United States v. David P. Gnirke

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-porno *1158 graphic depictions of adults—speech that is protected by the First Amendment. Construing the condition not to apply to such materials, we affirm.

BACKGROUND

In 1995 David Gnirke was living with his girlfriend and her three children at the U.S. Marine Corps Base at Camp Pendle-ton, 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…

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 “possessing] any materials ... that depict[ ] ‘sexually explicit conduct’ involving children and/or adults, as defined by 18 U.S.C. § 2256 (2); and ... patronizing] 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 undoubt *1168 edly 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…

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. 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…