United States v. Gnirke

Restrictions to non-pornographic sexually explicit material containing adults deprive a greater liberty interest than is reasonably necessary.

David P. Gnirke was convicted of aggravated criminal abuse of a child and corporal punishment or injury of a child. The district court sentenced Gnirke to 235 months of imprisonment followed by five years of supervised release. Gnirke’s supervised release was not subject to any restrictions regarding his access to pornographic material. Near the end of his sentence, prison psychologists recommended that Gnirke be restricted from accessing child or adult pornographic or sexually explicit material while on supervised release. Gnirke’s probation officer moved to modify the restrictions to include the recommendations. Gnirke objected. After a hearing, the district court agreed that Gnirke should be prohibited from possessing materials containing “sexually explicit conduct” of adults or children and from entering places where these materials are available. Gnirke appealed. The Ninth Circuit held that restrictions to non-pornographic sexually explicit material containing adults deprive a greater liberty interest than is reasonably necessary. Therefore, the panel applied the condition to prohibit materials showing any sexually explicit conduct of children, or any explicit sexually stimulating conduct of adults found inappropriate by Gnirke’s probation officer. AFFIRMED.