United States v. David P. Gnirke, 2015 U.S. App. LEXIS 25

Background

Defendant David Gnirke was convicted of aggravated child abuse for injuring a toddler and sentenced to imprisonment plus five years supervised release.
A prison Sex Offender Management Program evaluation diagnosed pedophilia, assessed Gnirke as moderate-high risk to reoffend, and recommended he not view or possess sexually explicit materials.
The probation officer sought a special condition barring possession of materials depicting “sexually explicit conduct” (using the § 2256(2) definition) involving children or adults and barring patronage of places where such materials are available.
The district court imposed that condition; Gnirke objected as to adult materials and patronage, arguing it was procedurally and substantively unreasonable and infringing First Amendment rights.
The Ninth Circuit affirms the restriction as to child sexual materials but construes the condition narrowly as to adult material: it applies to child materials per § 2256(2) and to adult materials only if explicitly pornographic or deemed inappropriate by the probation officer.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether district court procedurally erred by imposing the condition	Gnirke: court failed to tie condition to § 3553 factors and show record evidence for adult-material restriction	Government: condition supported by discharge evaluation and public protection need	No procedural error; court adequately explained rationale
Whether condition is reasonably related to supervised release goals	Gnirke: no evidence adult materials increase recidivism risk	Government: defendant’s history, prison possession of pornography, and risk assessment justify restriction	Condition reasonably related to goals for pornography generally
Whether condition as written violates First Amendment or is overbroad	Gnirke: condition sweeps in protected non‑pornographic speech and bars routine patronage (movie theaters, stores, libraries)	Government: prior precedents permit limits on sexually explicit materials for sex offenders	Condition as written is overbroad for adult non‑pornographic depictions; must be narrowed
Appropriate remedy for overbreadth	Gnirke: strike or narrow condition; seek clear standard	Government: defend original text; probation discretion sufficient	Court construes condition: prohibits child sexual depictions per §2256(2); adult depictions limited to pornographic/explicit materials deemed inappropriate by probation officer (patronage ban applies to these categories)

Key Cases Cited

United States v. Wolf Child, 699 F.3d 1082 (9th Cir. 2012) (government must show necessity of supervised-release condition affecting liberty)
United States v. Rearden, 349 F.3d 608 (9th Cir. 2003) (defendant’s free-speech rights may be abridged to address sexual deviance)
United States v. Bee, 162 F.3d 1232 (9th Cir. 1998) (upholding restriction on sexually oriented material and patronage as related to public protection)
United States v. Guagliardo, 278 F.3d 868 (9th Cir. 2002) (terms like "pornography" may be unconstitutionally vague in supervised-release conditions)
United States v. Daniels, 541 F.3d 915 (9th Cir. 2008) (condition prohibiting materials depicting § 2256(2) conduct reviewed on appeal)
United States v. Goddard, 537 F.3d 1087 (9th Cir. 2008) (narrowing construction of overbroad supervised-release conditions permissible when readily susceptible)
United States v. Mefford, 711 F.3d 923 (8th Cir. 2013) (upholding pornography/patronage restrictions as limited to commonly understood pornography)
United States v. Simons, 614 F.3d 475 (8th Cir. 2010) (prohibition of any material that depicts nudity can be an undue liberty deprivation)
United States v. Siegel, 753 F.3d 705 (7th Cir. 2014) (remanding conditions restricting nudity; suggesting limiting to prurient/sexually arousing depictions)
Stanley v. Georgia, 394 U.S. 557 (1969) (possession of private, non-obscene materials implicates First Amendment privacy protections)
Reno v. American Civil Liberties Union, 521 U.S. 844 (1997) (non-obscene sexual material receives First Amendment protection)