United States v. Ochoa, No. 18-10383 (9th Cir. 2019)
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Defendant appealed the district court's finding that he "frequented" a prohibited place in violation of a special condition of his supervised release. The special condition was imposed, along with other special conditions, after defendant pleaded guilty to possessing child pornography. The district court concluded that defendant violated his special condition by watching a pornographic movie at an adult store.
The Ninth Circuit reversed in part, holding that the district court erred in finding that defendant frequented a prohibited place, because defendant visited an adult store only once. The panel affirmed in part, holding that the district court did not err by concluding that the special condition was not unconstitutionally vague or overbroad, because the condition was not meaningfully distinguishable from a condition the panel approved in United States v. Gnirke, 775 F.3d 1155 (9th Cir. 2015), and properly abridged defendant's right to free speech in order to effectively address his sexual deviance problem. Accordingly, the panel remanded for further proceedings.
Court Description: 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.
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