United States v. Ochoa

932 F.3d 866
CourtCourt of Appeals for the Ninth Circuit
DecidedJuly 29, 2019
DocketNo. 18-10383
StatusPublished
Cited by16 cases

This text of 932 F.3d 866 (United States v. Ochoa) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Ochoa, 932 F.3d 866 (9th Cir. 2019).

Opinion

MORRIS, District Judge:

*868Defendant-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 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 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 *869statutory 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.

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. Phillips , 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.

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Cite This Page — Counsel Stack

Bluebook (online)
932 F.3d 866, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-ochoa-ca9-2019.