United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-3712
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United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the District of
* Nebraska.
A. J. Kelly, *
*
Defendant - Appellant. *
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Submitted: May 12, 2010
Filed: November 22, 2010
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Before BYE, MELLOY, and SHEPHERD, Circuit Judges.
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BYE, Circuit Judge.
A jury convicted A.J. Kelly of being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1), and Kelly was sentenced to 115 months’
imprisonment followed by three years of supervised release. Kelly appeals his
conviction on the ground there was insufficient evidence of his possession or control
of a firearm. Kelly also challenges a special condition of his supervised release
barring him from possessing any material which “contains nudity or that depicts or
alludes to sexual activity or depicts sexual arousing material,” arguing this condition
is not reasonably related to the sentencing factors set forth in 18 U.S.C. § 3553(a) and
is overbroad in violation of his rights under the First Amendment. Although we reject
Kelly’s sufficiency-of-evidence argument and affirm his conviction, we find merit in
his arguments regarding the special condition and remand for further consideration of
such condition and resentencing.
I
While executing a search warrant at Kelly’s residence in Omaha, Nebraska, on
April 21, 2008, law enforcement discovered a Colt .22 caliber pistol, some
ammunition, and a 2007 receipt for the sale of ammunition, all wrapped in a towel and
placed inside three plastic bags. The items were found on top of a basement closet
high in the rafters. Also found in the basement was a Cricket telephone bill issued in
Kelly’s name. It is undisputed that the only two individuals who resided at the house
were Kelly and his elderly ailing father.
Upon discovery of the gun, Sergeant Jonathan Waller of the Omaha Police
Department read Kelly his Miranda rights and spoke to him after Kelly had agreed to
waive them. According to Waller, Kelly admitted during the interview the pistol had
been given to him by his grandfather seven years ago. Initially Kelly insisted he had
not touched the gun for years, but when Waller confronted him with the ammunition
sale receipt dated 2007, Kelly admitted to handling the gun a few times during the
intervening years. Although Kelly conceded he was a convicted felon, Waller
recalled, he did not believe the law prohibiting felons from possessing firearms
applied to the family heirloom pistol given to him by his grandfather.
At trial, Kelly vehemently disputed Waller’s account of their conversation. He
denied telling Waller the pistol was his grandfather’s gift or making any statements
concerning the handling of the pistol on prior occasions. According to Kelly, he took
responsibility for the gun only after Waller had threatened to charge Kelly’s father if
Kelly himself did not claim the gun. Speculating about the potential owner of the gun,
Kelly noted his grandfather had lived at the house several years ago and three of his
siblings, too, had access to the house during the relevant period.
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Kelly was indicted on June 18, 2008, on two counts: felon in possession of
firearm and a criminal forfeiture count under 18 U.S.C. § 924(d). He was convicted
on the first count following a single-day jury trial; he was found guilty on the
forfeiture count by the judge. On November 16, 2009, the district court sentenced him
to 115 months’ imprisonment, the upper point of his 92-115 months Guidelines range,
and imposed a three-year term of supervised release, subject to several special
conditions of supervision. Kelly is to serve his sentence consecutive to the 35 to 50
years’ sentence he received on a state-court conviction for sexual assault of a child
earlier that year. Apparently because Kelly had two sexual assault convictions, the
district court restricted his access to sexually explicit materials through a broadly-
phrased provision challenged on this appeal. Kelly timely appealed both his
conviction and his sentence.
II
We begin with the easier question of whether Kelly’s conviction was supported
by sufficient evidence. “We review a challenge to the sufficiency of evidence de
novo, considering the evidence in the light most favorable to the government.” United
States v. Gentry, 555 F.3d 659, 664 (8th Cir. 2009). Because it does not appear Kelly
moved for judgment as a matter of law or for a new trial, the court could review the
claim of insufficient evidence for plain error. United States v. Anderson, 570 F.3d
1025, 1029 (8th Cir. 2009); Boone v. Moore, 980 F.2d 539, 542 n.3 (8th Cir. 1992).
However, because the record is not entirely clear about these procedural facts and
because the government does not assert forfeiture of the issue, we choose to apply the
usual standard for evaluating sufficiency-of-evidence claims. See United States v.
Ojeda-Estrada, 577 F.3d 871, 875 (8th Cir. 2009) (choosing to overlook potential
forfeiture of full review of the sufficiency-of-evidence claim “out of an abundance of
caution” where both parties were uncertain as to whether Rule 29 motion was ever
made and the transcript was unreliable due to certain irregularities). Thus, we must
affirm the conviction if “any rational jury could have found the defendant guilty
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beyond a reasonable doubt.” Id. at 874 (citing United States v. Inman, 558 F.3d 742,
747 (8th Cir. 2009)).
“Felony possession of a firearm requires proof of three elements: (1) a prior
felony conviction; (2) knowing possession of a firearm; and (3) an interstate nexus.”
United States v. Jones, 266 F.3d 804, 813 (8th Cir. 2001). Kelly lodges his
sufficiency-of-evidence challenge only with respect to the second, knowing
possession element. In support of his argument, he points to “inconclusive” results
of the DNA testing and asserts that Sergeant Waller’s testimony concerning Kelly’s
confession is unverified and unreliable.
We make short work of Kelly’s argument. Whether well-founded or not,
Kelly’s doubts about Waller’s credibility are not for us to resolve. “It is axiomatic
that we do not review questions involving the credibility of witnesses, but leave
credibility questions to the jury.” United States v. Montano, 506 F.3d 1128, 1133 (8th
Cir. 2007) (internal quotation marks and citation omitted). As it was free to do, the
jury in this case chose to credit the testimony of Sergeant Waller that Kelly had
admitted to being the pistol’s owner. See United States v. One Star, 979 F.2d 1319,
1321 (8th Cir. 1992). The jury was also entitled not to attach excessive significance
to the “inconclusive” results of the DNA testing, especially where those results did not
positively exclude Kelly, and indeed found Kelly’s DNA in several locations on the
pistol. Therefore, we conclude Kelly’s conviction for being a felon in possession of
a firearm was supported by sufficient evidence.
It leaves Kelly’s second claim for relief – the argument that the district court
exceeded its discretion in imposing special condition of supervision 15. The condition
in question prohibits Kelly from
possess[ing] [or] hav[ing] under his . . . control any material, legal or
illegal, that contains nudity or that depicts or alludes to sexual activity
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or depicts sexually arousing material. This includes, but is not limited
to, any material obtained through access to any computer, including a
computer for employment purposes, or any other material linked to
computer access or use.
Judgment at 5.
District courts have broad discretion in imposing conditions of supervised
release, as long as each condition “1) is reasonably related to the sentencing factors
set forth in 18 U.S.C. § 3553(a); 2) involves no greater deprivation of liberty than is
reasonably necessary for the purposes set forth in § 3553(a); and 3) is consistent with
any pertinent policy statements issued by the Sentencing Commission.” United States
v. Bender, 566 F.3d 748, 751 (8th Cir. 2009) (citing 18 U.S.C. § 3583(d) and United
States v. Boston, 494 F.3d 660, 667 (8th Cir. 2007)) (internal quotation marks
omitted). In Kelly’s view, the condition in question fails both the first and the second
prong of the test.
We first address Kelly’s argument as to special condition 15 not being
reasonably related to § 3553(a) sentencing factors. We review the condition for abuse
of discretion. United States v. Davies, 380 F.3d 329, 332 (8th Cir. 2004). “A
condition is reasonably related to the statutory factors if tailored to the nature and
circumstances of the offense, the defendant’s history and characteristics, the
deterrence of criminal conduct, the protection of the public from further crimes of the
defendant, and the defendant’s educational, vocational, medicinal, or other
correctional needs.” United States v. Fenner, 600 F.3d 1014, 1026 (8th Cir. 2010)
(internal quotation marks and citation omitted). Courts can impose special conditions
of supervised release not directly related to the offense for which the defendant is
being sentenced where “the special conditions are related to another offense that the
defendant previously committed.” United States v. Smart, 472 F.3d 556, 559 (8th Cir.
2006) (approving the imposition of sex-offender-related conditions as part of a
sentence for felon in possession of a firearm where the defendant was previously
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convicted of two sexual abuse offenses, was still on probation for one of them, and
was sought on an arrest warrant for violating the conditions of probation). However,
in crafting any special conditions, district courts must be careful to conduct an inquiry
“on an individualized basis,” looking at the specific facts of the defendant’s criminal
history and his particular offenses. United States v. Davis, 452 F.3d 991, 995 (8th Cir.
2006). Courts may not impose special conditions categorically on all individuals
convicted of certain offenses. Id. Following this principle in United States v. Davis,
we invalidated a condition effectively preventing the defendant from having
unsupervised contact with his own daughter where there was no evidence the
defendant was guilty of child abuse and the court imposed the condition solely on the
basis of the defendant’s underlying conviction for receipt of child pornography. Id.
at 995-96. Similarly, in United States v. Bender, we disapproved a special condition
prohibiting the defendant convicted of a sex crime from possessing sexually
stimulating materials based on the district court’s abstract belief that sex offenders
“need to have a very tight rein” and have “[no] business reading a Playboy magazine.”
566 F.3d at 752. Instead, we require a particularized showing of the need for the
condition in each case.
Our review of the record in Kelly’s case indicates the district court intended
simply to “follow the special conditions of supervised release set out in the sentencing
recommendation.” The sentencing recommendation does not shed better light on the
reasons for imposing special condition 15. The probation officer recommended this
and other sex-offender-related conditions “because it is unclear what conditions his
state sentence will impose on him.” Although Kelly lodged specific objections to
several conditions, including special condition 15, the court summarily overruled all
objections, leaving for the probation office to decide whether any of the conditions
were relevant or necessary at a later time.
The lack of ad hoc findings in this case violates the principle of individualized
fact-finding mandated by Bender. No more granular than the district court’s analysis
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of the condition, the probation officer’s rationale for the restriction was based solely
on the character of Kelly’s previous convictions – the reasoning prohibited by this
court in Davis. Deficient in these respects, the condition fails the requirement of
reasonable relationship to the sentencing factors.
Turning to the related contention that the proscription in question involves
greater deprivation of liberty than is reasonably necessary and is overbroad in
violation of Kelly’s First Amendment rights, we review the district court’s actions de
novo. United States v. Asalati, 615 F.3d 1001, 1006 (8th Cir. 2010). Notwithstanding
broad discretion of the court to fashion special conditions of supervised release, “we
are particularly reluctant to uphold sweeping restrictions on important constitutional
rights.” United States v. Crume, 422 F.3d 728, 733 (8th Cir. 2005).
No one would dispute the well-established proposition that obscene speech is
not covered by the First Amendment and may therefore be proscribed. See Roth v.
United States, 354 U.S. 476, 485 (1957). The mercurial test for defining obscenity is
set forth in Miller v. California:
(a) whether the average person, applying contemporary community
standards would find that the work, taken as a whole, appeals to the
prurient interest; (b) whether the work depicts or describes, in a patently
offensive way, sexual conduct specifically defined by the applicable state
law; and (c) whether the work, taken as a whole, lacks serious literary,
artistic, political, or scientific value.
413 U.S. 15, 24 (1973) (internal quotation marks and citations omitted).
It is likewise undisputed that “nudity alone is not enough to make material
legally obscene.” Jenkins v. Georgia, 418 U.S. 153, 161 (1974). “[W]here a ban
could apply to any art form that employs nudity, . . . a defendant’s exercise of First
Amendment rights [is] unconstitutionally circumscribed or chilled.” United States
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v. Loy, 237 F.3d 251, 266 (3d Cir. 2000); see also United States v. Simons, 614 F.3d
475, 483 (8th Cir. 2010) (citing Erznoznik v. City of Jacksonville, 422 U.S. 205, 208-
12 (1975)). Guided by this principle, we recently invalidated a special condition of
supervised release prohibiting the defendant, a registered sex offender, from
possessing “any material, legal or illegal, that contains nudity or that depicts or alludes
to sexual activity or depicts sexually arousing material.” Simons, 614 F.3d at 483.
We were concerned with the breadth of such a provision, which, if applied
mechanically, would prohibit the defendant from “viewing a biology textbook or
purchasing an art book that contained pictures of the Venus de Milo, Michelangelo’s
David, or Botticelli’s Birth of Venus, all of which depict nudity.” Id. We also
rejected the suggestion, urged by the government, that we could entrust the task of
curing constitutional infirmity for each individual application of the condition to the
probation office. Id. at 485.
Our decision in Simons alone would be fatal to special condition 15. The
language of special provision 15 is virtually identical to the provision invalidated in
that case. Even so, we write separately to emphasize a more basic reason why the
condition in question is overbroad. While the focus of our opinion in Simons was on
depicting sexual activity, alluding to sexual activity provides an even more persuasive
ground for invalidating special provision 15, since it encompasses an even broader
swath of materials.1
The verb “to allude” means “to refer casually or indirectly; make an allusion.”
Random House Webster’s College Dictionary (2d ed. 1999). The noun “allusion” is
1
Additionally, assessing whether materials “allude” to sexual activity calls for
the exercise of subjective judgment that makes the condition vulnerable to a void-for-
vagueness challenge. However, because Kelly did not pursue this argument on
appeal, we will not address it here. Cf. Caspari v. Bohlen, 510 U.S. 383, 389 (1994)
(implying that courts do not have an obligation to raise sua sponte a constitutional
issue that is not of jurisdictional significance).
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in turn defined as “a passing or casual reference to something, either directly or
implied; the act of alluding.” Id. The proscription on materials alluding to sexual
activity, then, comprises not only materials that depicting sexual activity –which, by
and large, are limited to video, still-image, or sculpture formats – but also print
materials, however benign and devoid of lascivious ethos, which make a passing
reference to sexual activity.
Caught within the net cast by this phrase would be the Bible, with its “Thou
shalt not commit adultery” directive, see Exodus 20:14, and other references to
copulation contained in abundance in the Old Testament, see, e.g., Genesis 19:30-36
(a story of Lot’s daughters “laying” with their father and getting pregnant as a result);
Genesis 38:13-24 (a story of Tamar trading sex with Judah for ownership of a goat);
Genesis 38:8-10 (the sin of Onan, who “spilt his seed upon the ground” rather than try
to impregnate his brother’s wife, as his brother asked him to); numerous works of
classical literature – like Anne Frank’s The Diary of a Young Girl – which Kelly
could not even prescreen given the absence of sexual content rating system for books;
and, most perversely, laws outlawing certain forms of sexual conduct and, for that
matter, even this very opinion. The sweeping reach of this proscription is magnified
by its strict-liability phrasing, which makes Kelly responsible for all materials in his
possession, even if he has not read or looked at them. Worse, the rule would prevent
Kelly from even possessing contraceptives, thereby threatening his constitutionally
protected privacy right to decide “‘whether to . . . beget a child.’” Carey v. Population
Servs., Int.’l, 431 U.S. 678, 685 (1977) (quoting Eisenstadt v. Baird, 405 U.S. 438,
453 (1972)). These few examples demonstrate the condition imposed on Kelly has
a “substantial range of applications to activity protected by the First Amendment.”
Turchick v. United States, 561 F.2d 719, 721 (8th Cir. 1977). Despite other
“unprotected activities it legitimately prohibits,” such condition is constitutionally
overbroad. Id.
Recognizing the overbreadth problems posed by this phrasing, the government
has previously conceded the point in a similar case. United States v. Cabot, 325 F.3d
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384, 386 (2d Cir. 2003) (approving of the government’s concession that a condition
barring the defendant from possessing matter that “depicts or alludes to sexual
activity” or “depicts minors under the age of eighteen” is too broad). In this case,
however, the government chose to resist Kelly’s arguments by emphasizing the
reprehensible nature of his misconduct. See Red Br. at 12 (“The Special Condition
may be extraordinary, but so is the defendant.”). But convicted individuals “do not
forfeit all constitutional protections by reason of their conviction.” Bell v. Wolfish,
441 U.S. 520, 545 (1979). Even for those imprisoned, “[t]here is no iron curtain
drawn between the Constitution and the prisons of this country.” Wolff v.
McDonnell, 418 U.S. 539, 555-56 (1974). Since a convicted individual does not shed
his right to freedom of speech and religion under the First and Fourteenth
Amendments, Bell, 441 U.S. at 545 (citing Pell v. Procunier, 417 U.S. 817 (1974);
Cruz v. Beto, 405 U.S. 319 (1972); Cooper v. Pate, 378 U.S. 546 (1964)), the
government’s attempt to rescue the condition is unavailing.
III
For these reasons, we affirm Kelly’s conviction but vacate special condition 15
and remand to the district court for further proceedings consistent with this opinion.
SHEPHERD, Circuit Judge, concurring in part, dissenting in part, and concurring in
the judgment.
I am pleased to concur with the majority’s decision holding (1) that there was
sufficient evidence to support Kelly’s conviction for possession or control of a firearm
and (2) that the district court failed to make an individualized showing of the need for
special condition 15 in this case. Further, I agree with the majority’s action of
affirming the conviction but vacating special condition 15 and remanding to the
district court.
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I dissent from the majority’s extended discussion as to the overly broad nature
of special condition 15 as our decision in United States v. Simons, 614 F.3d 475 (8th
Cir. 2010), alone, is sufficient to invalidate the special condition.
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