932 F.3d 866
9th Cir.2019Background
- Defendant Larry Ochoa pleaded guilty to possession of child pornography; sentenced to prison followed by supervised release with 14 special conditions.
- Special condition nine prohibited access to or frequenting places whose primary purpose is to provide material "depicting and/or describing sexually explicit conduct involving adults," defined to include images, books, videos, etc., and left assessment of "inappropriate" to the probation officer.
- A revocation petition alleged Ochoa admitted (via polygraph) to watching a pornographic movie at Suzie's Adult Superstores in Fresno.
- The district court found Ochoa did not view pornography there but did "frequent" the store and revoked supervised release, imposing custody and extended supervised release.
- Ochoa appealed, arguing (1) insufficient evidence he "frequented" Suzie's (he visited once), and (2) special condition nine is unconstitutionally vague and overbroad (and improperly delegates discretion to the probation officer).
Issues
| Issue | Ochoa's Argument | Government's/Probation Argument | Held |
|---|---|---|---|
| Whether Ochoa "frequented" a prohibited place | A single visit to Suzie's does not satisfy "frequent" | Ochoa understood conditions and could consult probation officer; probation testimony supported violation | Reversed: one visit is not "frequent" under ordinary dictionary meaning |
| Whether special condition nine is unconstitutionally vague | Language (including "describing" and "inappropriate" as judged by PO) fails to give fair notice; improper delegation | Condition mirrors a constitutionally acceptable formulation and PO interpretation/judgment is inevitable and reviewable | Affirmed: condition not unconstitutionally vague |
| Whether special condition nine is overbroad relative to First Amendment | Restricting "descriptions" could reach lawful adult works; deprives more liberty than necessary | Condition is tailored to offender's history (600+ child porn images) and limited by "primary purpose" language for places | Affirmed: not overbroad given offense history and limiting language |
| Whether delegation to probation officer invalidates the condition | PO discretion cannot cure vagueness | PO must make interpretive judgments; such exercise is inevitable and subject to judicial review | Affirmed: delegation of interpretive judgments permissible in practice (not a cure for an inherently vague term) |
Key Cases Cited
- United States v. Gnirke, 775 F.3d 1155 (9th Cir. 2015) (construed supervised-release restriction on adult sexually explicit material and recognized PO interpretive role)
- United States v. King, 608 F.3d 1122 (9th Cir. 2010) (use dictionary definitions to construe terms in supervised-release conditions)
- United States v. Rearden, 349 F.3d 608 (9th Cir. 2003) (due-process vagueness standard for supervised-release conditions)
- United States v. Bee, 162 F.3d 1232 (9th Cir. 1998) (probation officers will exercise interpretive discretion over conditions)
- United States v. Daniels, 541 F.3d 915 (9th Cir. 2008) (conditions must be reasonably related to deterrence, protection, or rehabilitation and not more restrictive than necessary)