United States Court of Appeals

For the Eighth Circuit

___________________________

No. 18-2942

___________________________

United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

David R. Buie

lllllllllllllllllllllDefendant - Appellant

 ____________

Appeal from United States District Court

for the Western District of Missouri - Kansas City

 ____________

 Submitted: November 15, 2019

Filed: December 27, 2019

____________

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 MidContinent Public Library in Kansas City, Missouri discovered that a library patron

had printed visual images depicting whatshe 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

1The Honorable Stephen R. Bough, United States District Judge for the

Western District of Missouri.

2At the time of the incident, Buie was on supervised release related to an earlier

federal conviction, and Officer Hille was his probation officer.

-2-
unconstitutionally overbroad and vague. The district court denied both motions. The

jury convicted Buie and the district courtsentenced himto 121 monthsimprisonment

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 arguesthat § 1466A(b)(1) is unconstitutionally overbroad on itsface

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),3does 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).

3

In Miller, the Supreme Court established a three-part test for determining

whether material is obscene: “(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. at 24 (internal quotations and citations omitted).

-3-
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 Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455

U.S. 489, 494 (1982). We find that § 1466A(b)(1) is not overbroad in violation of the

First Amendment.

B.

Second, Buie argues that § 1466A(b)(1)—in particular, its use of the term

“obscene”—is vague in violation of the Fifth Amendment because it fails to provide

adequate notice of the proscribed conduct and it permits arbitrary enforcement of the

law. These arguments are both foreclosed by Supreme Court precedent.

With respect to adequate notice, Buie argues that § 1466A(b)(1) is

unconstitutionally vague because no one knows whether a particular visual depiction

is obscene until it is declared obscene by a jury and, thus, the Miller test is

insufficient to provide fair notice of the prohibited conduct. However, both the

Supreme Court and the Eighth Circuit have rejected the argument that the Miller test

isinherently vague. See Reno v. Am. Civ. Liberties Union, 521 U.S. 844, 873 (1997)

(reaffirming the Court’ssatisfaction with the Miller testfor obscenity, and noting that

the test is not vague because it “limits the uncertain sweep of the obscenity

definition”); Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 57-58 (1989) (rejecting

the argument that Miller’s test for obscenity is inherently vague); Alexander v.

Thornburgh, 943 F.2d 825, 832 (8th Cir. 1991), vacated on other grounds, Alexander

-4-
v. United States, 509 U.S. 544 (1993); see also Miller, 413 U.S. at 27 (stating that

Miller’s test for obscenity “provide[s] fair notice to a dealer in such materialsthat his

public and commercial activities may bring prosecution”). As the Miller Court

explained, “[t]hat there may be marginal casesin which it is difficult to determine the

side of the line on which a particular fact situation fallsis no sufficient reason to hold

the language too ambiguous to define a criminal offense.” Id. at 27 n.10 (internal

quotation marks omitted). Accordingly, pursuant to Supreme Court precedent, we

reject Buie’s argument that § 1466A(b)(1) fails to provide adequate notice of the

proscribed conduct.

In asserting that § 1466A(b)(1) permits arbitrary enforcement,Buie argues that,

because the definition of “obscene” is based on local community standards,

enforcement of federal obscenity statutes necessarily and impermissibly varies across

the country. However, the Supreme Court hasrejected the argument that due process

requiresthat “the proscription of obscenity be based on uniformnationwide standards

of what is obscene.” Hamling, 418 U.S. at 104 (citing Miller, 413 U.S. at 31). Asthe

Court explained,

[i]t is said thatsuch a “community” approach may well result in material

being proscribed as obscene in one community but not in another, and,

in all probability, that is true. But communities throughout the Nation

are in fact diverse, and it must be remembered that, in cases such as this

one, the Court is confronted with the task of reconciling conflicting

rights of the diverse communities within our society and of individuals.

Id. at 107 (quoting Jacobellis v. Ohio, 378 U.S. 184, 200-201 (1964) (Warren, C.J.,

dissenting)). Thus, “[t]he mere fact juries may reach different conclusions as to the

same material does notmean that constitutionalrights are abridged.” Miller, 413 U.S.

at 26 n.9; see Smith v. United States, 431 U.S. 291, 309 (1977). We reject Buie’s

argument that § 1466A(b)(1) permits arbitrary enforcement of the law. Accordingly,

we hold that § 1466A(b)(1) is not vague in violation of the Fifth Amendment.

-5-
III.

Finally, Buie arguesthat the conclusion that imagessuch asthose he possessed

are obscene has a potential chilling effect on historic art and visual depictions taken

from literature, some of which depict incestuous acts, which are widely available and

which have heretofore not been deemed obscene. We reject this argument by noting

that the examples of such visual depictions contained in Buie’s brief were not before

the jury and are not a part of the record in this case. See United States v. Ragsdale,

426 F.3d 765, 766 (5th Cir. 2006) (upholding exclusion of allegedly comparable

materials available locally). Further, that visual depictions may have serious and

worthwhile value is adequately accounted for in the Miller test. Miller, 413 U.S. at

15 (providing that material is not obscene if it has “serious literary, artistic, political,

or scientific value”). Finally, aside from his constitutional challenge, Buie does not

challenge the finding implicit in the jury’s verdict that the visual depictions he

possessed are obscene under the Miller test. See R. Doc. 40, at 25-28 (Jury

Instruction No. 18).

IV.

For the foregoing reasons, we affirm the judgment of the district court.

______________________________

-6-