May 19, 2019

Tenth Circuit: Sex Offender Registration Requirements are Necessary and Proper to Regulate Child Pornography

The Tenth Circuit Court of Appeals issued its opinion in United States v. Brune on Friday, September 19, 2014.

Gustave Wilhelm Brune pleaded guilty in 2001 to possession of child pornography. He served 27-months in federal prison, after which he was placed on supervised release. In 2004, he violated a condition of his release and was incarcerated for an additional 21 months. In 2006, he completed his sentence and was released without supervision but was required to register as a sex offender for life under the Kansas Offender Registration Act (KORA) and the national Sex Offender Registration and Notification Act (SORNA). He was required to keep his registration current under both Acts.

Between 2006 and 2011, Brune repeatedly failed to comply with the registration requirements. After an investigation, federal officials charged Brune with failure to register as a sex offender and obtained an arrest warrant. A search of his home incident to the arrest revealed child pornography images on Brune’s computer and that he had accessed a webpage containing child pornography. He was indicted for failing to register under SORNA and accessing with intent to view child pornography under 18 U.S.C. § 2252A(a)(5)(B). He lodged unsuccessful constitutional objections to the charges and eventually pleaded guilty, reserving the right to appeal. On appeal, he argued (1) the Necessary and Proper clause cannot sustain Congress’s decision to enact SORNA; and (2) the conduct prohibited under 18 U.S.C. § 2252A(a)(5)(A) is unconstitutionally overbroad.

Addressing the first argument, the Tenth Circuit analyzed the Supreme Court’s decision in United States v. Kebodeaux, 133 S. Ct. 2496 (2013). In Kebodeaux, the Supreme Court determined that sex offender registration requirements did not violate the Necessary and Proper clause because Congress has the authority to impose punishment for sex offenders and the sex offender registration is necessary and proper to carry out Congress’s power. Applying the Court’s rationale to Brune, the Tenth Circuit found that SORNA survives Brune’s challenge. Brune’s original statute of conviction “plainly withstands constitutional scrutiny as an exercise of congressional authority under the Commerce Clause to regulate the interstate trafficking of child pornography. . . . And because the constitutionality of the underlying statute cannot be reasonably questioned, SORNA’s registration requirements are a limited and rational extension of congressional power, as permitted by the Necessary and Proper Clause.”

As to the second argument, Brune asserted that 18 U.S.C. § 2252A(a)(5)(A) is overbroad because it contains the phrase “or any other material that contains an image of child pornography.” Brune argues that anyone who accesses the internet could be subject to prosecution under § 2252A(a)(5)(A) because there is child pornography on the internet. The Tenth Circuit rejected this argument. Read contextually, the meaning of the statute is easy to ascertain. And, even if there were some ambiguity in the meaning of the statute, the court’s preference is always to support the constitutionality of a statute.

The Tenth Circuit affirmed the district court’s denials of Brune’s motions to dismiss.

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