United States v. Brune

liаbility attorneys for the fees True extent it sumed MSC” to the of the part paid against Oil to defend itself claims for for its vicarious liabil- True Oil indemnifies Pennant, such, which, out, it it turned Pennant was 100% 710. As 249 P.3d at ity. Pennant, at responsible. Mid-Conti- 249 P.3d 710. contract” under an “insured discussed, damages previously as- For the we policy, and the reasons nent’s CGL by policy. apply Wyoming’s are covered determination that True sumed therein attorney fees are

Oil’s 2001-2005 covered Attorney Fees C. MSC, by necessarily triggers which coverage “damages” for Mid-Continent’s Court Wyoming Supreme agreed policy. that it to cover its CGL responsible Pennant also held de the costs True Oil incurred MSC for sum, AFFIRM the court’s district claims for which Pen fending against itself determination that True Oil is entitled fault, including the attor fully nant was payment, attorney recover its settlement to the date of ney prior fees it incurred pre- post- fees from 2001 to complaint. Mr. Norman’s amended Van judgment interest. any negligence, Id. (“Relieving True Oil denying attorney’s its fees but then against Pennant was

defending itself court.”). of discretion the district

abuse Wyoming

Relying Supreme on the Court’s MSC, regarding

decision the district attorney True fees from

court awarded Oil Mid-

October 2001 to March 2005. attorney the award of appeals Continent America, UNITED STATES of the time covering period prior fees Plaintiff-Appellee, complaint, Mr. Norman amended his Van “duty pay attorneys arguing and the insurance [MSC]

fees under BRUNE, Gustave Wilhelm Br. distinctly Aplt. are different.” policy Defendant-Appellant. at 42. 12-3322. No. did Wyoming While insurance interpret Mid-Continent’s Appeals, United States Court se, damages interpreted it what policy per Tenth Circuit. in the “insured contract” for were assumed provided coverage. which Mid-Continent Sept. well

Significantly, it held “Pennant was liability True vicarious risk

aware of Oh’s agreed indemnify

... and ... True Oil any damages resulting

for therefrom.”

Pennant, add- (emphasis 249 P.3d

ed); see (providing 1 at 24 ApltApp., vol. party a third

coverage attorney fees оf for, “[l]iability party to such or for

where of, party’s defense has also

the cost con- assumed in the same ‘insured

been ”).

tract’ The court held that Pennant as- brief) him on Attorney, with

States Attorney, Dis- Office of the United States Kansas, KS, for Topeka, Appellee. trict of TYMKOVICH, BALDOCK, and Before PHILLIPS, Judges. Circuit TYMKOVICH, Judge. Circuit up- repeatedly Gustave Bruñe failed to as required date sex offender status his was and federal law. When he Kansas got oversights, things for these arrested arresting agents found worse because on Brune’s images of eventually computer. He was indicted update for failure to the sex federal court possession of child registry offender pornography, convicted both charges. two separate

Bruñe makes constitutional First, his he challenges to convictions. asks to find unconstitutional subsec- us Registration and tion of the Sex Offender (SORNA), Act U.S.C. Notification § convict- requires federally which offenders, others, among register to ed sex live, they their in states where status work, SORNA, a study. it is or Under for sex offender sub- criminal offense to fail to ject requirements the act’s register keep registration current. or § Con- argues ‍‌​‌​‌‌‌‌​‌‌​‌‌‌‌​‌‌​​​‌‌‌​‌​​‌​‌​​​‌‌‌‌​‌‌‌‌‌​‌‌‍Bruñe 16913 exceeds authority Necessary and gress’s under re- of Article I. Based on Proper Clause precedent, United cent — Kebodeaux, -, States v. (2013), disagree. Burdick, Tim Assistant Federal Public Second, challenge brings Bruñe a facial Gilman, Public (Cyd Federal De- Defender 2252A(a)(5)(B), § to 18 a statute U.S.C. briefs), with him on the Office of

fender accessing possessing, that criminalizes Public Defender for Dis- the Federal view, materials contain- with the intent KS, Kansas, City, Ap- Kansas trict of Bruñe pornography. ing images of child pellant. the statute is unconstitution- contends that signif- Brown, ally proscribes because it United overbroad A. Assistant James pro- Grissom, and conduct speech icant amounts Attorney (Barry R. United States sex registеr tected the First Amendment. Because Bruñe to their status as a fails to the substantial cur- keep registration Bruñe establish offender and prevail 16913(a). § needed to on his facial overbreadth rent. 42 to do U.S.C. Failure challenge, facially we find the con- so is a federal offense. 18 U.S.C. 2250(a). § stitutional. jurisdiction under Exercising 28 U.S.C. Between his release and § we AFFIRM the district court’s Bruñe his habitually comply failed with deny of Brune’s decision both motions registration requirements. As relevant

to dismiss his indictment. case, dispute this Bruñe does not that he failed to between and register August Background I. early May His dereliction of pleaded guilty Bruñe in 2001 to a viola- registration twenty requirement for over 2252(a)(4)(B), § tion 18 U.S.C. which months yearly registra- violated SORNA’s possession prohibits pornogra- child tion requirements, not to mention the twenty-seven phy. He served months obligations stringent more under KORA. аnd, upon prison completing federal his investigation, After an federal officials sentence, he placed supervised was re- charged register Bruñe with failure to lease. a sex offender and issued an accompanying In the late summer Brune’s During arrest warrant. a search his contingent supervision federal was revoked arrest, home government incident to because he violated a condition of his re- agents images pornog- discovered subjected The lease. violation Bruñe to an raphy on home computer. Brune’s twenty-one jail. additional months in government computer con- seized 2006, Bruñe his completed supplemental webpage firmed that Bruñe had accessed a sentence and was released without federal containing pornography. supervision. (1) subsequently He was indicted fоr Although privilege he secured the un- SORNA, failing register supervised release, Brune’s freedom was 2250; unlawfully, U.S.C. know- unconditional. As result of his feder- ingly, intentionally accessing with 2252(a)(4)(B), al conviction under Bruñe intent to view child under 18 required register was to as a sex offender 2252A(a)(5)(B). U.S.C. He unsuccessful- life Regis- for under the Kansas Offender ly lodged challenges constitutional the to (KORA), seq. et tration Act K.S.A. 22-4901 court, eventually indictment in district and KORA was enacted in 1994 as a result of pleaded guilty charges, reserving the to comply Kansas’s intent to with the federal right bring appeal. the to this Wetterling Against Jacob Crimes Children Sexually Registration and Violent Offender II. Discussion (the Act), Wetterling Act Pub.L. No. 103- 322, §§ 1796, 108 Stat. Bruñe contends the two under- statutes (1994), in part required lying 2038-45 which his indictment offend the Constitu- mandatory First, to registration sys- argues states enact tion. he the and Necessary tems for sex as a prerequisitе Proper offenders Clause sustain Congress’s cannot the receipt for of certain federal decision funding. registration to enact SORNA’s fortify Second, To safeguards underlying provisions. the he the asserts the conduct Act, 2252A(a)(5)(A) Wetterling prohibited Congress enacted SORNA is unconsti- required tutionally which offenders such ar- overbroad. For the reasons sentence, below, Air Force. After serving we find both of Brune’s his he ticulated unpersuasive. required register was to as a sex offender contentions Act, Wetterling the was put under but not Constitutionality of A. SORNA supervised on release. Kebodeaux When update registration to properly failed his contends his indictment should Bruñe status, prosecuted he was under SORNA. ex Congress have been dismissed because in enact powers ceeded its constitutional argued Kebodeaux that the Constitution argues In ing particular, he SORNA. the government did allow federal to Congress its enumerated overstepped federally regulate convicted sex offenders’ is untethered powers because SORNA registration intrastate through activities Arti Necessary Proper Clause of the Kebodeaux, requirements. Constitution, “grants cle I the which Court, however, Supreme 2500. The ‘make Congress power all Laws found the statute was with consistent Con- necessary proper which shall power under gress’s the Constitution’s the foregoing into Execution carrying Necessary Proper Clause. ‘all Powers’ that Powers’ and that, Congress’s affixed pow- held when ‘in the Constitution vests Government Military Clause, Regulation er under the States, Department the United ” scope Necessary and Proper thereof.’ v. Ke or Officer United States permitted Congress to enact Clаuse SOR- — bodeaux, -, U.S. registration requirements. NA’s Id. (quoting U.S. It matter did not sex of- 18). Const., I, 8,§ art. cl. supervised was fender not on release or novo We review de the district supervision otherwise free from direct court’s denial of motion dismiss government. By Id. on- virtue grounds. on constitutional indictment registration requirements going federal Carel, 1211, 1216 668 F.3d United States Act, Wetterling the Court ex- (10th Cir.2011). part As a our de novo plained, government spe- maintained a review, however, “presume must relationship perpe- cial with Kebodeaux (cit the statute is constitutional.” See id. tuity. Id. at 2504-05. Plotts, ing United States v. F.3d (10th Cir.2003)). That re deference place Bruñe in a similar Kebo- quires plain showing Congress “a As of his for a part punishment deaux. constitutional exceeded its bounds.” Unit law, validly violation enacted federal Morrison, ed States v. subject registration was re- Bruñe civil quirements imposed sеx offenders. Bruñe, fact, Kebodeaux, like has been sub- argument is at Brune’s constitutional ject registration requirements— to federal de- odds with the Court’s recent Act Wetterling first under the and then case, In that the cision in Kebodeaux. under SORNA1—since his federal by rejected as-applied challenge Court this government super- conviction. Due to registration a serviceman to SORNA’s re- vision, be, may as it Bruñe was indirect by quirements. Kebodeaux was convicted unconditionally from never released feder- having sex with a minor court-martial oversight. in duty while on active the United States al problems. pose recognize Supreme We the conclu- Act does not constitutional 1. Court’s Kebodeaux, Wetterling at 2504-05. sion SORNA’s extension of the that Kebodeaux, by As the Court did we sent Justice Thomas criticized SORNA principles the the Nec apply underpinning itself as an unconstitutional means essary Proper is, and to determine “carry Clause does not further—that into exe- applied to constitutionality cution”—any as Congress’s SORNA’s enumerated Specifically, Bruñe. we “whether the (Thomas, J., ask powers. Id. at 2512 dissent- is ration words, statute constitutes a means that ing). In because SORNA’s related to of a ally implementation the registration requirements were not direct- constitutionally power.” enumerated implementing Military Regula- ed at the Comstock, v. (or United States 560 U.S. tion power), Clause other Article I explained, the dissent and Necessary the (2010); Maryland, see also McCulloch Proper protect could not Clause SORNA Wheat. L.Ed. 579 asapplied from Kebodeaux’s constitutional attack. at 2514. teth- proper Id. Without ering power, to a constitutional the dissent apply To answer quеstion, this (and partially reasoned that SORNA im- two-part See well-established test. Com permissibly) usurped general the police stock, S.Ct. 1949. power expressly that the Constitution re- First, the statute of must be a conviction the states. served to Id. at 2513. Congress’s valid exercise of enu one of Kebodeaux, Thus, powers. merated the degree, opin- To a lesser the concurring Supreme Congress’s found that ions Justice Chief Roberts and Justice power regulate military the under the Alito this expanding shared concern about authority Constitution included to im the scope power regis- the of Article I through penalties criminal pose for sex crimes com requirements, tration like those under during military mitted service. Kebo SORNA, that resemble some sort of “fed- deaux, 133 2503. power police prior eral over of- federal Second, if the stаtute of conviction is (Roberts, C.J., fenders.” See id. at 2508 constitutional, then the incidental concurring judgment). the Notwith- regulation necessary prop- must be and criticism, standing concurring this the carrying er for into the execution enumer- opinions both found SORNA constitutional power underlying ated of con- necessary proper as and Con- exercise of viction. An incidental requirement gress’s power “[t]o make Rules for the simply imposes obligation an additional re- Regulation Government and of the land sulting from the violation of federal law (Alito, and naval Forces.” See id. at 2508 within fits this Id. at framework. J., concurring in judgment) (quoting Kebodeaux, In registration require- Const., I, 14); art. cl. see also id. Wetterling ments under SORNA and (Roberts, C.J., concurring in the Act were an “eminently reasonable” exer- short, judgment). the concurrences Congress’s power cise Neces- fоund in the fact substance that the crimi- sary Proper Clause. Based on Id. this nal statute under which the government analysis, Court confirmed prosecuted Kebodeaux was pursu- enacted applied it constitutionality SORNA’s Military Regulation ant to the Clause Kebodeaux. sought scope holding to limit the under, arising less,

But decision in was far Kebodeaux cases more or identical pur- from unanimous and it drew two dissent- factual circumstances. But for our opinions ing and two poses, majority opinion us, concurrences binds on analysis. bear our principal analysis dis- its does not confine SORNA’s

1017 involving requirements tration are a limited and ra- constitutionality applications power, of Regulation congressional Clause. See tional extension as Military the only (majority opinion). Nothing permitted by Necessary Proper the and at 2503 id. Military the mаjority opinion isolates Clause. the as foundation the sole Regulation Clause Simply put, directs our con- Kebodeaux authority support of congressional clusion that as SORNA is constitutional SORNA. Bruñe, applied a sex federal offender

Thus, the well-rea- respectful while unconditionally who was never released by analysis urged the alternative soned supervision.2 from federal concurrences, we are con- and dissent Constitutionality B. of 18 U.S.C. that us to re- requires Kebodeaux vinced 2252A(a)(5)(B) § challenge to

ject Brune’s constitutional though even his statute convic- SORNA Bruñe next contends pursuant enacted to the Com- tion was 2252A(a)(5)(B)’s § unconstitutional over- merce Clause. breadth is evident on the statute’s face because, its despite only aim to reach child major Guided the Kebodeaux unintentionally pornography, it restricts an Necessary application of the and ity’s accessing from sizable amounts individual two-part Proper Clause’s test described protected speech.3 We review Brune’s above, we conclude that survives SORNA novo, Carel, challenge de 668 F.3d at Like challenge. the as-applied Brune’s “perform independent and we examina military sex offend punished protection tion of the record ensure Kebodeaux, original ers Brune’s speech rights.” City free Hawkins v. & conviction, 2252(a)(4)(B), 18 U.S.C. Denver, County F.3d 1285 170 scrutiny withstands constitutional plainly (10th Cir.1999). congressional authority an exercise of statute, turning to text of Before regulate under Commerce Clause applicable First Amendment we review trafficking pornogra interstate of child (“[T]he principles. Plotts, overbreadth phy. 347 F.3d 879 Com empowers Congress to crim merce Clausе 1. The First Amendment receipt inalize Internet.”); that Congress is well also United It established over see Wollet, authority cre to criminalize the Fed.Appx. v. 676 broad States Cir.2006) (same); (10th pornogra v. ation and dissemination United States (10th phy. Although pro the First Amendment 405 F.3d Cir. 866-67 Riccardi 2005) (same). making any law Congress And the constitu hibits from ‍‌​‌​‌‌‌‌​‌‌​‌‌‌‌​‌‌​​​‌‌‌​‌​​‌​‌​​​‌‌‌‌​‌‌‌‌‌​‌‌‍because speech,” the freedom of tionality underlying “abridging of the statute cannot Const, I, that freedom “does regis- amend. reasonably questioned, be SORNA’s conclusion, Necessary Proper join reaching 16913 under 2. this appellate applied collection of federal courts have Clause when sex offender -Kebodeaux, that, uniformly post Carel, found SOR- supervised release. See 668 F.3d registration requirements NA’s cannot con 1222. challenged Necessary stitutionally Proper Reyes, v. Clause. United States chal- this is faсial overbreadth Because (5th Cir.2013); United Fed.Appx. lenge, certain we find it irrelevant to consider Shoulder, (9th v. F.3d 948 States Elk completeness of Brune’s own with the issues Brunner, Cir.2013); States F.3d United indictment. (2d Cir.2013). upheld previously We 1018 categories speech,

embrace certain in Republican White, Party Minn. v. 536 defamation, incitement, cluding 765, 785, obscenity, 2528, U.S. 122 S.Ct. 153 L.Ed.2d (2002)). and pornography produced with real chil 694 Coal., Speech dren.” v. Free 535 Ashcroft 2. Facial Overbreadth5 234, 245-46, 1389, U.S. 122 S.Ct. 152 (2002). L.Ed.2d 403 Supreme The Court To succeed in an overbreadth upheld laws that pro criminalize the challenge, thereby invalidating all enforce duction and distribution of pornogra child law, ment of challenger “must show See, phy. e.g., Ferber, New York v. 458 that the potential chilling protect effect on 747, 3348, 102 U.S. S.Ct. 73 L.Ed.2d 1113 expression ed is ‘both real and substan ” (1982); Ohio, 103, Osborne v. 495 U.S. 110 820, tial’ Pugh, Jordan v. 425 F.3d 828 1691, 109 (1990). (10th Cir.2005) S.Ct. L.Ed.2d 98 (quoting v. City Erznoznik Jacksonville, 205, 216, 422 U.S. 95 S.Ct. But the fact that a statute is 2268, (1975)). 45 L.Ed.2d 125 Finding designed to suppress child pornography some only overbreadth part satisfies of the necessarily does not insulate it from an inquiry, as the challenger must also show challenge overbreadth pun where the “law punishes “law a ‘substantial’ ishes a ‘substantial’ amount protected protected amount of free speech, ‘judged speech, ‘judged free in relation to the stat in relation to the statute’s plainly legiti ” plainly legitimate ute’s sweep.’ Virginia ” Hicks, mate sweep.’ 118-19, Hicks, 113, 118-19, 539 U.S. 123 S.Ct. Broadrick, 123 S.Ct. 2191 (quoting (2003) 156 L.Ed.2d 148 (quoting 2908). U.S. 93 S.Ct. Oklahoma, 601, 615, Broadrick v. 413 U.S. (1973)). Supreme 93 S.Ct. Court has “vigor 37 L.Ed.2d 830 An ously requirement enforced the imprecise law that that a criminalizes stat access to ute’s overbreadth Nabokov’s Lolita or be substantial” in Woody both Allen’s Man absolute and relative hattan will not survive terms. constitutional United scru Williams, States v. tiny if even it also U.S. bans access to actual 1830, 170 (2008) S.Ct. hardcore images underage (empha victims. In Thus, words, original). sis even where a test for fair overbreadth does amount of display speech constitutional implicat extra teeth whenever the stat ed, ute we will not addresses an invalidate the statute area that has unless long been significant proscribed.4 Nonetheless, imbalance exists: a “universal and long-established tradition of prohibit comes a point [T]here at which the chill- ing certain conduct strong creates a pre ing law, effect of an overbroad signifi- sumption that the prohibition is constitu cant though may be, it justify cannot tional.” Nevada Comm’n on Ethics v. prohibiting all enforcement of that law— — Carrigan, -, particularly a law that “legiti- reflects 2347-48, 180 L.Ed.2d 150 (quoting mate ... interests in maintaining com- Ashcroft, example, the First Amendment overbreadth doctrine held that a statute ran afoul of the First provides exception general "an to the rule Amendment though due to overbreadth even person that a may to whom a statute goal it furthered criminalizing por- constitutionally applied challenge cannot nography. Ashcroft, 535 U.S. at grounds may on the that it be uncon S.Ct. 1389. stitutionally applied to others.” Massachu Oakes, 576, 581, setts v. 491 U.S. standing 5. Bruñe has facially challenge 2252A(a)(5)(B)’s constitutionality because England, consti- New controls over harmful prehensive (2006). 961, 163 For unprotected conduct.” tutionally social costs created there are substantial risks, “[a]ppliea- Conscious of these it doctrine when the overbreadth is, of the tion overbreadth doctrine ... a law to constitu- application of blocks manifestly, strong and it medicine” “has especial- or tionally unprotected speech, only employеd ... a sparingly been constitutionally ly unprotected conduct. Broadrick, 613, resort.” last 413 U.S. at line is 93 S.Ct. 2908. The bottom Hicks, 119, 123 2191 S.Ct. omitted) are best (citation Broadrick, challenges successful “facial when 413 (quoting Sabri, 608, infrequent.” 541 at 124 2908); U.S. 615, 93 see also U.S. at S.Ct. S.Ct. Williams, 292, U.S. at 128 1830 553 S.Ct. its

(“[I]nvalidating a some of law Challenge 3. Brune’s perfectly constitutional— applications mind, principles a law at conduct so With these particularly directed an step analyzing it made first overbreadth chal antisocial that has been criminal— effects.”). lenge challenged is to “construe the stat has obvious harmful ute; it is whether impossible determine moreover, in challenges, Facial a statute too far without first reaches overbreadth, cluding “are those based on knowing what covers.” disfavored for several reasons.” Wash. Williams, 293, at 553 U.S. 128 S.Ct. 1830. Grange Republican State v. Wash. Statе reach And even if the statute does some 442, 450, Party, 128 552 U.S. “protected expression, facial invalidation is 170 151 At a fundamental L.Ed.2d inappropriate if the remainder of the stat level, princi counteract challenges facial range easily ute ... a of covers whole judicial separa of ples both restraint and constitutionally proscriba identifiable and respect judicial With powers. tion Osborne, ... at ble conduct....” restraint, permit judges challenges facial (alteration origi in the S.Ct. 1691 interpretation of stat “premature issue nal) (internal quotation citation and marks factually utes on the basis of barebones omitted); also Estates v. see Hoffman records,” States, 541 U.S. Sabri United Estates, Inc., Flipside, ‍‌​‌​‌‌‌‌​‌‌​‌‌‌‌​‌‌​​​‌‌‌​‌​​‌​‌​​​‌‌‌‌​‌‌‌‌‌​‌‌‍455 U.S. Hoffman L.Ed.2d 1186, (2004) (alteration (internal incorporated) (1982) (“In to the over- challenge a facial omitted), and quotаtion marks and citation law, a vagueness of a court’s breadth principal the fundamental “that breach first task is to determine whether the en anticipate question courts neither a should amount of reaches substantial actment in advance of the ne of constitutional law If it constitutionally protected conduct. cessity deciding a rule it nor formulate not, challenge then the overbreadth does law broader than is re constitutional (footnote omitted)). must fail.” quired by precise facts to which it is (1) 2252A(a)(5)(B) punishes the Section applied,” Grange, 552 U.S. Wash. State of, possession accessing with knowing or omitted). (quotations at 128 S.Ct. 1184 (2) view, material, any print the intent to regarding separation powers, And (3) film, media, containing an computer or challenges “to nulli empower facial court image pornography: legislature’s than is fy more of a work knowingly possess- ... Any person who necessary,” disrupts which the intent es, with knowingly or intent democratically elected offi accesses people’s view, book, periodical, magazine, N. any cials. v. Planned Ayotte Parenthood film, disk, or videotape, computer 552 U.S. But S.Ct. 1184. image judicial pre material that an still also indulge contains we must “a assumption diction or pornography.... the statute’s very may existence cause before others not 2252A(a)(5)(B).6 18 U.S.C. constitutionally the court refrain from parties agree particu- on much. protected speech expression.” Broad lar, they agree requires that the rick, 93 S.Ct. 2908. to meet at following offender least show, is Brune’s burden to knowingly elements: he must access It “ ‘from the text of from (2) [the proscribed material; law] some he must in- fact,’ (3) actuаl that substantial overbreadth material; to view that tend he Hicks, 122, exists.” 539 U.S. at 123 S.Ct. know that the must material contains (alterations 2191 in original) (quoting the of child image pornography. Ass’n, N.Y. State Club City Inc. v. Newof Bruñe, however, argues that the stat- York, 1, 14, 2225, 108 101 S.Ct. ute’s overbreadth is both its revealed (1988)); see also Members of specify to that “in- failure the defendant Vincent, City Taxpayers v. Council 466 for to images por- view” the of child ten[d] 789, 801, 2118, 104 U.S. S.Ct. L.Ed.2d 80 directly, of nography po- and its use the (“[T]here 772 must be a realistic tentially far-reaching “any catchall other danger that the signifi statute itself will examine, reject, material.” We each cantly compromise recognized First contention. protections Amendment parties of not be facially fore the for it to be chal a. “With Intent to View” lenged on overbreadth grounds.”). Bruñe contends the is un burden, challenger carry For a this constitutionally it overbroad since does not identify he protected must that materials require that the specifically offender in inevitably targeted by would be stat- the image tend view an pornogra of child ute. v. City County See Faustin & phy. Denver, (10th 1192, 423 F.3d 1201 Cir. above, As highlighted our re 2005) (“[I]n this case present- Faustin has statutory view the with a text starts fair showing ed no evidence and made no that and commonsense assessment of the stat has policy Denver’s ever been applied Stevens, reach. ute’s United States v. 559 any prohibit expression on [highway] over- 1577, 176 L.Ed.2d than passes [clearly proscribable (2010) (reviewing cruelty 435 animal stat speech] that policy or Denver’s ever has ute). court “[A] should not invalidate a broadly been interpreted by public so the on its face simply may because [it] it way a such chilled protected criminalize some speech.” Ward speech.”); see also Sayer, United States v. Utah, (10th (1st v. 398 F.3d 1247 Cir. Cir.2014); 748 F.3d 435-36 Unit- 2005). Rather, Dean, guard we must that we do v. ed States 635 1206 F.3d “go beyond (11th Cir.2011). not the require Indeed, statute’s facial ex- overbreadth speculate ments and ‘hypothetical’ challenger about or a point ists where can “actual ‘imaginary’ Grange, cases.” permit Wash. State would faet[s]” that unconstitutional case, Although it foreign is not at issue in this state or commerce.” United States government Sturm, statute makes clear (10th Cir.2012) (en must F.3d 897 prove "the also has been banc) omitted). (quotation marks mailed, shipped transported or in inter- end, fact N.Y. “the mere that one can con of the statute. State applications Ass’n, 487 U.S. at impermissible applications Club ceive of some challenge where an overbreadth (rejecting it a statute is not sufficient render fаiled create record appellant susceptible challenge.” to an overbreadth to which the statute would existent clubs Taxpayers Vincent, unconstitutionally applied violation 104 S.Ct. 2118. Amendment). This requires First deny challenge, To Brune’s overbreadth con application to real-world “statute’s therefore, decide, not sug- we need he Stevens, duct, s.” hypothetical not fanciful if specific an individual with no in- gests, (Alito, J., U.S. at image pornogra- tent to view the dissenting). itself phy punished can be Court’s decision way, statute.8 Read either statute is v. Stevens is instructive. United States that, enough It is overbroad. case, the stat attacking the defendant us, record before we see no evidence that “depictions ordi ute demonstrated that impermissible applications ... nary and lawful activities constitute exist, 2252A(a)(5)(B), to extent subject materials to majority the vast of comparison are substantial un- Stevens, 473, 130 the statute.” speech protected, criminal the stat- added).7 con (emphasis By 1577 S.Ct. unquestionably ute This is not to covers. trast, examples Bruñe has not described of say that construction of Brune’s the stat- constitutionally speech might valuable unjustifiable; ute is frivolous or but it is he in punishable the statute as say that interpretations his offered do terprets provides specific it. He no exam little to of the expose overbreadth fall hypothetical his short of ples, and an or either absolute relative that a amount of establishing considerable See, e.g., Board Trustees sense. subject deserving is speech the statute of of Fox, 469, N.Y. v. 492 State Univ. U.S. argues For protection. example, Bruñe 485, 109 106 L.Ed.2d 388 S.Ct. theoretically a might the statute reach (1989). cоntextually, are And read we 500-page containing great a deal of book meaning readily is convinced the statute’s protected speech single image and a Br. But in and not overbroad.9 pornography. Reply child at 8. understandable Stevens, challengers previously emphasized, 7. In of the statute conclusion. As child speech actual pornography category submitted extensive documentation of a is unwor- movies, magazines, and books that would be thy protection. of First Amendment Brown v. social, - subject despite Ass’n, -, their ar- to the statute Entm't Merchs. U.S. 131 tistic, literary generally See Br. for value. (2011) 180 708 S.Ct. L.Ed.2d Stevens, Respondent, United States v. U.S. 559 categorical (comparing prohibition on 130 S.Ct. pornography to absolute child less areas (No. 08-769), 2009 WL 2191081. Furthermore, unprotected speech). consistently recognized that stat- ways reading many We that in 8. note Brune’s possession pornog- child banning the utes superior grammatically of the statute is raphy chiefly shielding are citi- not aimed Still, argument government’s. Brune’s fails speech zens from the content of the itself. because, accepting reading, even his the stat- Osborne, U.S. 495 See unconstitutionally is overbroad be- ute not Instead, underlying the cre- the harms legitimate sweep im- cause its far exceeds its pornography (including child ation of child permissible applications. abuse), motives its sexual the economic for market-making production, and the effects jurispru- 9. The thrust of the Court’s engendered by compel- raise strengthens its existence all dence our sum, grounds provide we see no unto itself. can look adminis- We around “strong potentially substance and context to a un tering the medicine” of over- Cain, Tyler clear 2252A(a)(5)(B) term. See U.S. breadth invalidation 662, 121 S.Ct. L.Ed.2d 632 because Bruñe cannot show substantial (2001) (“We ... do construe the mean an overbreadth in either absolute or rela- vacuum.”). ing statutory terms tive sense. Congress Since has left undefined the phrase word “any “material” and “Any b. Material” Other statute, material” in give the terms effort to Brune’s second establish “ordinary meaning.” their Kouichi Tani overbreadth is likewise insufficient. He —Ltd., guchi Saipan, v. Kan. Pac. U.S. argues phrase “any that the other materi -, 1997,2002, 182 al” expansive possibly is He limitless. (2012). An inquiry statutory into term’s phrase sweeps claims the into the statute’s meaning ordinary, must consider the con categories protected orbit broad of media temporary meaning at the time Congress by the Aplt. First Amendment. Br. at 26- enacted the statute. BedRoc Ltd. v. Unit (“Unlike movie—‘Material,’ a book States, ed when such a term includes a web site or 1587, 158 L.Ed.2d 338 products, other internet based does not many instances, Unlike simply re have a an beginning and end. It is not sorting dictionary to a definition in this self-contained.”). extreme, Taken to its ‍‌​‌​‌‌‌‌​‌‌​‌‌‌‌​‌‌​​​‌‌‌​‌​​‌​‌​​​‌‌‌‌​‌‌‌‌‌​‌‌‍especially helpful. case is not The multi position Brune’s that the poten ple preclude definitions of “material” tially criminalizes all Internet access. obvious, Nevertheless, unitary usage.11 isolation, in

When viewed it is the possibility that several workable defini “any difficult to that dispute other materi can properly tions of “material” imbue the al” might be to susceptible several mean to an expansive does not lead read ings—the fact, nominal form of the word ing “mate of this In term. the reverse is rial” is a that singular required flexible term defies true as we are to construe a description.10 But no statute phrase is island within a statutе with reference to ling congressional justify prohi ing depictions concerns that actual of pornography, child production possession bitions on the of indisputably which breed the collection of pornography. child See Paroline v. United Congress reasonably harms that seeks to — States, -, 1710, 1717, 134 S.Ct. eradicate. (2014); Osborne, see also 109-11, 1691; Ferber, 495 U.S. at likely Congress It "any is intended 757-60, 458 U.S. at 102 S.Ct. 3348. With vague other material’1 to remain somewhat in mind, these considerations encapsulate objects order to a multitude of 2252A(a)(5)(B) sufficiently is tailored to comprehensively that could not be and indi- support congressional valid interests without vidually See listed out. Antonin Scalia and overreaching to circumscribe substantial Bryan Garner, Reading (1st A. Law 33 protected speech. amounts of Nor does Ash ed.2012). case, change not result. In the the сroft portions Court struck down aof 11. Webster's Third New International Dictio- statute, pornography finding federal child nary, example, offers more than five nomi- pornography

that a ban on virtual was "material,” nal definitions of almost all of unconstitutionally overbroad because those conceivably—albeit which could some depictions only more contingent cultivate and indi fittingly others—apply statutory than to the Ashcroft, rect harm to minors. 250, 122 text. S.Ct. 1389. Not so here. Webster’s Third New International Section Dic- 2252A(a)(5)(B)'s target (1986). tionary is materials contain 1392 than, “book, expansive scope “in order to avoid no more accompanying words its the film, breadth to giving magazine, periodical, videotape, of unintended [and] the Searle Congress.” Jarecki G.D. computer spe- Acts disk.” Those terms denote Co., S.Ct. 367 U.S. cific, & conсrete forms media that are used L.Ed.2d 859 store, or information as capture, to deliver They are a means communication. end, doubt any fingering To this media, tangible illustrations of rather than limiting principle applicable about themselves. Brune’s assertion mediums material” is phrase “any other the residual that such a definition an effective creates by scrutinizing intrinsic satisfied quickly on the Internet is incorrect for this ban all, wording First statutory aids. very reason.12 The Internet is the medi- invites application the statute Internet, um; available in- content on the ejusdem generis: canon of construction of minimum, digi- cluding, at downloadable specific words words “general when follow from images tized enumeration, statutory general in a (URLs), uniform unique resource locators only ob are construed embrace words specific type of mediа that objects are jects similar nature to those specific targets.13 preceding enumerated Stores, Inc. v. City words.” Circuit

Adams, 532 U.S. addition, multi In as between 2A (quoting statute, interpretations of a ple reasonable Singer, on Statutes Norman J. Sutherland always prefer one that sustains we will (5th Statutory § 47.17 Construction constitutionality to not under one does ed.1991)). way, when Stated another validity. of constitutional presumption serves reading of an undefined term broad Corp., Laughlin NLRB v. Jones & Steel Congress’s spe to undermine decision L.Ed. 893 covers, cifically fist items that the statute (1937) (“The statutory cardinal principle only be de then the undefined term can to de save and construction pre items that fined with reference to the fact, con stroy.”). “every reasonable cede it. to, must be in order struction resorted unconstitutionafity.” 2252A(a)(5)(B), a statute from save ejusdem Applied — Sebelius, of Indep. Fed’n Bus. v. “any other material” Nat’l generis advises 2594, to, -, 2566, 132 S.Ct. construed in kind and U.S. should be as like 2252A(a)(5)(B) arguing for Internet government help in the careless 12. does not only "webpages” containing in statute is limited to the who stumbles across a URL user vague context. itself the Internet That term is gov- images pornography. But the of child types guidance provides little as to what prove must that the defendant ernment still subject the material to of Internet would a "knowingly” accessed Without that URL. unnecessary Because it to do so statute. is child-pornography-related "pattern overbreadth for the statute survive Brune’s immediately creation preceding the searches attack, interpret the we decline statute cache,” images similarly illegal suggested government. by the the manner evidence, wоuld government sufficient difficulty knowing access of showing have Dobbs, explained we States v. 13. As in United pro- further See id. 1205. As "material.” images au- Internet are downloadable on the scenario, against this and as have tection tomatically computer’s stored a cache addressed, already that the Bruñe concedes person visits on the Internet. when a URL requires the “know” that 1199, Cir.2011). offender to (10th One 629 F.3d 1201-02 por- images "material” contains presents might argue that this an over- fact supra problem respect nography. See with breadth (2012) (quoting Hooper v. ble” to our interpretation Cal and no “rewrit 648, 657, ifornia, 155 U.S. 15 S.Ct. 39 ing” Stevens, is required get there. See (1895)). Here, reading L.Ed. 297 the defi 481, 130 atU.S. S.Ct. 1577.14 “any nition of other material” expansively, Because the Internet as a whole is not a it, implicitly as Bruñe would have eviscer “material” within the meaning atеs the statute’s element of scienter and 2252A(a)(5)(B), degree to which the criminalizes innocent otherwise conduct—a provision catchall must tapered be further reading that smacks of overbreadth. See beyond the scope of an overbreadth Video, Inc., United States v. X-Citement challenge. simply, Put once the Internet 513 U.S. 130 L.Ed.2d is excluded from the tagalong phrase, “any Most users the Internet are material,” Brune’s overbreadth chal likely aware that child pornography exists lenge flat, to the statute regardless falls the Internet. Under Brune’s broad statute, interpretation of the what other these innocu materials are included within patrons, fully ous Internet Furthermore, aware that the that phrase. there is no “Internet” contains child pornography danger” “realistic that the statute as writ underworld, somewhere in its disreputablе ten will significantly protected chill speech, necessary would form the intent to violate and we have not been made aware of the statute they the moment logged on to government cases where the targeted access the Internet. That is not an obvi innocent browsing Internet or related ac text, ous interpretation of the reading tivity Williams, under this statute. See way it that duty violates our to interpret a 302, 128 S.Ct. 1830. fairly possible “where so as to medium, As a the Internet has undoubt- avoid substantial questions.” constitutional edly generated complications some in as- 464; Id. at see also Clark certaining the precise contours Martinez, of the First 371, 381, 125 543 U.S. S.Ct. Amendment in (2005) (“[Constitutional age an of technology that is constantly changing and difficult to avoidance] is tool for define. choosing between Sturm, 672 competing plausible interpretаtions F.3d at 901 (examining of a Cf. text, statutory resting extent on the to which “visual depictions” reasonable presumption that Congress did not intend refer to the substantive con- the alternative which raises serious consti tent of the image particular or a item doubts.”). tutional containing image purpose nexus). establishing jurisdictional a federal So, to ensure that the statute maintains Accordingly, particularly in the con- broadly applicable scienter element re- text of child pornography, Congress and statute, quired of a criminal see Morissette engaged Court have States, v. United ongoing effort to (1952), strike a careful 96 L.Ed. balance it is neces- between sary safeguarding constitutionally “any pro- understand other material” as something speech more tected precise enforcing legitimate than the “Inter- See, nеt.” limiting Williams, This criminal e.g., construction seems ob- laws. text, statutory but, 292-93, vious from the the U.S. at in 128 S.Ct. 1830. That care- least, 2252A(a)(5)(B) § is “readily suseepti- ful balance is disrupted not by context, vagueness 14. In overlaps bly vague, which to consider prescrip- whether the overbreadth, significantly long with limiting "[i]t has tion is amenable to a construction.” States, practice 358, 405, [the been Skilling Court's] ... be- v. United striking fore impermissi- (2010). a federal statute as 177 L.Ed.2d 619 means, because, by any in- 2252A(a)(5)(B) any pro- foreign or commerce again, § cluding by computer. falls the ambit that under speech tected comparison insubstantial (2012). the statute is 2252A(a)(5)(B) § 18 U.S.C. sweep. legitimate to its plainly majority concludes that the statute The “(1) proof knowing possession requires his bur- sufficiently has not met Bruñe view, (2) of, accessing with the intent to or otherwise. den demonstrate material, film, any computer or me- print dia, containing por- image an of child III. Conclusion In key respect, one that nography[.]”1 my does not reflect understand- recitation above, we expressed For the reasons 2252A(a)(5)(B). § ing of denials AFFIRM the district court’s majority’s of the The recitation elements to dismiss his indictment. Brune’s motions government prove must suggests that view only defendant intended to that the PHILLIPS, concurring in Judge, Circuit containing pornography- child the material in the concurring judgment. part and child itself. That’s pornography not the my view. I believe that I judgment I in the because concur 2252A(a)(5)(B) that proof § requires ap- as is constitutional agree that SORNA image intended view an defendant 18 U.S.C. to Bruñe that plied I point, pornography. child On this con- ‍‌​‌​‌‌‌‌​‌‌​‌‌‌‌​‌‌​​​‌‌‌​‌​​‌​‌​​​‌‌‌‌​‌‌‌‌‌​‌‌‍2252A(a)(5)(B) over- § withstands Brune’s a model that the statute is not cede under First Amend- challenge breadth Here, drafting. I would consid- legislative join of the pаrt I don’t one ment. But history help find Con- legislative er the the elements majority’s opinion discussing view, meaning. my the amend- gress’s 2252A(a)(5)(B). 2252A(a)(5)(B) demonstrates ment person: it a crime when makes requirement the intent-to-view at- image pornography.2 to the of child ac- taches possesses, knowingly or knowingly book, view, any with intent cesses require proof If indeed statute does film, videotape, magazine, periodical, pornog- child Bruñe intended to view disk, any or other material computer qualifies need not what raphy, we fine-tune image pornog- that contains other material to defeat Brune’s any mailed, shipped been or raphy that has challenge. The Amendment Su- First facili- using any means or transported or requests held preme or foreign or commerce ty of interstate “categorical- are pornograрhy child obtain com- affecting foreign or or interstate Amendment.” from the First ly excluded means, by Williams, com- including merce States v. See United mate- using puter, produced that was or (2008). words, mailed, shipped person In other who have been or

rials that gets no to view child in or interstate intends transported affecting 110-358, Brune, (2008) (designating op. Stat. slip 1. United States No. (10th accessing “Knowingly por- 767 F.3d WL 4654572 3 as section 2014). as a In a it adds Cir. footnote [DATE] pornog- view child nography with intent to which, nexus, I the interstate fourth element added)); S.Rep. No. (emphasis 110- raphy" agree, not at issue this case. at 5 Enhancing the Effective Prosecution No. Pornography Act Pub.L. Child protection under the First Amendment. applies only persons

Because the statute

accessing child pornography intending it, implicates pro- view the statute no speech

tected under the First Amendment accordingly is not overbroad. reasons,

For these I in part concur judgment.

concur in the America,

UNITED STATES of

Plaintiff-Appellee,

Crosby POWELL, Defendant-

Appellant.

No. 12-1500.

United Appeals, States Court of

Tenth Circuit.

Sept.

Case Details

Case Name: United States v. Brune

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Sep 19, 2014

Citation: 767 F.3d 1009

Docket Number: 12-3322

Court Abbreviation: 10th Cir.