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United States v. Buie

United States Court of Appeals, Eighth Circuit

December 27, 2019

United States of America Plaintiff- Appellee
v.
David R. Buie Defendant-Appellant

          Submitted: November 15, 2019

          Appeal from United States District Court for the Western District of Missouri - Kansas City

          Before SHEPHERD, GRASZ, and KOBES, Circuit Judges.

          SHEPHERD, CIRCUIT JUDGE.

         A federal jury convicted David R. Buie of one count of possession of child obscenity in violation of 18 U.S.C. §§ 1466A(b)(1) and (d). Buie appeals his conviction, arguing that the criminal statute under which he was convicted is overbroad and vague in violation of the First and Fifth Amendments to the United States Constitution. Having jurisdiction under 28 U.S.C. § 1291, we affirm the judgment of the district court.[1]

         I.

         On July 11, 2017, a staff member at the Blue Ridge Branch of the Mid-Continent Public Library in Kansas City, Missouri discovered that a library patron had printed visual images depicting what she believed to be a boy engaging in sexual acts with his mother. The staff member determined that the library card number associated with the print job belonged to Buie. On July 12, 2017, Federal Probation Officer Sandra Hille was notified about the July 11th incident at the library.[2] The following day, Officer Hille visited Buie at his residence. Buie consented to a search of his home, and Officer Hille found printouts of visual images on Buie's kitchen table. The visual images, introduced at trial as Government's Exhibit 3a, are detailed, full-color drawings of human beings, which Officer Hille described as depicting "minors engaging in sexual activity with adults" who "appear[] to be their parents." R. Doc. 57, at 79.

         Based on the printed images recovered from his home, Buie was charged with one count of possession of child obscenity in violation of 18 U.S.C. §§ 1466A(b)(1) and (d). Section 1466A(b)(1) prohibits a person from "knowingly possess[ing] a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, that . . . (A) depicts a minor engaging in sexually explicit conduct; and (B) is obscene[.]" At trial, Buie moved for judgment of acquittal at the close of the government's evidence and at the close of all evidence, arguing that § 1466A(b)(1) is unconstitutionally overbroad and vague. The district court denied both motions. The jury convicted Buie and the district court sentenced him to 121 months imprisonment and a life term of supervised release. Buie now appeals his conviction.

         II.

         Buie argues that his conviction must be overturned because § 1466A(b)(1) is overbroad in violation of the First Amendment and vague in violation of the Fifth Amendment. We review both a First Amendment overbreadth challenge and a Fifth Amendment vagueness challenge de novo. United States v. Anderson, 759 F.3d 891, 893 (8th Cir. 2014) (overbreadth challenge); United States v. Birbragher, 603 F.3d 478, 484 (8th Cir. 2010) (vagueness challenge).

         A.

         Buie first argues that § 1466A(b)(1) is unconstitutionally overbroad on its face because it "subjects materials to prosecution that should rightly be considered protected speech." A statute is overbroad under the First Amendment and, therefore, facially unconstitutional "if it prohibits a substantial amount of protected speech." United States v. Williams, 553 U.S. 285, 292 (2008). However, it is undisputed that material that is "obscene" under the standard announced in Miller v. California, 413 U.S. 15 (1973), [3] does not constitute protected speech under the First Amendment. Williams, 553 U.S. at 288; Ashcroft v. Free Speech Coal., 535 U.S. 234, 240 (2002).

         The language of § 1466A(b)(1) explicitly requires that the visual depiction at issue be "obscene"; thus, Miller's three-pronged test is necessarily incorporated into the essential elements of the offense. See Hamling v. United States, 418 U.S. 87, 115 (1974) (noting the Court's "willingness to construe federal statutes dealing with obscenity to be limited to material such as that described in Miller"). Therefore, contrary to Buie's assertion, the statute prohibits only the possession of material that is obscene under Miller and, thus, not constitutionally protected. Where, as here, a statute does not reach any constitutionally protected speech, "the overbreadth challenge must fail." Vill. of ...


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