8th Circuit: A special condition of supervised released prohibiting possession of all materials containing nudity is stricken on overbreadth grounds
U.S. v. Simons, No. 09-2142 (8th Cir. July 21, 2010) | View opinion in Google Viewer
A special condition of supervised released prohibiting possession of all materials containing nudity is stricken on overbreadth grounds.
Before SMITH, BENTON, and SHEPHERD, Circuit Judges. Judge Shepherd wrote the opinion. Simons criminal record included convictions for attempted indecent liberties with a child and first degree rape. This appeal ensued after he pled guilty for failing to register as a sex offender. On appeal, Simons challenged four special conditions imposed upon him for supervised release: 1) no purchase, use, or possession of alcohol; 2) no contact with children under age 18; 3) proximity restrictions near various locations used primarily by children; and 4) no possession of any material that “contains nudity or that depicts or alludes to sexual activity or depicts sexually arousing material.” The Court of Appeals set for the appropriate test as follows:
Although a district court “is afforded wide discretion when imposing terms of supervised release,” United States v. Crume, 422 F.3d 728, 732 (8th Cir. 2005), 18 U.S.C. § 3583(d) limits that discretion, providing that a court may impose special conditions only if three requirements are met:
First, the special conditions must be “reasonably related” to five matters: 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, medical or other correctional needs. 18 U.S.C. §§ 3583(d)(1), 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D); United States v. Fields, 324 F.3d 1025, 1026-27 (8th Cir. 2003). Second, the conditions must “involve[] no greater deprivation of liberty than is reasonably necessary” to advance deterrence, the protection of the public from future crimes of the defendant, and the defendant’s correctional needs. 18 U.S.C. §§ 3583(d)(2), 3553(a)(2)(B), (a)(2)(C), (a)(2)(D). Finally, the conditions must be consistent with any pertinent policy statements issued by the sentencing commission. 18 U.S.C. § 3583(d)(3).
Crume, 422 F.3d at 733.
The court of appeals upheld all the special conditions, except the prohibition on materials containing nudity. The court rejected the condition as worded on overbreadth grounds. “As a whole, however, special condition 13 goes beyond those cases, prohibiting Simons from possessing any material that depicts nudity. By its terms, it would prohibit Simons 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.”
COMMENTS
