United States v. Ochoa
United States v. Ochoa
Opinion of the Court
*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
I. Facts and Procedural History
Ochoa pled guilty to one count of possessing child pornography in violation of
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 ,
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 ,
We look to the dictionary definition to define a term within a condition of supervised release. King ,
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 ,
Gnirke had been convicted for hands-on abuse of his girlfriend's son.
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 *870'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 ,
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 ,
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 ,
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.
Reference
- Full Case Name
- United States v. Larry OCHOA
- Cited By
- 16 cases
- Status
- Published