United States v. Gnirke
| Decision Date | 02 January 2015 |
| Docket Number | No. 13–50101.,13–50101. |
| Parties | UNITED STATES of America, Plaintiff–Appellee, v. David P. GNIRKE, Defendant–Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
John Charles Ellis, Jr. (argued), Amy Frances Kimpel, and Harini P. Raghupathi, Federal Defenders of San Diego, San Diego, CA, for Defendant–Appellant.
Charlotte E. Kaiser (argued) and Bruce R. Castetter, Office of the United States Attorney, San Diego, CA, for Plaintiff–Appellee.
Appeal from the United States District Court for the Southern District of California, Larry A. Burns, District Judge, Presiding. D.C. No. 3:95–cr–01122–LAB–1.
Before: SIDNEY R. THOMAS, Chief Judge, and MILAN D. SMITH, JR. and MORGAN CHRISTEN, Circuit Judges.
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.
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.
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 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.
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 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) ).
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 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) ).
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 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,...
To continue reading
Request your trial
-
United States v. Esparza, 15-50439
...Amendment concerns, remand was not necessary because the condition could be construed to avoid the problem. See United States v. Gnirke, 775 F.3d 1155, 1166 (9th Cir. 2015). Although the district court did not explicitly state that Condition 11 was limited to adult pornography, reading the ......