US v. Ochoa, No. 19-10383 (7-29-19)(Morris w/Ikuta & Christen). An interesting “win” on supervised release (SR) conditions. Such wins are not “frequent,” which is the issue of this appeal.

The defendant was under SR conditions for a sexual offense. One was a “special condition” that he could not “frequent” places that sell, provide, have access to  sexual explicit material. 

At a polygraph, the defendant admitted that he saw an adult film at an adult theater. He admitted one time. This was the basis for the SR revocation.

The 9th reversed. Cracking open the dictionary, the 9th reads that “frequent” is defined as “often” or several and so forth. It was more than once. The 9th rejects the government’s position that the defendant was informed about this prohibition in two meetings. The 9th looked at what was written.

The 9th rejects the defendant’s challenge to the condition as unconstitutionally vague. The 9th looks to prior precedent, US v. Gnirke, 775 F.3d 1155 (9th Cir. 2015), which held that the condition itself was not vague; it addresses the concerns as to treatment and prevention.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/07/29/18-10383.pdf