## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 09-3712

___________ United States of America, *
* Plaintiff - Appellee, * * Appeal from the United States v. * District Court for the District of * Nebraska. A. J. Kelly, *
* Defendant - Appellant. *

___________ Submitted: May 12, 2010 Filed: November 22, 2010

___________ Before BYE, MELLOY, and SHEPHERD, Circuit Judges.

___________ BYE, Circuit Judge. A jury convicted A.J. Kelly of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and Kelly was sentenced to 115 months’ imprisonment followed by three years of s upervised release. Kelly appeals his conviction on the ground there was insufficient evidence of his possession or control of a firearm. Kelly also challenges a sp ecial condition of his supervised release barring him from possessing any material whic h “contains nudity or that depicts or alludes to sexual activity or depicts sexual arousing material,” arguing this condition is not reasonably related to the sentencing factors set forth in 18 U.S.C. § 3553(a) and is overbroad in violation of his rights unde r the First Amendment. Although we reject Kelly’s sufficiency-of-evidence argument and affirm his conviction, we find merit in-2- his arguments regarding the special conditi on and remand for further consideration of such condition and resentencing.

I

While executing a search warrant at Kelly ’s residence in Omaha, Nebraska, on April 21, 2008, law enforcement discove red a Colt .22 caliber pistol, some ammunition, and a 2007 receipt for the sale of ammunition, all wrapped in a towel and placed inside three plastic bags. The ite ms were found on top of a basement closet high in the rafters. Also found in the ba sement was a Cricket telephone bill issued in Kelly’s name. It is undisputed that the only two individuals w ho resided at the house were Kelly and his elderly ailing father.

Upon discovery of the gun, Sergeant J onathan Waller of the Omaha Police Department read Kelly his Miranda rights and spoke to him after Kelly had agreed to waive them. According to Waller, Kelly ad mitted during the interview the pistol had been given to him by his grandfather seven years ago. In itially Kelly insisted he had not touched the gun for years, but when Waller confronted him with the ammunition sale receipt dated 2007, Kelly admitted to handling the gun a few times during the intervening years. Although Kelly conced ed he was a convicted felon, Waller recalled, he did not believe the law pr ohibiting felons from possessing firearms applied to the family heirloom pistol given to him by his grandfather.

At trial, Kelly vehemently disputed Wa ller’s account of their conversation. He denied telling Waller the pistol was his gr andfather’s gift or making any statements concerning the handling of the pistol on prio r occasions. According to Kelly, he took responsibility for the gun only after Waller had threatened to charge Kelly’s father if Kelly himself did not claim the gun. Specu lating about the potential owner of the gun, Kelly noted his grandfather had lived at th e house several years ago and three of his siblings, too, had access to the house during the relevant period.-3- Kelly was indicted on June 18, 2008, on two counts: felon in possession of firearm and a criminal forfeiture count under 18 U.S.C. § 924(d). He was convicted on the first count following a single-day jury trial; he was found guilty on the forfeiture count by the judge. On November 16, 2009, the district court sentenced him to 115 months’ imprisonment, the upper point of his 92-115 months Guidelines range, and imposed a three-year term of superv ised release, subject to several special conditions of supervision. Kelly is to serve his sentence consecutive to the 35 to 50 years’ sentence he received on a state-court conviction for sexual assault of a child earlier that year. Apparently because Kelly had two sexual assault convictions, the district court restricted his access to se xually explicit materials through a broadlyphrased provision challenged on this appeal. Kelly timely appealed both his conviction and his sentence.

II

We begin with the easier question of whether Kelly’s conviction was supported by sufficient evidence. “We review a cha llenge to the sufficiency of evidence de novo, considering the evidence in the light mo st favorable to the government.” United States v. Gentry , 555 F.3d 659, 664 (8th Cir. 2009). Because it does not appear Kelly moved for judgment as a matter of law or fo r a new trial, the court could review the claim of insufficient evidence for plain error. United States v. Anderson , 570 F.3d 1025, 1029 (8th Cir. 2009); Boone v. Moore , 980 F.2d 539, 542 n.3 (8th Cir. 1992). However, because the record is not entirel y clear about these procedural facts and because the government does not assert forfeitu re of the issue, we choose to apply the usual standard for evaluating sufficiency-of-evidence claims. SeeUnited States v. Ojeda-Estrada , 577 F.3d 871, 875 (8th Cir. 2009) (choosing to overlook potential forfeiture of full review of the sufficiency -of-evidence claim “out of an abundance of caution” where both parties were uncertainas to whether Rule 29 motion was ever made and the transcript was unreliable due to certain irregularities). Thus, we must affirm the conviction if “any rational jury could have found the defendant guilty-4- beyond a reasonable doubt.” Id. at 874 (citing United States v. Inman , 558 F.3d 742, 747 (8th Cir. 2009)).

“Felony possession of a firearm requires pr oof of three elements: (1) a prior felony conviction; (2) knowing possession of a firearm; and (3) an interstate nexus.” United States v. Jones , 266 F.3d 804, 813 (8th Cir. 2001). Kelly lodges his sufficiency-of-evidence challenge only with respect to the second, knowing possession element. In support of his argument, he points to “inconclusive” results of the DNA testing and asserts that Se rgeant Waller’s testimony concerning Kelly’s confession is unverified and unreliable.

We make short work of Kelly’s ar gument. Whether well-founded or not, Kelly’s doubts about Waller’s credibility are not for us to resolve. “It is axiomatic that we do not review questions involving the credibility of witnesses, but leave credibility questions to the jury .” United States v. Montano , 506 F.3d 1128, 1133 (8th Cir. 2007) (internal quotation marks and citation omitted). As it was free to do, the jury in this case chose to credit the te stimony of Sergeant Waller that Kelly had admitted to being the pistol’s owner. SeeUnited States v. One Star , 979 F.2d 1319, 1321 (8th Cir. 1992). The jury was also en titled not to attach excessive significance to the “inconclusive” results of the DNA tes ting, especially where those results did not positively exclude Kelly, and indeed found Kelly’s DNA in several locations on the pistol. Therefore, we conclude Kelly’s conviction for being a felon in possession of a firearm was supported by sufficient evidence.

It leaves Kelly’s second claim for relief – the argument that the district court exceeded its discretion in imposing special condition of supervision 15. The condition in question prohibits Kelly from

possess[ing] [or] hav[ing] under his . . . control any material, legal or illegal, that contains nudity or that depicts or alludes to sexual activity-5- or depicts sexually arousing material. This includes, but is not limited to, any material obtained through access to any computer, including a computer for employment purposes, or any other material linked to computer access or use. Judgment at 5.

District courts have br oad discretion in imposing conditions of supervised release, as long as each condition “1) is r easonably related to the sentencing factors set forth in 18 U.S.C. § 3553(a); 2) involves no greater deprivation of liberty than is reasonably necessary for the purposes set forth in § 3553(a); and 3) is consistent with any pertinent policy statements issued by the Sentencing Commission.” United States v. Bender , 566 F.3d 748, 751 (8th Cir. 2009) (c iting 18 U.S.C. § 3583(d) and United States v. Boston , 494 F.3d 660, 667 (8th Cir. 2007)) (internal quotation marks omitted). In Kelly’s view, the condition in question fails both the first and the second prong of the test.

We first address Kelly’s argument as to special condition 15 not being reasonably related to § 3553(a) sentencing fact ors. We review the condition for abuse of discretion. United States v. Davies , 380 F.3d 329, 332 (8th Cir. 2004). “A condition is reasonably related to the statut ory factors if tailored to the nature and circumstances of the offense, the defendant’s history and characteristics, the deterrence of criminal conduct, the protecti on of the public from further crimes of the defendant, and the defendant ’s educational, vocational, medicinal, or other correctional needs.” United States v. Fenner , 600 F.3d 1014, 1026 (8th Cir. 2010) (internal quotation marks and citation omitte d). Courts can impose special conditions of supervised release not directly relate d to the offense for which the defendant is being sentenced where “the special conditions are related to another offense that the defendant previously committed.” United States v. Smart , 472 F.3d 556, 559 (8th Cir. 2006) (approving the imposition of sex-offender-related conditions as part of a sentence for felon in possession of a firearm where the defendant was previously-6- convicted of two sexual abuse offenses, was still on probation for one of them, and was sought on an arrest warrant for violating the conditi ons of probation). However, in crafting any special conditions, district c ourts must be careful to conduct an inquiry “on an individualized basis,” looking at the specific facts of the defendant’s criminal history and his particular offe nses. United States v. Davis , 452 F.3d 991, 995 (8th Cir. 2006). Courts may not impose special conditions categorically on all individuals convicted of certain offenses. Id. Following this principle in United States v. Davis , we invalidated a condition effectivel y preventing the defendant from having unsupervised contact with his own daughter where there was no evidence the defendant was guilty of child abuse and th e court imposed the condition solely on the basis of the defendant’s unde rlying conviction for receipt of child pornography. Id. at 995-96. Similarly, inUnited States v. Bender , we disapproved a special condition prohibiting the defendant convicted of a sex crime from possessing sexually stimulating materials based on the district court’s abstract belief that sex offenders “need to have a very tight rein” and have “[no] business reading a Playboymagazine.” 566 F.3d at 752. Instead, we require a particularized showing of the need for the condition in each case.

Our review of the record in Kelly’s cas e indicates the district court intended simply to “follow the special conditions of supervised release set out in the sentencing recommendation.” The senten cing recommendation does not shed better light on the reasons for imposing special condition 15. The probation officer recommended this and other sex-offender-related conditions “because it is unclear what conditions his state sentence will impose on him.” Although Kelly lodged specific objections to several conditions, including special conditi on 15, the court summarily overruled all objections, leaving for the probation office to decide whether any of the conditions were relevant or necessary at a later time.

The lack of ad hocfindings in this case violates the principle of individualized fact-finding mandated by Bender . No more granular than the district court’s analysis-7- of the condition, the probation officer’s rati onale for the restriction was based solely on the character of Kelly’s previous c onvictions – the reasoning prohibited by this court in Davis . Deficient in these respects, th e condition fails the requirement of reasonable relationship to the sentencing factors.

Turning to the related contention that the proscription in question involves greater deprivation of liberty than is reasonably necessary and is overbroad in violation of Kelly’s First Amendment rights, we review the district court’s actions de novo. United States v. Asalati , 615 F.3d 1001, 1006 (8th Cir. 2010). Notwithstanding broad discretion of the court to fashion speci al conditions of supervised release, “we are particularly reluctant to uphold sweepi ng restrictions on important constitutional rights.” United States v. Crume , 422 F.3d 728, 733 (8th Cir. 2005).

No one would dispute the well-established proposition that obscene speech is not covered by the First Amendment and may therefore be proscribed. See Roth v. United States , 354 U.S. 476, 485 (1957). The mercur ial test for defining obscenity is set forth in Miller v. California :
(a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifica lly defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
413 U.S. 15, 24 (1973) (internal quotation marks and citations omitted).

It is likewise undisputed that “nudity alone is not enough to make material legally obscene.” Jenkins v. Georgia , 418 U.S. 153, 161 (1974). “[W]here a ban could apply to any art form that employs nud ity, . . . a defendant’s exercise of First Amendment rights [is] unconstitutionally ci rcumscribed or chilled.” United States1 Additionally, assessing whether materials “allude” to sexual activity calls for the exercise of subjective judgment that makes the condition vulnerable to a void-forvagueness challenge. Howeve r, because Kelly did not pursue this argument on appeal, we will not a ddress it here. Cf. Caspari v. Bohlen , 510 U.S. 383, 389 (1994) (implying that courts do not have an ob ligation to raise sua sponte a constitutional issue that is not of jurisdictional significance).

-8- v. Loy , 237 F.3d 251, 266 (3d Cir. 2000); see also United States v. Simons , 614 F.3d 475, 483 (8th Cir. 2010) (citing Erz noznik v. City of Jacksonville , 422 U.S. 205, 208- 12 (1975)). Guided by this principle, we recently invalidated a special condition of supervised release prohibiting the defe ndant, a registered sex offender, from possessing “any material, legal or illegal, that contains nudity or that depicts or alludes to sexual activity or depicts sexually arousing material.” Simons , 614 F.3d at 483. We were concerned with the breadth of such a provision, which, if applied mechanically, would prohibit the defendant from “viewing a biology textbook or purchasing an art book that contained pictur es of the Venus de Milo, Michelangelo’s David, or Botticelli’s Birth of Venus, all of which depict nudity.” Id. We also rejected the suggestion, urged by the govern ment, that we could entrust the task of curing constitutional infirmity for each indivi dual application of the condition to the probation office. Id. at 485.

Our decision in Simons alone would be fatal to special condition 15. The language of special provision 15 is virtually identical to the provision invalidated in that case. Even so, we write separately to emphasize a more basic reason why the condition in question is overbroad. While the focus of our opinion in Simons was on depicting sexual activity, alluding to sexual activity provides an even more persuasive ground for invalidating special provision 15, since it encompasses an even broader swath of materials. 1

The verb “to allude” means “to refer casually or indirectly; make an allusion.” Random House Webster’s College Dictionary (2d ed. 1999). The noun “allusion” is-9- in turn defined as “a passing or casual re ference to something, either directly or implied; the act of alluding.” Id. The proscription on materials alluding to sexual activity, then, comprises not only materials that depicting sexual activity –which, by and large, are limited to video, still-image, or sculpture formats – but also print materials, however benign and devoid of lascivious ethos, which make a passing reference to sexual activity.

Caught within the net cast by this phras e would be the Bible, with its “Thou shalt not commit adultery” directive, see Exodus 20:14, and other references to copulation contained in abundance inthe Old Testament, see, e.g. , Genesis 19:30-36 (a story of Lot’s daughters “laying” with th eir father and getting pregnant as a result); Genesis 38:13-24 (a story of Tamar trading sex with Judah for ownership of a goat); Genesis 38:8-10 (the sin of Onan, who “spilt hi s seed upon the ground” rather than try to impregnate his brother’s wife, as his brother asked him to); numerous works of classical literature– like Anne Frank’s The Diary of a Young Girl– which Kelly could not even prescreen given the absen ce of sexual content rating system for books; and, most perversely, laws outlawing certa in forms of sexual conduct and, for that matter, even this very opinion. The sweep ing reach of this proscription is magnified by its strict-liability phrasing, which makes Kelly responsible for all materials in his possession, even if he has not read or looke d at them. Worse, the rule would prevent Kelly from even possessing contraceptives, thereby threatening his constitutionally protected privacy right to decide “‘whether to . . . beget a child.’” Carey v. Population Servs., Int.’l , 431 U.S. 678, 685 (1977) (quoting Eisenstadt v. Baird , 405 U.S. 438, 453 (1972)). These few examples demonstrate the condition imposed on Kelly has a “substantial range of applications to activity protected by the First Amendment.” Turchick v. United States , 561 F.2d 719, 721 (8th Cir. 1977). Despite other “unprotected activities it legitimately prohi bits,” such condition is constitutionally overbroad. Id.

Recognizing the overbreadth problems pos ed by this phrasing, the government has previously conceded the point in a similar case. Un ited States v. Cabot , 325 F.3d-10- 384, 386 (2d Cir. 2003) (approving of the gove rnment’s concession that a condition barring the defendant from po ssessing matter that “depic ts or alludes to sexual activity” or “depicts minors under the age of eighteen” is too broad) . In this case, however, the government chose to resi st Kelly’s arguments by emphasizing the reprehensible nature of his misconduct. See Red Br. at 12 (“The Special Condition may be extraordinary, but so is the defe ndant.”). But convicted individuals “do not forfeit all constitutional protections by reason of their conviction.” Bell v. Wolfish , 441 U.S. 520, 545 (1979). Even for those imprisoned, “[t]here is no iron curtain drawn between the Constitution and the prisons of this country.” Wolff v. McDonnell , 418 U.S. 539, 555-56 (1974). Since a convicted individual does not shed his right to freedom of speech and religion under the First and Fourteenth Amendments, Bell , 441 U.S. at 545 (citing Pell v. Procunier , 417 U.S. 817 (1974); Cruz v. Beto , 405 U.S. 319 (1972); Cooper v. Pate , 378 U.S. 546 (1964)), the government’s attempt to resc ue the condition is unavailing.

III

For these reasons, we affirm Kelly’s conviction but vacate special condition 15 and remand to the district court for furthe r proceedings consistent with this opinion.

SHEPHERD, Circuit Judge, conc urring in part, dissenting in part, and concurring in the judgment.

I am pleased to concur with the majority’s decision holding (1) that there was sufficient evidence to support Kelly’s conviction for possession or control of a firearm and (2) that the district court failed to makean individualized showing of the need for special condition 15 in this case. Furthe r, I agree with the majority’s action of affirming the conviction but vacating sp ecial condition 15 and remanding to the district court.-11- I dissent from the majority’s extended di scussion as to the overly broad nature of special condition 15 as our decision in United States v. Simons , 614 F.3d 475 (8th Cir. 2010), alone, is sufficient to invalidate the special condition.

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