United States v. Brune

767 F.3d 1009, 2014 U.S. App. LEXIS 17964, 2014 WL 4654572
CourtCourt of Appeals for the Tenth Circuit
DecidedSeptember 19, 2014
Docket12-3322
StatusPublished
Cited by39 cases

This text of 767 F.3d 1009 (United States v. Brune) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Brune, 767 F.3d 1009, 2014 U.S. App. LEXIS 17964, 2014 WL 4654572 (10th Cir. 2014).

Opinions

TYMKOVICH, Circuit Judge.

Gustave Bruñe repeatedly failed to update his sex offender status as required by Kansas and federal law. When he was arrested for these oversights, things got worse because the arresting agents found images of child pornography on Brune’s computer. He was eventually indicted in federal court for failure to update the sex offender registry and possession of child pornography, and convicted on both charges.

Bruñe makes two separate constitutional challenges to his convictions. First, he asks us to find unconstitutional a subsection of the Sex Offender Registration and Notification Act (SORNA), 42 U.S.C. § 16913, which requires federally convicted sex offenders, among others, to register their status in states where they live, work, or study. Under SORNA, it is a criminal offense for any sex offender subject to the act’s requirements to fail to register or keep the registration current. Bruñe argues that § 16913 exceeds Congress’s authority under the Necessary and Proper Clause of Article I. Based on recent Supreme Court precedent, United States v. Kebodeaux, — U.S. -, 133 S.Ct. 2496, 186 L.Ed.2d 540 (2013), we disagree.

Second, Bruñe brings a facial challenge to 18 U.S.C. § 2252A(a)(5)(B), a statute that criminalizes possessing, or accessing with the intent to view, materials containing images of child pornography. Bruñe contends that the statute is unconstitutionally overbroad because it proscribes significant amounts of speech and conduct pro[1014]*1014tected by the First Amendment. Because Bruñe fails to establish the substantial overbreadth needed to prevail on his facial challenge, we find the statute facially constitutional.

Exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM the district court’s decision to deny both of Brune’s motions to dismiss his indictment.

I. Background

Bruñe pleaded guilty in 2001 to a violation of 18 U.S.C. § 2252(a)(4)(B), which prohibits the possession of child pornography. He served twenty-seven months in federal prison and, upon completing his sentence, he was placed on supervised release.

In the late summer of 2004, Brune’s contingent federal supervision was revoked because he violated a condition of his release. The violation subjected Bruñe to an additional twenty-one months in jail. In 2006, Bruñe completed his supplemental sentence and was released without federal supervision.

Although he secured the privilege of unsupervised release, Brune’s freedom was not unconditional. As a result of his federal conviction under § 2252(a)(4)(B), Bruñe was required to register as a sex offender for life under the Kansas Offender Registration Act (KORA), K.S.A. 22-4901 et seq. KORA was enacted in 1994 as a result of Kansas’s intent to comply with the federal Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act (the Wetterling Act), Pub.L. No. 103-322, §§ 170101-170303, 108 Stat. 1796, 2038-45 (1994), which in part required states to enact mandatory registration systems for sex offenders as a prerequisite for the receipt of certain federal funding. To fortify the safeguards underlying the Wetterling Act, Congress enacted SORNA in 2006, which required offenders such as Bruñe to register their status as a sex offender and keep that registration current. 42 U.S.C. § 16913(a). Failure to do so is a federal offense. 18 U.S.C. § 2250(a).

Between his 2006 release and 2011, Bruñe habitually failed to comply with his registration requirements. As relevant to this case, Bruñe does not dispute that he failed to register between August 2009 and early May 2011. His dereliction of the registration requirement for over twenty months violated SORNA’s yearly registration requirements, not to mention the more stringent obligations under KORA.

After an investigation, federal officials charged Bruñe with a failure to register as a sex offender and issued an accompanying arrest warrant. During a search of his home incident to the arrest, government agents discovered images of child pornography on Brune’s home computer. The government seized the computer and confirmed that Bruñe had accessed a webpage containing child pornography.

He was subsequently indicted for (1) failing to register under SORNA, 18 U.S.C. § 2250; and (2) unlawfully, knowingly, and intentionally accessing with the intent to view child pornography under 18 U.S.C. § 2252A(a)(5)(B). He unsuccessfully lodged constitutional challenges to the indictment in district court, and eventually pleaded guilty to the charges, reserving the right to bring this appeal.

II. Discussion

Bruñe contends the two statutes underlying his indictment offend the Constitution. First, he argues the Necessary and Proper Clause cannot sustain Congress’s decision to enact SORNA’s registration provisions. Second, he asserts the conduct prohibited by § 2252A(a)(5)(A) is unconstitutionally overbroad. For the reasons ar[1015]*1015ticulated below, we find both of Brune’s contentions unpersuasive.

A. Constitutionality of SORNA

Bruñe contends his indictment should have been dismissed because Congress exceeded its constitutional powers in enacting SORNA. In particular, he argues Congress overstepped its enumerated powers because SORNA is untethered to the Necessary and Proper Clause of Article I of the Constitution, which “grants Congress the power to ‘make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers’ and ‘all other Powers’ that the Constitution vests ‘in the Government of the United States, or in any Department or Officer thereof.’ ” United States v. Kebodeaux, — U.S. -, 133 S.Ct. 2496, 2502, 186 L.Ed.2d 540 (2013) (quoting U.S. Const., art. I, § 8, cl. 18).

We review de novo the district court’s denial of a motion to dismiss an indictment on constitutional grounds. United States v. Carel, 668 F.3d 1211, 1216 (10th Cir.2011). As a part of our de novo review, however, we must “presume that the statute is constitutional.” See id. (citing United States v. Plotts, 347 F.3d 873, 877 (10th Cir.2003)). That deference requires “a plain showing that Congress has exceeded its constitutional bounds.” United States v. Morrison, 529 U.S. 598, 607, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000).

Brune’s constitutional argument is at odds with the Supreme Court’s recent decision in Kebodeaux.

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Bluebook (online)
767 F.3d 1009, 2014 U.S. App. LEXIS 17964, 2014 WL 4654572, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-brune-ca10-2014.