Submitted: November 15, 2019
from United States District Court for the Western District of
Missouri - Kansas City
SHEPHERD, GRASZ, and KOBES, Circuit Judges.
SHEPHERD, CIRCUIT JUDGE.
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.
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. 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.
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.
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).
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),
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).
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 ...