FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-50665
Plaintiff-Appellee, D.C. No.
v. 2:08-CR-01111-
NEVILLE KING, DSF-1
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Argued and Submitted
June 10, 2010—Pasadena, California
Filed June 25, 2010
Before: Dorothy W. Nelson and Ronald M. Gould,
Circuit Judges, and James S. Gwin,* District Judge.
Opinion by Judge Gwin
*The Honorable James S. Gwin, United States District Judge for the
Northern District of Ohio, sitting by designation.
9275
9278 UNITED STATES v. KING
COUNSEL
Callie Glanton Steele, Deputy Public Defender, Federal Pub-
lic Defender, Los Angeles, California, for the defendant-
appellant.
Daniel A. Saunders, Assistant United States Attorney, Office
of the United States Attorney, Los Angeles, California, for the
plaintiff-appellee.
OPINION
GWIN, District Judge:
Defendant Neville King appeals the district court’s judg-
ment revoking his term of supervised release and imposing
additional supervised release conditions on the basis of five
violations of his supervised release conditions. We have juris-
diction under 28 U.S.C. § 1291.
UNITED STATES v. KING 9279
I. FACTS AND PROCEDURAL HISTORY
After a jury convicted King of charges of possessing
cocaine with the intent to distribute, the United States District
Court for the Eastern District of Michigan sentenced him to
235 months of imprisonment followed by five years of super-
vised release. King began his term of supervised release on
March 5, 2008. On September 8, 2008, the Eastern District of
Michigan transferred jurisdiction over King’s supervised
release to the Central District of California.
On May 28, 2009, King’s probation officer submitted a
report to the district court for the Central District of California
alleging seven violations of his supervised release conditions:
1. Associating with convicted felons by accepting telephone
calls from federal inmates between February 29, 2008
and September 10, 2008;
2. Associating with convicted felons by e-mailing federal
inmates between March 2, 2008 and December 1, 2008;
3. Associating with convicted felons by wiring money to
federal inmates;
4. Associating with convicted felon Anna Moore, a Cold-
well Banker independent contractor for whom he worked
as an assistant, and failing to report that association to his
probation officer in his March and April 2008 monthly
reports;
5. Failing to submit truthful information to his probation
officer in his March and April 2008 monthly reports by
misrepresenting that he worked directly for Coldwell
Banker, when he actually worked for Anna Moore, an
independent contractor for Coldwell Banker;
6. Failing to follow the instructions of his probation officer
by failing to submit documentation of his employment
9280 UNITED STATES v. KING
with N-Vest, a real estate venture, from May 2008
through July 2008; and
7. Failing to make court-ordered monthly payments on his
fine.
Later, the government dismissed allegation 3, and King
admitted to allegation 7.
At the preliminary revocation hearing, King’s probation
officer asked the district court to modify King’s supervised
release conditions until the full revocation hearing. After
King’s counsel objected to the modification proposed by
King’s probation officer, the district court refashioned the
modification, subjecting King and his property (including any
computer “confined to his own use”) to search upon reason-
able suspicion of a violation of supervision or of unlawful
conduct. Also, the district court ordered King “not to use a
computer that other individuals ha[d] access to.” King did not
object to the refashioned modification.
After a two-day hearing on the remaining allegations, the
district court sustained allegations 1, 2, 4, and 5, and dis-
missed allegation 6.
With respect to allegations 1 and 2, King’s probation offi-
cer testified that her investigation revealed—and, upon con-
frontation, King admitted—that he had regularly
communicated by telephone and e-mail with a number of
incarcerated felons. King’s probation officer also testified that
King generally admitted all of the violations in the petition on
three other occasions. The district court found King’s proba-
tion officer’s testimony credible.
With respect to allegation 4, King’s probation officer testi-
fied that, in addition to his three general admissions to the
entire petition, King specifically admitted failing to report his
knowledge that Anna Moore, his employer, was a felon.
UNITED STATES v. KING 9281
Moreover, although Moore testified that she never told King
that she was a felon, she admitted that King obtained his job
with her through King’s longtime close friend and Moore’s
ex-husband and drug trafficking co-conspirator, Kevin Moore.
With respect to allegation 5, King’s probation officer testi-
fied that, in addition to his three general admissions, King
specifically admitted to misrepresenting his employment posi-
tion with Coldwell Banker. Moreover, the probation officer
testified that, according to Coldwell Banker, King had never
been employed there. And although Anna Moore testified that
she considered herself to work for Coldwell Banker, she
admitted that she was actually an independent contractor.
Having sustained allegations 1, 2, 4, and 5, the district court
sentenced King to nine months of imprisonment followed by
51 months of supervised release with several additional condi-
tions, including (1) a condition that King subject himself and
his property to search upon reasonable suspicion of a viola-
tion of supervision or of unlawful conduct, and (2) a condition
that King not associate with inmates in state or local prisons.
From the district court’s judgment, King timely appealed to
this Court.
II. ANALYSIS
King raises multiple challenges to the district court’s revo-
cation of his supervised release term and imposition of addi-
tional supervised release conditions.
A. Jurisdiction to Revoke Supervised Release for
Pre-Transfer Violations
[1] King first argues that the district court lacked jurisdic-
tion to revoke his supervised release for violations he commit-
ted before the transfer of jurisdiction from the Eastern District
of Michigan—a question of first impression in our circuit.
9282 UNITED STATES v. KING
King’s argument fails in light of the statutory text and struc-
ture, the absurd results it would yield, and the unanimous
opinions of our sister circuits.
[2] The text and structure of the statute authorizing transfer
of jurisdiction over individuals on supervised release indicates
that a transferee court has jurisdiction to revoke supervised
release for violations committed before transfer. That statute,
18 U.S.C. § 3605, provides that “[a] court to which jurisdic-
tion is transferred under this section is authorized to exercise
all powers over the probationer or releasee that are permitted
by this subchapter or subchapter B or D of chapter 227”—
which includes the power to “revoke a term of supervised
release . . . if the court . . . finds by a preponderance of the
evidence that the defendant violated a condition of supervised
release,” id. § 3583(e)(3) (part of ch. 227, subchapter D).
Under this statutory structure, the transferee court steps into
the shoes of the transferor court—which, per § 3583(e), had
jurisdiction to revoke supervised release for pre-transfer vio-
lations. Section § 3605’s language does not limit the trans-
feree court’s power to violations that occur after transfer.
If we were to adopt the contrary position (as King urges),
two incongruous consequences would follow. First, the con-
trary rule would create a “twilight zone” of immunity for vio-
lations committed—but not discovered—before transfer.
Second, the logic of King’s argument is not limited to the
transferee court’s jurisdiction to revoke supervised release; it
applies with equal force to the transferee court’s jurisdiction
to terminate or reduce the conditions of supervised release.
Compare 18 U.S.C. § 3583(e)(3) (power to “revoke a term of
supervised release”) with id. § 3583(e)(1) (power to “termi-
nate a term of supervised release”) and id. § 3583(e)(2)
(power to “modify, reduce, or enlarge the conditions of super-
vised release”). Thus, for example, under King’s reading of
the statute, a transferee court would be powerless to terminate
or modify a supervised release term on the basis of the super-
visee’s good behavior before transfer—forcing the supervisee
UNITED STATES v. KING 9283
to start at square one after each transfer. Cf. United States v.
Miller, 205 F.3d 1098, 1101 (9th Cir. 2000) (“ ‘Occasionally,
changed circumstances—for instance, exceptionally good
behavior by the defendant . . .—will render a previously
imposed term or condition of release either too harsh or inap-
propriately tailored to serve the general punishment goals of
section 3553(a).’ ”) (citation omitted). As a result, even if
§ 3605 were ambiguous, we would construe it to avoid these
absurd results. See, e.g., United States v. Middleton, 231 F.3d
1207, 1210 (9th Cir. 2000) (courts should “avoid, if possible,
a[ statutory] interpretation that would produce ‘an absurd and
unjust result which Congress could not have intended’ ”)
(quoting Clinton v. City of New York, 524 U.S. 417, 429
(1998)).
Moreover, two other circuits have rejected—and none have
adopted—King’s position. See United States v. Bailey, 257 F.
App’x 210, 212 (11th Cir. 2007) (unpublished) (“[B]ased on
the plain language of 18 U.S.C. § 3605, the district court for
the Northern District of Georgia had the power to revoke Bai-
ley’s supervised release as to the case transferred from Ala-
bama, regardless of whether the conduct underlying the
revocation was pre-transfer or post-transfer . . . .”); United
States v. Fernandez, 379 F.3d 270, 275-76 (5th Cir. 2004)
(rejecting argument that “Congress intended only that after a
valid transfer of jurisdiction has taken place, the defendant’s
subsequent commission of a crime in the transferee district
would allow the transferee court to address the original super-
vised release along with the sentence for the new crime”;
instead concluding that “[§ 3605’s] legislative history clearly
indicates that the statute allows the transferor court . . . to
transfer jurisdiction after charges have been filed against the
releasee for a new offense committed . . . before any transfer
of jurisdiction”) (emphasis in original).
King’s reliance on United States v. Miller, 547 F.3d 1207
(9th Cir. 2008), is misplaced. There, we held only that a
defendant’s release under a pre-release program does not trig-
9284 UNITED STATES v. KING
ger the start of his term of supervised release (and thus the
applicability of his supervised release conditions). Id. at 1212-
13. Here, by contrast, there is no dispute that King’s viola-
tions occurred during his term of supervised release.
[3] We thus hold that a transferee court has jurisdiction
under 18 U.S.C. § 3605 to revoke a term of supervised release
for violations committed before the transfer of jurisdiction.
B. Constitutional Challenge to Condition Forbidding
“Associat[ion]” With Known Felons
[4] Second, King argues that the supervised release condi-
tion forbidding him from “associat[ing]” with known felons
was unconstitutionally vague—and in particular, that it failed
to adequately notify him that phone and e-mail communica-
tions with felons were forbidden. A supervised release condi-
tion “violates due process of law if it either forbids or requires
the doing of an act in terms so vague that men of common
intelligence must necessarily guess at its meaning and differ
as to its application.” United States v. Soltero, 510 F.3d 858,
866 (9th Cir. 2007) (per curiam) (citations and quotation
marks omitted).
[5] We have on several occasions held that conditions pro-
scribing “association” with a clearly defined group are not
impermissibly vague. See id. at 867 (holding that supervised
release condition forbidding association with criminal street
gang members is not unconstitutionally vague); United States
v. Vega, 545 F.3d 743, 749-50 (9th Cir. 2008) (same); United
States v. Napulou, 593 F.3d 1041, 1045 (9th Cir. 2010) (con-
dition forbidding association with persons convicted of mis-
demeanors is not unconstitutionally vague).
In those decisions, we cabined the dictionary definition of
“associate” in three ways to avoid its potentially vague outer
boundaries. See The American Heritage Dictionary of the
English Language (4th ed. 2000) (“to spend time socially;
UNITED STATES v. KING 9285
keep company”); Merriam-Webster’s Collegiate Dictionary
(11th ed. 2003) (“to come or be together as partners, friends,
or companions”). First, we explained that, consistent with the
fundamental presumption that “prohibited criminal acts
require an element of mens rea,” Vega, 545 F.3d at 750, non-
association conditions prohibit only knowing contact with per-
sons that the supervisee knows to be felons. See id.; Soltero,
510 F.3d at 867 n.9. We further limited the meaning of non-
association conditions by emphasizing that “ ‘incidental con-
tacts’ . . . do not constitute ‘association’ . . . .” Soltero, 510
F.3d at 866-67 (quoting Arciniega v. Freeman, 404 U.S. 4, 4-
5 (1971) (per curiam)); see also Neil P. Cohen, The Law of
Probation and Parole § 9:11 (2d ed. 1999) (“Courts routinely
hold that a probation or parole condition proscribing associat-
ing with a person or group refers to planned, prolonged con-
tact as distinguished from chance or casual meetings.”).
Finally, we noted that “ ‘[i]f and when [supervised release] is
revoked, we will examine the findings to insure that [defen-
dant’s] due process right to notice of prohibited conduct has
been observed and to protect him from unknowing viola-
tions.’ ” Vega, 545 F.3d at 750 (citation omitted) (alterations
in original). With these limitations, we concluded that “ ‘men
of common intelligence’ need not guess at the meaning of
‘association.’ ” Soltero, 510 F.3d at 867; see also Vega, 545
F.3d at 749; Napulou, 593 F.3d at 1045.
[6] Here, moreover, King’s probation officer testified that
she explained to King at the outset of his supervised release
term that he was not to have “any type of contact” with
known felons. A probation officer’s instructions are relevant
to whether a supervised release condition gives fair warning
of prohibited conduct. See United States v. Romero, 676 F.2d
406, 407 (9th Cir. 1982) (“In addition to the bare words of the
probation condition, the probationer may be guided by the
further definition, explanations, or instructions of the district
court and the probation officer.”).
[7] Together, the ordinary meaning of “associate,” our case
law, and King’s probation officer’s instructions adequately
9286 UNITED STATES v. KING
notified King that telephone and e-mail communications with
felons were prohibited. See Napulou, 593 F.3d at 1044 n.2
(observing, in summarizing evidence that defendant violated
non-association condition, that defendant “had been maintain-
ing daily telephonic contact with Kahau after [defendant’s]
arrest and incarceration for association with Kahau”). We thus
hold that the non-association condition was not unconstitu-
tionally vague.
C. Sufficiency of the Evidence for Violation Findings
King next argues that insufficient evidence supports three
of the district court’s violation findings. On a sufficiency-of-
the-evidence challenge to a supervised release revocation, we
ask whether, “ ‘viewing the evidence in the light most favor-
able to the government, any rational trier of fact could have
found the essential elements’ of a violation” by “ ‘a prepon-
derance of the evidence.’ ” United States v. Jeremiah, 493
F.3d 1042, 1045 (9th Cir. 2007) (citations omitted).
[8] First, King challenges the sufficiency of the evidence
for the district court’s finding that the federal prison inmates
with whom King communicated by phone and e-mail were
felons (rather than federal misdemeanants). But King’s proba-
tion officer—whom the district court found credible—
testified that King specifically admitted having “been in tele-
phonic and email contact with convicted felons” and that on
three other occasions King generally admitted all of the alle-
gations in the petition. Additionally, King’s probation officer
testified that the Bureau of Prisons records she received indi-
cated that King had been in “regular telephonic and e-mail
contact with a number of incarcerated felons.” No evidence in
the record indicated that any of the inmates with whom King
communicated were not felons. Viewing this evidence in the
light most favorable to the government, a rational judge had
ample room to find that the federal inmates with whom King
communicated were felons.
UNITED STATES v. KING 9287
[9] Second, King argues that the district court lacked suffi-
cient evidence to find that at the time of the alleged violation,
he knew that his employer, Anna Moore, was a felon. At the
revocation hearing, King’s probation officer testified that
King specifically admitted failing to report his knowledge that
Moore was a felon and generally admitted all of the allega-
tions in the petition on three other occasions. Moreover,
King’s probation officer testified that when she later con-
fronted him about the violation allegation, he responded that
Moore’s status as a felon was “ ‘common knowledge.’ ”1
Finally, although Moore testified that she never told King that
she was a felon, a rational judge could have concluded that
King learned of her felon status from other sources—namely,
from King’s close friend and Moore’s ex-husband and drug
trafficking co-conspirator, Kevin Moore, who helped King
secure his job as her assistant. This evidence, when viewed in
the light most favorable to the government, was sufficient for
the district court to find that King knew at the time of the vio-
lation that Moore was a felon.
[10] Third, King contends that the district court lacked suf-
ficient evidence to find that his misrepresentation to his parole
officer that he worked directly for Coldwell Banker—rather
than for Moore, an independent contractor for Coldwell
Banker—was intentional. At the revocation hearing, King’s
probation officer testified that King specifically admitted to
having misrepresented his position with Coldwell Banker and
generally admitted all of the allegations in the petition on
three other occasions. And King never produced any docu-
mentation suggesting he worked directly for Coldwell
Banker; instead, the pay stubs he produced were from “123
Investment Inc.” and signed by Anna Moore. King empha-
1
King argues that his response indicated his knowledge of Moore’s
felon status only at the time of the response—not at the time of the viola-
tion. But claiming that her felon status was “common knowledge” makes
sense as a defense to the allegation only if King was aware of her status
at the time of the violation.
9288 UNITED STATES v. KING
sizes that Moore testified that she considered herself to work
for Coldwell Banker, but Moore never claimed to have told
King that he worked for Coldwell Banker. Although perhaps
open to other interpretations, when viewed in the light most
favorable to the government, this evidence was sufficient to
support the district court’s finding that King’s misrepresenta-
tion was intentional.
Thus, King’s sufficiency-of-the-evidence challenges fail.
D. Due Process Challenge to Modification of
Supervised Release Conditions
Fifth, King argues that the district court violated his due
process rights at the initial revocation hearing when it modi-
fied his supervised release conditions pending the full revoca-
tion hearing by adding a computer search condition without
a prior hearing, as required by Federal Rule of Criminal Pro-
cedure 32.1(c). King’s argument is meritless. The district
court held a hearing before adding the computer search condi-
tion. Indeed, the district court refashioned the new condition
after King objected to the condition as proposed by King’s
probation officer. King did not object to the refashioned con-
dition.
[11] King contends that Rule 32.1(c) prohibits the district
court from imposing new conditions without taking any evi-
dence on or sustaining any of the alleged violations. But a
Rule 32.1(c) modification—as opposed to a Rule 32.1(b)
revocation—does not require an evidentiary hearing or a vio-
lation finding. Compare Fed. R. Crim. P. 32.1(b) (providing
for, inter alia, right to evidentiary hearing and counsel before
“revocation”) with Fed. R. Crim. P. 32.1(c) (providing for “a
hearing, at which the person has the right to counsel and an
opportunity to make a statement and present any information
in mitigation” before “modif[ication]”).
UNITED STATES v. KING 9289
E. Challenges to Additional Post-Revocation Conditions
Finally, King challenges the district court’s post-revocation
imposition of two additional supervised release conditions:
(1) the condition subjecting King and his property to search
upon reasonable suspicion of a violation of supervision or of
unlawful conduct, and (2) the condition prohibiting King from
associating with inmates in state or local prisons. We review
the district court’s imposition of supervised release conditions
for abuse of discretion. See United States v. Weber, 451 F.3d
552, 557 (9th Cir. 2006). The district court has “significant
discretion” and “ ‘wide latitude’ ” to impose supervised
release conditions reasonably related to, inter alia, the nature
and circumstances of the offense, the defendant’s history and
characteristics, and the sentencing goals of deterring future
offenses, protecting the public, and rehabilitating the defen-
dant. Id. (citation omitted); see 18 U.S.C. § 3583(d).
[12] Here, in light of the multiple supervised release viola-
tions that the district court found King to have committed and
his “complete and obvious pattern of deception” towards the
district court and his probation officer, the imposition of the
search condition was reasonably related to protecting the pub-
lic and preventing recidivism. We thus hold that the district
court’s imposition of this condition was not an abuse of dis-
cretion. See United States v. Betts, 511 F.3d 872, 876 (9th Cir.
2007) (imposition of search condition with no reasonable sus-
picion requirement was not abuse of discretion).
[13] Likewise, because of those same considerations, and
also because of King’s history of communicating with
inmates in violation of more generally worded supervised
release conditions, the district court’s imposition of the no-
association-with-inmates condition was reasonably related to
King’s offense and history and to deterring further offenses.
United States v. Napulou, 593 F.3d 1041 (9th Cir. 2010), cited
by King, is not to the contrary. Napulou held that a condition
forbidding association with persons with misdemeanor con-
9290 UNITED STATES v. KING
victions was not reasonably related to rehabilitation or public
safety because its sweep included many currently law-abiding
individuals and many individuals who had committed only
minor offenses. Id. at 1045-46. Here, by contrast, King’s con-
dition forbids association only with individuals currently
imprisoned for any crime—thereby tending to exclude minor
misdemeanors (which rarely result in prison sentences) and
law-abiding individuals with long-past convictions.2
III. CONCLUSION
For the foregoing reasons, we affirm the district court’s
judgment revoking King’s supervised release term and impos-
ing additional supervised release conditions.
AFFIRMED.
2
King may, of course, obtain special permission to associate with a par-
ticular inmate. And as the government represented at argument, the non-
association condition goes into effect only when King begins his super-
vised release term—not during his prison sentence. See also Neil P.
Cohen, The Law of Probation and Parole § 9:11 (2d ed. 1999) (“[C]ourts
have used common sense in interpreting nonassociation probation condi-
tions. Often such a condition is part of a long list of terms that includes
service of a short jail sentence. Obviously, while in jail probationers can-
not comply with a condition dictating that they refrain from associating
with persons with a criminal record. In such cases courts wisely hold that
the nonassociation condition does not go into effect until after the jail con-
dition has been fulfilled.”) (footnotes omitted).