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Eighth Circuit Upholds Child Porn Supervised Release Condition

On May 7, 2012, the Eighth Circuit Court of Appeals upheld a supervised release condition imposed on a federal prisoner convicted of a non-sex offense that prohibited possession of child pornography or photographic depictions of child nudity.

A Nebraska federal court convicted A.J. Kelly of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), and sentenced him to 115 months in prison and a 36-month term of supervised release. The court imposed a special condition barring Kelly’s access to material containing nudity or alluding to sexual activity.

On appeal, the Eighth Circuit remanded for re-sentencing because the special condition was overbroad and not supported by individual findings. See: United States v. Kelly, 625 F.3d 516 (8th Cir. 2010).

Following remand, the district court amended the special condition to prohibit Kelly’s access to “child pornography, or photographic depictions of child nudity or of children engaged in any sexual activity.” The court made individualized findings in support of the special condition and referenced Kelly’s prior conviction for first-degree sexual assault of a child. “The defendant does have a history of sexual assault, sexual abuse, particularly abuse of his 12-year-old stepdaughter or daughter of a girlfriend ... who was impregnated,” the district court noted.

The Eighth Circuit upheld the amended special condition, rejecting Kelly’s argument that it was unconstitutionally overbroad in violation of the First Amendment. The appellate court found “the special condition supported by individualized findings and sufficiently narrow in light of those findings.”

“The district court made a specific finding that Kelly is predisposed to exploiting children sexually and that viewing photographic depictions of child nudity would undermine his rehabilitative process,” the Court of Appeals wrote. “Given the district court’s individual findings concerning Kelly’s relatively recent predatory behavior,” the circuit court upheld the amended special condition. See: United States v. Kelly, 677 F.3d 373 (8th Cir. 2012), cert. denied.

Related legal cases

United States v. Kelly

United States v. Kelly


 

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