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 supervised release. Kelly appeals his

conviction on the ground there was insufficient evidence of his possession or control

of a firearm. Kelly also challenges a special condition of his supervised release

barring him from possessing any material which “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 under 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 condition 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 discovered 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 items were found on top of a basement closet

high in the rafters. Also found in the basement was a Cricket telephone bill issued in

Kelly’s name. It is undisputed that the only two individuals who resided at the house

were Kelly and his elderly ailing father.

Upon discovery of the gun, Sergeant Jonathan 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 admitted during the interview the pistol had

been given to him by his grandfather seven years ago. Initially 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 conceded he was a convicted felon, Waller

recalled, he did not believe the law prohibiting felons from possessing firearms

applied to the family heirloom pistol given to him by his grandfather.

At trial, Kelly vehemently disputed Waller’s account of their conversation. He

denied telling Waller the pistol was his grandfather’s gift or making any statements

concerning the handling of the pistol on prior 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. Speculating about the potential owner of the gun,

Kelly noted his grandfather had lived at the 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 supervised 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 sexually 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 challenge to the sufficiency of evidence de

novo, considering the evidence in the light most 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 for 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 entirely clear about these procedural facts and

because the government does not assert forfeiture of the issue, we choose to apply the

usual standard for evaluating sufficiency-of-evidence claims. See United 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 uncertain as 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 proof 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 Sergeant Waller’s testimony concerning Kelly’s

confession is unverified and unreliable.

We make short work of Kelly’s argument. 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 testimony of Sergeant Waller that Kelly had

admitted to being the pistol’s owner. See United States v. One Star, 979 F.2d 1319,

1321 (8th Cir. 1992). The jury was also entitled not to attach excessive significance

to the “inconclusive” results of the DNA testing, 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 broad discretion in imposing conditions of supervised

release, as long as each condition “1) is reasonably 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) (citing 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 factors. 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 statutory factors if tailored to the nature and

circumstances of the offense, the defendant’s history and characteristics, the

deterrence of criminal conduct, the protection 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 omitted). Courts can impose special conditions

of supervised release not directly related 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 conditions of probation). However,

in crafting any special conditions, district courts 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 offenses. 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 effectively preventing the defendant from having

unsupervised contact with his own daughter where there was no evidence the

defendant was guilty of child abuse and the court imposed the condition solely on the

basis of the defendant’s underlying conviction for receipt of child pornography. Id.

at 995-96. Similarly, in United 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 Playboy magazine.”

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 case indicates the district court intended

simply to “follow the special conditions of supervised release set out in the sentencing

recommendation.” The sentencing 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 condition 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 hoc findings 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 rationale for the restriction was based solely

on the character of Kelly’s previous convictions – the reasoning prohibited by this

court in Davis. Deficient in these respects, the 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 special conditions of supervised release, “we

are particularly reluctant to uphold sweeping 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 mercurial 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 specifically 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 nudity, . . . a defendant’s exercise of First

Amendment rights [is] unconstitutionally circumscribed or chilled.” United States
1

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. However, because Kelly did not pursue this argument on

appeal, we will not address it here. Cf. Caspari v. Bohlen, 510 U.S. 383, 389 (1994)

(implying that courts do not have an obligation 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 Erznoznik 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 defendant, 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 pictures 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 government, that we could entrust the task of

curing constitutional infirmity for each individual 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 reference 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 phrase would be the Bible, with its “Thou

shalt not commit adultery” directive, see Exodus 20:14, and other references to

copulation contained in abundance in the Old Testament, see, e.g., Genesis 19:30-36

(a story of Lot’s daughters “laying” with their 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 his 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 absence of sexual content rating system for books;

and, most perversely, laws outlawing certain forms of sexual conduct and, for that

matter, even this very opinion. The sweeping 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 looked 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 prohibits,” such condition is constitutionally

overbroad. Id.

Recognizing the overbreadth problems posed by this phrasing, the government

has previously conceded the point in a similar case. United States v. Cabot, 325 F.3d
-10-

384, 386 (2d Cir. 2003) (approving of the government’s concession that a condition

barring the defendant from possessing matter that “depicts or alludes to sexual

activity” or “depicts minors under the age of eighteen” is too broad). In this case,

however, the government chose to resist 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 defendant.”). 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 rescue 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 further proceedings consistent with this opinion.

SHEPHERD, Circuit Judge, concurring 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 make an individualized showing of the need for

special condition 15 in this case. Further, I agree with the majority’s action of

affirming the conviction but vacating special condition 15 and remanding to the

district court.
-11-

I dissent from the majority’s extended discussion 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.

_____________________________