FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-10383
Plaintiff-Appellee,
D.C. No.
v. 1:08-cr-00262-LJO-1
LARRY OCHOA,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, Chief District Judge, Presiding
Submitted May 17, 2019 *
San Francisco, California
Filed July 29, 2019
Before: Sandra S. Ikuta and Morgan Christen, Circuit
Judges, and Brian M. Morris, ** District Judge.
Opinion by Judge Morris
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
**
The Honorable Brian M. Morris, United States District Judge for
the District of Montana, sitting by designation.
2 UNITED STATES V. OCHOA
SUMMARY ***
Criminal Law
The panel reversed in part and affirmed in part the
district court’s judgment in a case in which the district court
revoked the defendant’s supervised release on the ground
that he violated a special condition that, among other things,
prohibited him from frequenting a place whose primary
purpose is to provide access to material depicting and/or
describing sexually explicit conduct.
Referencing the dictionary definitions of “frequent,” the
panel reversed the district court’s finding that the defendant
violated the condition by visiting an adult-themed business
only once.
The panel rejected the defendant’s contentions that the
special condition is unconstitutionally vague, is overbroad,
and deprived him of more liberty than reasonably necessary.
The panel wrote that the condition is not meaningfully
distinguishable from a condition this court approved in
United States v. Gnirke, 775 F.3d 1155 (9th Cir. 2015), and
properly abridges the defendant’s right to free speech in
order to effectively address his sexual deviance problem.
The panel remanded for further proceedings.
***
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. OCHOA 3
COUNSEL
Gary P. Burcham, Burcham & Zugman, San Diego,
California, for Defendant-Appellant.
Vincente A. Tennerelli, Assistant United States Attorney;
Camil A. Skipper, Appellate Chief; McGregor Scott, United
States Attorney; United States Attorney’s Office, Fresno,
California; for Plaintiff-Appellee.
OPINION
MORRIS, District Judge:
Defendant-Appellant, Larry Ochoa, appeals the district
court’s finding that Ochoa “frequented” a prohibited place
in violation of his supervised release special condition
number nine. Ochoa also challenges the constitutionality of
special condition nine on over-breadth and vagueness
grounds. We possess jurisdiction pursuant to 28 U.S.C.
§ 1291 and 18 U.S.C. § 3742(a).
I. Facts and Procedural History
Ochoa pled guilty to one count of possessing child
pornography in violation of 18 U.S.C. § 2252(a)(4)(B). The
district court sentenced Ochoa to seventy-eight months in
prison and 120 months of supervised release. The district
court revoked Ochoa’s supervised release and sentenced him
to time served and 119 months of supervised release. The
district court imposed fourteen special conditions.
Special condition nine restricts Ochoa’s access to “any
material depicting and/or describing sexually explicit
conduct involving adults, defined as sexually stimulating
4 UNITED STATES V. OCHOA
depictions of adult sexual conduct that are deemed
inappropriate by the defendant’s probation officer.” Special
condition nine clarifies that “sexually stimulating
depictions” include “computer images, pictures,
photographs, books, writings, drawings, videos, or video
games depicting such conduct.” Special condition nine
provides further that Ochoa “shall not frequent any place
whose primary purpose is to sell, rent, show, display, or give
other forms of access to, material depicting and/or
describing sexually explicit conduct.”
The district court revoked Ochoa’s supervised release a
second time based on Ochoa’s admission to a polygraph
examiner that he had watched a pornographic movie at
Suzie’s Adult Superstores (“Suzie’s”) in Fresno, California.
The revocation petition alleged that Ochoa had violated
special condition nine by “enter[ing] an adult themed
business in Fresno, California, where he paid to view an
adult pornographic movie.” The district court rejected
Ochoa’s contention that special condition nine proved
unconstitutionally vague, over-broad, and unreasonably
restricted his First Amendment rights. The district court also
rejected Ochoa’s argument that special condition nine
improperly delegated to his probation officer the authority to
determine what proved inappropriate or sexually explicit.
A superseding petition to revoke Ochoa’s supervised
release alleged that Ochoa had violated both special
condition nine’s prohibition on “viewing” explicit content
and “frequenting” a “place whose primary purpose” is to
provide access to “material depicting and/or describing
sexually explicit conduct.” The district court found that the
government had failed to establish the first allegation of
having viewed pornography. The district court found that
the government had proven the second allegation that Ochoa
UNITED STATES V. OCHOA 5
had frequented a “place whose primary purpose” is to
provide access to “material depicting and/or describing
sexually explicit conduct.” The district court sentenced
Ochoa to seven months’ custody followed by 110 months of
supervised release.
II. Analysis
Ochoa raises two challenges. Ochoa argues first that the
district court erred in finding that he “frequented” Suzie’s
when Ochoa had visited Suzie’s only once. Ochoa also
challenges the constitutionality of special condition nine on
the basis that it proves unconstitutionally over-broad and
vague. We review de novo whether a supervised release
condition violates the Constitution or exceeds the
permissible statutory penalty. United States v. Watson,
582 F.3d 974, 981 (9th Cir. 2009).
A. The District Court Erred in Finding that Ochoa
Frequented a Prohibited Place
A sufficiency of evidence challenge requires us to ask
whether “viewing the evidence in the light most favorable to
the government, any rational trier of fact could have found
the essential elements of a violation by a preponderance of
the evidence.” United States v. King, 608 F.3d 1122, 1129
(9th Cir. 2010) (quoting United States v. Jeremiah, 493 F.3d
1042, 1045 (9th Cir. 2007)). The Government argues that
Ochoa’s probation officer met with Ochoa twice to review
his supervised release conditions and that Ochoa indicated
that he understood each condition. Ochoa also possessed his
probation officer’s cell phone number and understood that
he could contact his probation officer “any time he was
considering engaging in conduct that might violate” the
terms of his supervised release.
6 UNITED STATES V. OCHOA
We look to the dictionary definition to define a term
within a condition of supervised release. King, 608 F.3d
at 1128. The dictionary defines the term “frequent” as “to
visit often,” “go to often,” “be in often,” “to be a regular
customer of,” and “to associate with, be in or resort to often
or habitually.” See United States v. Philips, 704 F.3d 754
(2012). The district court found that Ochoa had visited
Suzie’s only once. The definition of the word “frequent”
leads us to determine that Ochoa did not in fact “frequent,”
“visit often,” or “go to [Suzie’s] often.” Although the
Government argues that Ochoa’s probation officer
possessed the authority to further define special condition
nine, there remains no evidence in the record indicating that
Ochoa’s probation officer explained that “frequent” meant
anything other than the dictionary definition. We reverse the
district court’s finding that Ochoa violated special condition
nine’s prohibition that he not “frequent” a place, such as
Suzie’s, that offers material depicting and/or describing
sexually explicit conduct.
B. The District Court Did Not Err by Concluding
that Special Condition Nine Not Is Not
Unconstitutionally Vague or Over-Broad.
Ochoa argues that special condition nine is
unconstitutionally vague. A condition of supervised release
violates due process if it uses terms so vague that it “fail[s]
to give a person of ordinary intelligence fair notice that it
would apply to the conduct contemplated.” United States v.
Rearden, 349 F.3d 608, 614 (9th Cir. 2003). Ochoa contends
that the language of special condition nine fails to provide
adequate notice of what conduct the condition precludes.
The district court could not remedy the inherent vagueness,
according to Ochoa, by delegating discretion to the
probation officer’s own subjective standards. In rejecting
UNITED STATES V. OCHOA 7
Ochoa’s vagueness argument, the district court relied on the
analysis in United States v. Gnirke, 775 F.3d 1155, 1166 (9th
Cir. 2015).
Gnirke had been convicted for hands-on abuse of his
girlfriend’s son. Id. at 1158. Gnirke’s discharge evaluation
recommended that he should not “view or possess anything
sexually explicit or suggestive, including books, videos,
[and] magazine cut-outs . . .” Id. The district court
consequently imposed a condition that required that Gnirke
“not possess any materials . . . that depicts ‘sexually explicit
conduct’ involving children and/or adults, as defined by
18 [U.S.C.] § 2256(2) . . .” Id. at 1159.
The Gnirke panel determined that Gnirke’s special
condition deprived him of more liberty than reasonably
proved necessary, because the condition restricted “Gnirke’s
access to depictions of adult sexual conduct using a statutory
definition of ‘sexually explicit conduct’ that Congress has
applied only to depictions of children[,]” which
encompassed “much more than what is commonly
understood as pornography in the context of adult sexual
activity.” Gnirke, 775 F.3d at 1161. The panel declined to
remand. The panel instead deemed it “appropriate to provide
the district court with a workable alternative rather than [a]
directive to ‘try again.’” Id. at 1166 (internal quotations in
original). As to Gnirke’s access to materials depicting adult
sexual activity, the panel construed the condition to apply
“to any materials with depictions of ‘sexually explicit
conduct’ involving adults, defined as explicit sexually
stimulating depictions of adult sexual conduct that are
deemed inappropriate by Gnirke’s probation officer.” Id.
The panel further recognized that inevitably, the probation
officer “will have some degree of discretion to decide which
materials the condition restricts[,]” id. (citing United States
8 UNITED STATES V. OCHOA
v. Bee, 162 F.3d 1232, 1234–35 (9th Cir. 1998)), but any
issue arising from the exercise of discretion by a probation
officer would be subject to judicial review. Gnirke, 775 F.3d
at 1167.
Ochoa argues that the addition of the term “descriptions”
in special condition nine results in confusion because this
condition fails to place Ochoa on “clear notice of what
conduct will (and will not) constitute a supervised release
violation.” United States v. Chapel, 428 F.2d 472, 473–74
(9th Cir. 1970). We conclude that the district court did not
err by imposing special condition nine, because the
condition is not meaningfully distinguishable from the one
we approved in Gnirke. In particular, special condition nine
defines “depicting and/or describing sexually explicit
conduct involving adults” in a nearly identical manner to
Gnirke’s definition of “depictions of sexually explicit
conduct involving adults.” See Gnirke, 775 F.3d at 1166.
Special condition nine is therefore not unconstitutionally
vague. Relatedly, Ochoa argues that special condition nine’s
alleged vagueness problem cannot be solved by delegating
interpretive authority to a probation officer. It bears noting
that Gnirke did not approve delegating to a probation officer
the ability to craft special conditions of supervised release,
nor did it allow a probation officer to cure an
unconstitutionally vague special condition. Id. at 1166–67;
see United States v. Evans, 883 F.3d 1154, 1164 (9th Cir.
2018). Rather, Gnirke recognized that probation officers
interpret special conditions, and that where a special
condition deals with difficult-to-define terms, it is inevitable
that a probation officer will make certain judgment calls
about how to interpret the special condition. Gnirke,
775 F.3d at 1166. In this way, a probation officer’s
judgment proves relevant to Ochoa’s understanding of, and
UNITED STATES V. OCHOA 9
the application of, special condition nine. See id. at 1163;
see also Bee, 162 F.3d at 1236.
Ochoa also argues that special condition nine is
overbroad, and that by restricting access to “material
depicting and/or describing sexually explicit conduct
involving adults,” the district court deprived Ochoa of more
liberty than reasonably necessary. He argues that
descriptions of sexually explicit conduct involving adults
encompass popular modern literature. We are mindful that
special condition nine prevents Ochoa from frequenting a
“place whose primary purpose” is to provide access to
sexually explicit materials, and that the “primary purpose”
language significantly curtails the condition’s reach. As to
the condition’s restriction on Ochoa’s ability to possess,
own, use, view, or read these materials, district courts may
impose “conditions of supervised release if they are
reasonably related to the goal of deterrence, protection of the
public, or rehabilitation of the offender, and involve no
greater deprivation of liberty than is reasonably necessary.”
United States v. Daniels, 541 F.3d 915, 924 (9th Cir. 2008)
(internal quotation marks omitted). These conditions must
be “tailored to the defendant’s offense, personal history and
characteristics.” United States v. Wagner, 872 F.3d 535, 542
(7th Cir. 2017). Ochoa admitted to possessing more than
600 images of child pornography. We conclude that special
condition nine is not overbroad given these circumstances,
because the condition appropriately restricts his access to
materials depicting or describing sexually explicit conduct
involving adults. In other words, the condition properly
abridges Ochoa’s right to free speech “to effectively address
[his] sexual deviance problem.” Rearden, 349 F.3d at 619.
The district court did not err by limiting Ochoa’s access to
the materials as defined in special condition nine.
10 UNITED STATES V. OCHOA
III. Conclusion
The judgment of the district court is REVERSED, IN
PART, and AFFIRMED, IN PART, and remanded for
further proceedings consistent with this opinion.