                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 18a0329n.06

                                           Case No. 17-5981

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                                FILED
                                                                               Jul 05, 2018
                                                                          DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA,                            )
                                                     )
       Plaintiff-Appellee,                           )
                                                     )        ON APPEAL FROM THE UNITED
v.                                                   )        STATES DISTRICT COURT FOR
                                                     )        THE EASTERN DISTRICT OF
JAMES CHASE,                                         )        KENTUCKY
                                                     )
       Defendant-Appellant.                          )



       BEFORE: COOK and DONALD, Circuit Judges; HALE, District Judge.*

       COOK, Circuit Judge.         Convicted of receiving child pornography, James Chase

challenges a term of his supervised release conditions as impermissibly vague and overbroad. We

disagree and AFFIRM.

                                      I.      BACKGROUND

       In 2008, Chase pleaded guilty to one count of receiving child pornography. The court

sentenced him to 104 months’ imprisonment, followed by a lifetime of supervised release. One

proviso of his release mandates that he:

       [S]hall not possess, view, listen to, or go to locations where any form of
       pornography, sexually stimulating performances, or sexually oriented material,
       items, or services are available.


       The Honorable David J. Hale, United States District Judge for the Western District of
       *

Kentucky, sitting by designation.
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United States v. Chase


       After his discharge from prison, Chase admitted to his probation officer that he violated

the term of release by buying pornography. Within months of that infraction, Chase again got

himself into trouble, watching a YouTube video of two naked individuals painting each other’s

bodies while rolling around in bed. The court sentenced him to seven months in prison and re-

imposed lifelong supervised release, leaving the “sexually oriented material” provision unchanged.

Chase contests this language’s lawfulness, occasioning our review.

                                        II.    DISCUSSION

       Because Chase never objected to his supervised release conditions before the district court,

he forfeited any review beyond plain error. United States v. Inman, 666 F.3d 1001, 1003 (6th Cir.

2012). He must therefore show “(1) an error, (2) that was obvious or clear, (3) that affected his

substantial rights, and (4) that affected the fairness, integrity, or public reputation of his judicial

proceedings.” Id. at 1003–04.

       District courts have “broad discretion to impose appropriate conditions of supervised

release.” United States v. Ritter, 118 F.3d 502, 506 (6th Cir. 1997). To qualify as “appropriate,”

a condition “must reasonably relate to the nature of the offense and the history and characteristics

of the defendant” and must encompass “no greater deprivation of liberty than is reasonably

necessary to serve the goals of deterrence, protecting the public, and rehabilitating the defendant.”

Inman, 666 F.3d at 1004 (quotation omitted); see also 18 U.S.C. § 3583(d)(2).

                                              A. Vagueness

       Chase first argues that his supervised release term is vague. Although he contends that the

restriction’s boundaries are unclear, Chase acknowledged at sentencing that watching the body-

painting video violated the restriction. He nonetheless continues to insist that the video ought to



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United States v. Chase


have passed muster as art. Essentially, he argues art—the Venus de Milo and Michelangelo’s

David, his examples—to be indistinguishable from pornography.

       Yes, vagueness is unacceptable. See, e.g., United States v. Cabot, 325 F.3d 384, 385 (2d

Cir. 2003) (“Because [a defendant]’s conditional freedom . . . hinge[s] upon his compliance with

the condition[] prescribed, [it] must ‘give the person of ordinary intelligence a reasonable

opportunity to know what is prohibited, so that he may act accordingly.’” (quoting Grayned v. City

of Rockford, 408 U.S. 104, 108 (1972))). But as we noted in United States v. Lantz, we have no

controlling precedent on “whether a ban on all pornography is impermissibly vague, and the

circuits are split on the issue. It would therefore be inappropriate to find plain error in these

circumstances.” 443 F. App’x 135, 140–41 (6th Cir. 2011) (collecting cases); see also United

States v. Madden, 515 F.3d 601, 608 (6th Cir. 2008). So too here.

                                          B. Overbreadth

       Second, Chase argues that “sexually oriented” is overbroad because it encompasses

literature, movies, and art. Even the Bible is off-limits, he suggests. Further, because his release

term bars him from even “go[ing] to locations where any form of . . . sexually oriented material,

items, or services are available,” he maintains that he may not be able to visit a movie theater,

library, art museum, or church. As he sees it, “the condition infringes on his fundamental First

Amendment freedom to practice his religion and receive information.”

       Chase likens his restriction to those we invalidated for overbreadth under plain-error

review in United States v. Borders, 489 F. App’x 858, 863 (6th Cir. 2012), and Lantz, 443 F. App’x

at 141. Borders struck a condition that prohibited the defendant from “view[ing], listen[ing] to,

or possess[ing] anything sexually explicit or suggestive.” 489 F. App’x at 863 (emphasis added).



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Similarly, Lantz held overbroad a condition barring material that “alludes to sexual activity.”

443 F. App’x at 141 (emphasis added).

       Problematic for Chase is that this restriction “reasonably relate[s] to the nature of [his]

offense and [his] history and characteristics.” Inman, 666 F.3d at 1004. After his first violation,

the district court heard evidence from his treating psychologist that adult pornography is a

“gateway” to underage content for child pornography addicts like Chase. The psychologist agreed

that the totality of Chase’s supervised release terms is “necessary and appropriate for his ongoing

treatment.” His probation officer likewise testified that Chase’s addiction could be “triggered” by

viewing adult pornography. From these facts—facts we recognize are peculiar to this particular

defendant—it follows that preventing Chase from perusing “sexually oriented” material closely

hews to the proscriptions that his offense, history, and characteristics necessitate.

       The condition that Chase challenges may sound indistinguishable from those struck in

Borders and Lantz, but distinguish it we can. Those provisions encompassed wide swathes of

material only tangentially related to sexual arousal. Borders held that “[t]he words ‘or suggestive’

render that aspect of the special condition plain error.” 489 F. App’x at 863. That’s because

“sexually suggestive” is “so expansive” that it “would cover the Bible and other religious texts,

and a huge quantity of literature, music, and other media, and would thus infringe on Borders’

First Amendment rights to receive information and to freely exercise religion.” Id. (citations

omitted). Lantz held that a restriction “that bans mere allusion to sexual activity is certainly overly

broad.” 443 F. App’x at 141. Why? The court explained that, under this condition, the defendant

“arguably could not possess a television—which broadcasts sexual allusion in everything from

afternoon soap operas through prime time ‘drama’—or a radio—which subjects listeners to such



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United States v. Chase


things as annoyingly persistent advertisements for ‘male enhancement’ products.” Id. (emphasis

added).

          On the other hand, “sexually oriented” is more tightly focused, more circumscribed, than

the Borders and Lantz terms. The Bible might “allude to” sexual activity because it mentions

sexual relations, but it isn’t a “sexually oriented” book—its primary purpose is theological, not

sexual. Michelangelo’s David might be “sexually suggestive” because it stands naked, but it isn’t

a “sexually oriented” 500-year-old marble statue—its focus is depicting strength and beauty in the

face of danger, not sexually tantalizing the observer. And Venus de Milo might be “sexually

suggestive” because it is topless, but it isn’t “sexually oriented”; as the district court aptly

observed, “Venus de Milo is not two people rolling around body painting in bed.”

          Plus, that something is “sexually suggestive,” as in Borders, or “alludes to” sexual activity,

as in Lantz, does not mean it is likely to trigger the downward spiral to child pornography addiction

that courts have a justified interest in preventing. Indeed, Borders doubted that a restriction as

expansive as “sexually suggestive” could be “tied to the purpose of the sentencing factors.” 489 F.

App’x at 863. So did Lantz. 443 F. App’x at 141 (“[T]his restriction is so broad that it seems to

have little to do with any of the sentencing factors.”). We think the language at issue in United

States v. Smith, 564 F. App’x 200 (6th Cir. 2014), presents a better parallel. In Smith, we held that

a supervised release condition banning “pornography and sexually-stimulating performances” was

not overbroad under plain-error review. Id. at 207–08. There, as here, the condition cabined the

restricted content to material that could interfere with “the rehabilitation of [an] offender.” Id.

Given Smith, which was decided after Lantz and Borders, we do not conclude that including the

“sexually oriented” term in Chase’s supervised release conditions amounted to an obvious error.



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United States v. Chase


       Like the Smith defendant, Chase “assumes [his] probation officer will interpret the

restriction” to prohibit a wide range of activities and material, such as reading the Bible or going

to a library. Id. at 207. To be sure, we do not read it so expansively, and if problems do arise, we

have faith in the district court’s “ability to clarify its restriction.”    Id. (citing 18 U.S.C.

§ 3583(e)(2)). The court emphasized that Chase, when in doubt, may consult his probation officer

or counselor. We likewise encourage him to avail himself of those resources.

                                     III.    CONCLUSION

       For these reasons, we AFFIRM.




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       BERNICE BOUIE DONALD, Circuit Judge, concurring in the judgment. I write

separately to respectfully express my concern over the majority’s approach to the issue of whether

“sexually oriented material, items, or services” is overbroad. Narrowly construing “sexually

oriented materials” offers a practical solution for resolving the somewhat ambiguous language in

this defendant’s case.1 However, I have reservations about shying away from an objective reading

of the conditions language in favor of a more subjective, limiting construction of the conditions

language where First Amendment rights are concerned. See United States v. Zobel, 696 F.3d 558,

576 (6th Cir. 2012) (“Bans on explicit material involving adults certainly raise First Amendment

implications . . . and are thus ‘subject to careful review.’”) (citations omitted).

       In my view, “sexually oriented” is facially broader than “pornography” or “sexually-

stimulating performances.” The majority likens “sexually oriented” to the language at issue in

United States v. Smith, 564 F. App’x 200, 207-08 (6th Cir. 2014), but I am not persuaded that

Smith constitutes a fitting parallel for this case. Smith rejected an overbreadth challenge to

conditions barring “pornography and sexually-stimulating performances.” Id. The defendant in

Smith presented no First Amendment challenge but rather challenged his inability to go to the

corner store where condoms and Playboy magazines were sold. Id. Conversely, the restrictions

here—when viewed without the majority’s narrow construction—present potential constitutional

difficulties. Moreover, Chase’s restrictions contain condition language otherwise barring “any

form of pornography” and “sexually stimulating performances,” terms that are identical to the

language at issue in Smith. It follows that “sexually oriented material, items, or services” is



       1
         For instance, I agree that it is unlikely that Chase’s condition will be interpreted by his
probation officer or a district court to restrict such a wide range of activities or material, as Chase
alleges.
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United States v. Chase


materially different from either pornography or sexually stimulating performances, or else the

language would be impermissibly redundant. See United States v. Antelope, 395 F.3d 1128, 1141-

42 (9th Cir. 2005) (rejecting government’s contention that “sexually oriented or sexually

stimulating materials” should be read as “pornographic” where the condition already contained a

pornography ban that would make such a reading redundant).

       Nevertheless, with the majority’s more limited definition, the condition barring “sexually

oriented material, items, or services” applied here does not amount to plain error. This is

particularly true when taken with the majority’s well-supported conclusion that there is ample

evidence to underpin Chase’s prohibition from engaging with material, items, or services that have

a “primary purpose” of “sexually tantalizing the observer.” I do not dispute the significance of

preventing access to materials that are tied to Chase’s likelihood to reoffend. I remain concerned

that redundant conditions, such as this one, could be interpreted in a manner much broader than

the majority’s interpretation—in a way that is violative of the First Amendment.

       Although a common-sense narrowing approach may be appropriate here, I urge district

courts to opt for greater specificity and clarity when imposing special conditions in these sorts of

cases. See United States v. Schultz, 733 F.3d 616, 624 (6th Cir. 2013) (“[W]e cannot hide from

insisting on narrower supervised release conditions when necessary or construing such conditions

narrowly when appropriate.”). I concur in the outcome reached by the majority.




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