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September 22, 2014
  United States v. Brune- Tenth Circuit
Case Name: United States v. Brune - Tenth Circuit

Headline: Tenth Circuit Holds Registration Requirement of SORNA is constitutional under Necessary and Proper Clause, and that the statute criminalizing the possession of child pornography, 18 U.S.C. 2252(A)(a)(5)(B), is constitutional under the First Amendment

Areas of Law: Criminal Law, Constitutional Law

Issues Presented:

1. Does the registration requirement of the Sex Offender Registration and Notification Act ("SORNA") violate the Necessary and Proper Clause of the United States Constitution?

2. Does 18 U.S.C. § 2252(A)(a)(5)(B) violate the First Amendment for being overbroad?

Brief Summary:

Defendant challenged his convictions for failure to register as a sex offender under the Sex Offender Registration and Notification Act and the Kansas Offender Registration Act, arguing that the statute was unconstitutional under the Necessary and Proper Clause. The court held that Defendant's argument was inconsistent with the Supreme Court's recent holding in United States v. Kebodeaux, 133 S. Ct. 2496 (2013).

Defendant also challenged his conviction for possession of child pornography under 18 U.S.C. § 2252(A)(a)(5)(B), arguing that the statute was overbroad, and potentially criminalized constitutionally protected speech. The majority held that Defendant did not carry his burden of demonstrating that protected speech was substantially chilled by the statute.

Judge Phillips concurred in part and concurred in the judgment. He asserted that because the statute specifically targeted individuals who intended to access child pornography, the statute was not overbroad, because access to child pornography is categorically excluded from First Amendment protection.

Extended Summary:

Defendant was arrested for failing to update his sex offender registration under Kansas and federal law. The arresting agents found child pornography on his computer when he was arrested, and as a result, he was convicted for failure to update the sex offender registry and for possession of child pornography.

Defendant challenged the constitutionality of the Sex Offender Registration and Notification Act, 42 U.S.C. § 16913, for exceeding Congress's powers under the Necessary and Proper Clause of Article 1. Defendant also challenged 18 U.S.C. § 2252(A)(a)(5)(B), which criminalizes images containing child pornography, for being unconstitutionally overbroad such that it prohibits speech and conduct protected by the First Amendment. The majority disagreed with the Defendant and affirmed his convictions.

Defendant pleaded guilty in 2001 to possessing child pornography, served 27-months in prison and afterward was placed on supervised release. His supervised release was revoked in 2004 because he violated a condition of release. He served another 21 months in jail. After serving this time, he was released without supervision, but had to register as a sex offender under the Wetterling Act, SORNA and the Kansas Offender Registration Act (KORA). Defendant failed to meet his registration requirements between 2006 and 2011, but relevant to this case was the time he failed to register between August 2009 and May 2011. After an investigation, Defendant was arrested at his home, which was searched incident to his arrest. The search led to the discovery of child pornography on his home computer. Defendant pleaded guilty to the charges but reserved his right to appeal.

The court addressed Defendant's Necessary and Proper challenge to the SORNA under a de novo standard of review. The majority found that his argument was inconsistent with the Supreme Court's decision in United States v. Kebodeaux, 133 S. Ct. 2496 (2013). In Kebodeaux, the Court reviewed Kebodeaux's conviction by court-martial for having sex with a minor while on active duty in the United States Air Force. Kebodeaux was not on supervised release, but was required to register as a sex offender under the Wetterling Act but failed to do so, and was prosecuted under SORNA. Kebodeaux argued that the Constitution did not allow regulation of intrastate activities of convicted sex offenders through registration, but reading the Necessary and Proper Clause in conjunction with the Military Regulation Clause, the Court found the statute constitutional.

The majority began its analysis by identifying the standard recognized in United States v. Comstock, 560 U.S. 126, 134 (2010), that the statute must be rationally related to the implementation of a constitutionally enumerated power. In doing so, it applied a two-part test - first, the statute must be an exercise of one of Congress's enumerated powers, and second, the statute must be necessary and proper for carrying out the enumerated power under the statute. In Kebodeaux, the first prong was met because Congress had the power to regulate the military, including sex crimes committed during military service. The second prong was met because the court found that the SORNA and the Wetterling Act were "eminently reasonable."

The majority noted that Kebodeaux had two dissenting opinions and two concurrences. Justice Thomas' dissent criticized the SORNA for being unconstitutional because it does not "carry into execution" any of Congress's enumerated powers. Kebodeaux, 133 S. Ct. at 2512 (Thomas, J., dissenting). Justice Thomas stated that the SORNA does not help implement the Military Regulation clause, or any other Article 1 power, and thus usurped the general police powers reserved for the states. Chief Justice Roberts' and Justice Alito's concurring opinions also noted this concern about usurping police powers, but found that the SORNA was necessary and proper to Congress's power "[t]o make Rules for Government and Regulation of the land and naval Forces." See id. at 2508 (Alito, J., concurring in the judgment) (quoting U.S. Const., art. I, § 8, cl. 14); see also id. at 2506 (Roberts, C.J., concurring in the judgment). The majority stated that even though case before it did not involve the Military Regulation Clause, Kebodeaux was binding. The majority stated that SORNA's relation to the Military Regulation Clause was not the only reason that the SORNA was constitutional.

Applying the two-part test to the present case, the majority found that SORNA survives Defendant's challenge. Defendant's original conviction was under Section 2242(a)(4)(B), which arises under the Commerce Clause, regulating trafficking of child pornography. Thus, because the underlying statute is constitutionally sound the SORNA is a rational extension of that congressional power under the Necessary and Proper Clause.

The majority then reviewed Defendant's challenge of 18 U.S.C. § 2252(A)(a)(5)(B) under a de novo standard of review. The court reviewed First Amendment precedent, explaining that certain types of speech, including defamation, incitement, obscenity, and pornography produced with real children were not protected by the First Amendment. In order to succeed on an overbreadth challenge, the majority stated that a challenger must show that the chilling effect on protected speech is both real and substantial, emphasizing that showing only some overbreadth is insufficient. Further, the majority explained that facial challenges to statutes are generally disfavored because they tend to counteract both judicial restraint and separation of powers as well as cause courts to anticipate a constitutional challenge before it may be necessary to answer a question of constitutionality. It also noted that the overbreadth doctrine should be applied sparingly, and as a last resort.

Defendant argued that the statute is overbroad because it did not specify that an individual "inten[d] to view" the pornography directly, and that the phrase "any other material" is too far-reaching. The majority noted that it must take a common sense approach to construing the statute, appreciating that some others may refrain from engaging in constitutionally protected speech because of its enactment, but also not speculating about hypothetical cases. It explained that it is the Defendant's burden to show that substantial overbreadth exists by showing protected materials that would be targeted by the statute. Because Defendant failed to produce any specific examples of protected speech showing that a considerable amount of speech is restricted. Defendant's hypothetical that a 500-page book with one image of child pornography would be outlawed did not rise to the level of showing that the statute outlaws a considerable amount of constitutionally protected speech. The court stated that regardless of whether the statute requires specific intent to view child pornography, it is not overbroad. It was sufficient that there were no specific examples of substantial overbreadth to decide that the statute is constitutional.

With regard to the "any other material" challenge, the court stated that it may look around to provide context for a term that is potentially unclear. It relied on the ordinary meaning of the terms "material" and "any other material" because they were not specifically defined in the statute. The majority noted that it is to construe terms in a limited fashion in order to avoid making a statute more broad than Congress intended. Further, the court applied ejusdem generis - the principle that when general words follow specific words in a statute, the general words are interpreted to mean only objects similar in nature to those enumerated in the specific words. Applying this principle to the present case, "any other material" cannot be more expansive than "book, magazine, periodical, film, videotape, [and] computer disk." Thus, the terms refer to tangible forms of media that "capture, store or deliver information as a means of communication." Here, the medium is the Internet.

The court also explained that statutes must be construed in a way that makes them constitutionally valid, if possible. If "any other material" were read expansively, it would effectively invalidate the scienter element of the statute and criminalize innocent conduct, by making Internet users who are aware that there is child pornography somewhere in the expanses of the Internet criminals the moment they log on to use the Internet. The court held that it was appropriate to construe "any other material" as meaning the "Internet" in the present case. Once the term "Internet" was removed from "any other material," the overbreadth challenge fell flat. There is no "realistic danger" that the statute will significantly chill protected speech, and the court was unaware of cases where the government was prosecuting Internet browsing under this statute.

Judge Phillips concurred in part and concurred in the judgment. He did not join the majority's conclusion that the statute requires "(1) knowing possession of, or accessing with intent to view, (2) any print, material, film, or computer media (3) containing an image of child pornography[.]" The majority concluded that the government must prove that the defendant intended to view material containing child pornography, not the child pornography itself. Judge Phillips' understanding of the statute is that the government must prove that the defendant intended to view an image of child pornography. Therefore, it was unnecessary for the majority to determine what qualifies as "any other material," because obtaining child pornography is excluded from First Amendment protection. He asserted that the statute only applies to people who are accessing child pornography and intending to view it, so there is no way that the statute could implicate protected speech.

To read the full opinion, please visit:

Panel: Tymkovich, Baldock, Phillips

Date of Issued Opinion: September 19, 2014

Docket Number: No. 12-3322

Decided: Defendant's convictions were affirmed.


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, Kansas, 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 for the District of Kansas, Topeka Kansas, for Appellee.

Author: Tymkovich

Case Alert Author: Ashley L. Funkhouser

Case Alert Circuit Supervisor: Barbara Bergman

    Posted By: Dawinder Sidhu @ 09/22/2014 04:54 PM     10th Circuit  

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