Friday, January 02, 2015

U.S. v. Gnirke (9th Cir. - Jan. 2, 2015)

The only published opinion -- thus far -- in California in 2015 involves the following sympathetic party:

"In 1995 David Gnirke was living with his girlfriend and her three children at the U.S. Marine Corps Base at Camp Pendleton, 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 area that the staff did not find to be consistent with Gnirke’s explanation. A doctor concluded that '[t]he best explanation for the penile injury is that hard suction was applied to the penis.'

Gnirke was tried and convicted of aggravated criminal abuse of a child under 18 U.S.C. § 2241(c), and corporal punishment or injury of a child under California Penal Code § 273d. He was sentenced to 235 months of imprisonment and five years of supervised release."

That's a bad start.

But Mr. Gnirke makes it even worse.  In prison, "Gnirke had refused to participate in a sex offender treatment program while incarcerated and was found in possession of pornographic material. He also admitted to using hard drugs and alcohol while in prison—a risk factor for sexual recidivism. Based on an actuarial risk assessment tool, Gnirke’s risk for sexual reoffending was assessed as 'Moderate-High' (between the 81st and 90th percentile) relative to other adult male sexual offenders."

Once it comes time to release Mr. Gnirke, the district court imposes various conditions as part of his supervised release.  The one at issue in this appeal orders him to "'not possess any sexually explicit material involving children and/or adults, as defined by 18 U.S.C. § 2256(2),' the federal statute criminalizing possession and distribution of child pornography."

The part of that condition that prevents him from possessing child pornography is obviously okay.  But you will notice that the restriction also prevents him from possessing any sexually explicit material that involves only adults.  On the theory, as the district court expressly held, that "one thing leads to another;" i.e., that if you possess adult pornography, that'll lead you to molest children.

But even that's not the issue here.  Rather, the condition also goes on to order Mr. Gnirke to "not patronize any place where such materials or entertainment are available."  Which, as the Ninth Circuit notes, "prevents him from setting foot inside his local Walmart, a library that loans R-rated movies, or a movie theater showing an R-rated film with a simulated sex scene (even if Gnirke enters the theater to see a different film)."

That's too much for Judge Christen.  Who holds (joined by Chief Judge Thomas) that that portion of the order is impermissible.

Judge Milan Smith doesn't agree.  He'd hold that even this provision is perfectly fine.  Gotta keep the perverts away from everything.  Even the local Walmart and library.