United States v. Brune, No. 12–3322.

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtTYMKOVICH, Circuit Judge.
Citation767 F.3d 1009
PartiesUNITED STATES of America, Plaintiff–Appellee, v. Gustave Wilhelm BRUNE, Defendant–Appellant.
Docket NumberNo. 12–3322.
Decision Date19 September 2014

767 F.3d 1009

UNITED STATES of America, Plaintiff–Appellee
Gustave Wilhelm BRUNE, Defendant–Appellant.

No. 12–3322.

United States Court of Appeals, Tenth Circuit.

Sept. 19, 2014.

767 F.3d 1013

Tim Burdick, Assistant Federal Public Defender (Cyd Gilman, Federal Public Defender with him on the briefs), Office of the Federal Public Defender for the District of Kansas, Kansas City, KS, for Appellant.

James A. Brown, Assistant United States Attorney (Barry R. Grissom, United States Attorney, with him on the brief) Office of the United States Attorney, District of Kansas, Topeka, KS, for Appellee.

Before TYMKOVICH, BALDOCK, and PHILLIPS, Circuit Judges.


TYMKOVICH, Circuit Judge.

Gustave Brune repeatedly failed to update his sex offender status as required by Kansas and federal law. When he was arrested for these oversights, things got worse because the arresting agents found images of child pornography on Brune's computer. He was eventually indicted in federal court for failure to update the sex offender registry and possession of child pornography, and convicted on both charges.

Brune makes two separate constitutional challenges to his convictions. First, he asks us to find unconstitutional a subsection of the Sex Offender Registration and Notification Act (SORNA), 42 U.S.C. § 16913, which requires federally convicted sex offenders, among others, to register their status in states where they live, work, or study. Under SORNA, it is a criminal offense for any sex offender subject to the act's requirements to fail to register or keep the registration current. Brune argues that § 16913 exceeds Congress's authority under the Necessary and Proper Clause of Article I. Based on recent Supreme Court precedent, United States v. Kebodeaux, ––– U.S. ––––, 133 S.Ct. 2496, 186 L.Ed.2d 540 (2013), we disagree.

Second, Brune brings a facial challenge to 18 U.S.C. § 2252A(a)(5)(B), a statute that criminalizes possessing, or accessing with the intent to view, materials containing images of child pornography. Brune contends that the statute is unconstitutionally overbroad because it proscribes significant amounts of speech and conduct protected

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by the First Amendment. Because Brune fails to establish the substantial overbreadth needed to prevail on his facial challenge, we find the statute facially constitutional.

Exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM the district court's decision to deny both of Brune's motions to dismiss his indictment.

I. Background

Brune pleaded guilty in 2001 to a violation of 18 U.S.C. § 2252(a)(4)(B), which prohibits the possession of child pornography. He served twenty-seven months in federal prison and, upon completing his sentence, he was placed on supervised release.

In the late summer of 2004, Brune's contingent federal supervision was revoked because he violated a condition of his release. The violation subjected Brune to an additional twenty-one months in jail. In 2006, Brune completed his supplemental sentence and was released without federal supervision.

Although he secured the privilege of unsupervised release, Brune's freedom was not unconditional. As a result of his federal conviction under § 2252(a)(4)(B), Brune was required to register as a sex offender for life under the Kansas Offender Registration Act (KORA), K.S.A. 22–4901 et seq. KORA was enacted in 1994 as a result of Kansas's intent to comply with the federal Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act (the Wetterling Act), Pub.L. No. 103–322, §§ 170101–170303, 108 Stat. 1796, 2038–45 (1994), which in part required states to enact mandatory registration systems for sex offenders as a prerequisite for the receipt of certain federal funding. To fortify the safeguards underlying the Wetterling Act, Congress enacted SORNA in 2006, which required offenders such as Brune to register their status as a sex offender and keep that registration current. 42 U.S.C. § 16913(a). Failure to do so is a federal offense. 18 U.S.C. § 2250(a).

Between his 2006 release and 2011, Brune habitually failed to comply with his registration requirements. As relevant to this case, Brune does not dispute that he failed to register between August 2009 and early May 2011. His dereliction of the registration requirement for over twenty months violated SORNA's yearly registration requirements, not to mention the more stringent obligations under KORA.

After an investigation, federal officials charged Brune with a failure to register as a sex offender and issued an accompanying arrest warrant. During a search of his home incident to the arrest, government agents discovered images of child pornography on Brune's home computer. The government seized the computer and confirmed that Brune had accessed a webpage containing child pornography.

He was subsequently indicted for (1) failing to register under SORNA, 18 U.S.C. § 2250 ; and (2) unlawfully, knowingly, and intentionally accessing with the intent to view child pornography under 18 U.S.C. § 2252A(a)(5)(B). He unsuccessfully lodged constitutional challenges to the indictment in district court, and eventually pleaded guilty to the charges, reserving the right to bring this appeal.

II. Discussion

Brune contends the two statutes underlying his indictment offend the Constitution. First, he argues the Necessary and Proper Clause cannot sustain Congress's decision to enact SORNA's registration provisions. Second, he asserts the conduct prohibited by § 2252A(a)(5)(A) is unconstitutionally overbroad. For the reasons articulated

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below, we find both of Brune's contentions unpersuasive.

A. Constitutionality of SORNA

Brune contends his indictment should have been dismissed because Congress exceeded its constitutional powers in enacting SORNA. In particular, he argues Congress overstepped its enumerated powers because SORNA is untethered to the Necessary and Proper Clause of Article I of the Constitution, which “grants Congress the power to ‘make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers' and ‘all other Powers' that the Constitution vests ‘in the Government of the United States, or in any Department or Officer thereof.’ ” United States v. Kebodeaux, ––– U.S. ––––, 133 S.Ct. 2496, 2502, 186 L.Ed.2d 540 (2013) (quoting U.S. Const., art. I, § 8, cl. 18 ).

We review de novo the district court's denial of a motion to dismiss an indictment on constitutional grounds. United States v. Carel, 668 F.3d 1211, 1216 (10th Cir.2011). As a part of our de novo review, however, we must “presume that the statute is constitutional.” See id. (citing United States v. Plotts, 347 F.3d 873, 877 (10th Cir.2003) ). That deference requires “a plain showing that Congress has exceeded its constitutional bounds.” United States v. Morrison, 529 U.S. 598, 607, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000).

Brune's constitutional argument is at odds with the Supreme Court's recent decision in Kebodeaux. In that case, the Court rejected an as-applied challenge by a serviceman to SORNA's registration requirements. Kebodeaux was convicted by court-martial for having sex with a minor while on active duty in the United States Air Force. After serving his sentence, he was required to register as a sex offender under the Wetterling Act, but was not put on supervised release. When Kebodeaux failed to properly update his registration status, he was prosecuted under SORNA.

Kebodeaux argued that the Constitution did not allow the federal government to regulate federally convicted sex offenders' intrastate activities through registration requirements. Kebodeaux, 133 S.Ct. at 2500. The Supreme Court, however, found the statute was consistent with Congress's power under the Constitution's Necessary and Proper Clause. The Court held that, when affixed to Congress's power under the Military Regulation Clause, the scope of the Necessary and Proper Clause permitted Congress to enact SORNA's registration requirements. Id. at 2505. It did not matter that the sex offender was not on supervised release or otherwise free from direct supervision of the government. Id. By virtue of the ongoing federal registration requirements under the Wetterling Act, the Court explained, the government maintained a special relationship with Kebodeaux in perpetuity. Id. at 2504–05.

Brune is in a similar place to Kebodeaux. As part of his punishment for a violation of a validly enacted federal law, Brune was subject to civil registration requirements imposed on sex offenders. In fact, Brune, like Kebodeaux, has been subject to federal registration requirements—first under the Wetterling Act and then under SORNA1 —since his 2001 federal conviction. Due to this government supervision, indirect as it may be, Brune was never unconditionally released from federal oversight.

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As the Court did in Kebodeaux, we apply the principles underpinning the Necessary and Proper Clause...

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