perplexed by the majority’s decision to exceed the
permissible scope of our review by rewriting a condition of
supervised release that is substantively identical to those that
we and our sister courts have affirmed on a number of
occasions.
For these reasons, I respectfully concur only with the
judgment.