FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

LARRY OCHOA,

Defendant-Appellant.

No. 18-10383

D.C. No.

1:08-cr-00262-LJO-1

OPINION

Appeal from the United States District Court

for the Eastern District of California

Lawrence J. O’Neill, Chief District Judge, Presiding

Submitted May 17, 2019*

San Francisco, California

Filed July 29, 2019

Before: Sandra S. Ikuta and Morgan Christen, Circuit 

Judges, and Brian M. Morris,** District Judge.

Opinion by Judge Morris

 * The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

** The Honorable Brian M. Morris, United States District Judge for 

the District of Montana, sitting by designation.
2 UNITED STATES V. OCHOA

SUMMARY***

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.

 *** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
UNITED STATES V. OCHOA 3

COUNSEL

Gary P. Burcham, Burcham & Zugman, San Diego, 

California, for Defendant-Appellant.

Vincente A. Tennerelli, Assistant United States Attorney; 

Camil A. Skipper, Appellate Chief; McGregor Scott, United 

States Attorney; United States Attorney’s Office, Fresno, 

California; for Plaintiff-Appellee.

OPINION

MORRIS, District Judge:

Defendant-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 
4 UNITED STATES V. OCHOA

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 
UNITED STATES V. OCHOA 5

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 statutory 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.
6 UNITED STATES V. OCHOA

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. Philips, 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. 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, 349 F.3d 608, 614 (9th Cir. 2003). Ochoa contends 

that the language of special condition nine fails to provide 

adequate notice of what conduct the condition precludes. 

The district court could not remedy the inherent vagueness, 

according to Ochoa, by delegating discretion to the 

probation officer’s own subjective standards. In rejecting 
UNITED STATES V. OCHOA 7

Ochoa’s vagueness argument, the district court relied on the 

analysis in United States v. Gnirke, 775 F.3d 1155, 1166 (9th 

Cir. 2015).

Gnirke had been convicted for hands-on abuse of his 

girlfriend’s son. Id. at 1158. Gnirke’s discharge evaluation 

recommended that he should not “view or possess anything 

sexually explicit or suggestive, including books, videos, 

[and] magazine cut-outs . . .” Id. The district court 

consequently imposed a condition that required that Gnirke 

“not possess any materials . . . that depicts ‘sexually explicit 

conduct’ involving children and/or adults, as defined by 

18 [U.S.C.] § 2256(2) . . .” Id. at 1159.

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 ‘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, 775 F.3d at 1161. The panel declined to 

remand. The panel instead deemed it “appropriate to provide 

the district court with a workable alternative rather than [a] 

directive to ‘try again.’” Id. at 1166 (internal quotations in 

original). As to Gnirke’s access to materials depicting adult

sexual activity, the panel construed the condition to apply 

“to any materials with depictions of ‘sexually explicit 

conduct’ involving adults, defined as explicit sexually 

stimulating depictions of adult sexual conduct that are 

deemed inappropriate by Gnirke’s probation officer.” Id. 

The panel further recognized that inevitably, the probation 

officer “will have some degree of discretion to decide which 

materials the condition restricts[,]” id. (citing United States 
8 UNITED STATES V. OCHOA

v. Bee, 162 F.3d 1232, 1234–35 (9th Cir. 1998)), but any 

issue arising from the exercise of discretion by a probation 

officer would be subject to judicial review. Gnirke, 775 F.3d 

at 1167.

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, 428 F.2d 472, 473–74 

(9th Cir. 1970). We conclude that the district court did not 

err by imposing special condition nine, because the 

condition is not meaningfully distinguishable from the one 

we approved in Gnirke. In particular, special condition nine 

defines “depicting and/or describing sexually explicit 

conduct involving adults” in a nearly identical manner to 

Gnirke’s definition of “depictions of sexually explicit 

conduct involving adults.” See Gnirke, 775 F.3d at 1166. 

Special condition nine is therefore not unconstitutionally 

vague. Relatedly, Ochoa argues that special condition nine’s 

alleged vagueness problem cannot be solved by delegating 

interpretive authority to a probation officer. It bears noting 

that Gnirke did not approve delegating to a probation officer 

the ability to craft special conditions of supervised release, 

nor did it allow a probation officer to cure an 

unconstitutionally vague special condition. Id. at 1166–67; 

see United States v. Evans, 883 F.3d 1154, 1164 (9th Cir. 

2018). Rather, Gnirke recognized that probation officers 

interpret special conditions, and that where a special 

condition deals with difficult-to-define terms, it is inevitable 

that a probation officer will make certain judgment calls 

about how to interpret the special condition. Gnirke, 

775 F.3d at 1166. In this way, a probation officer’s 

judgment proves relevant to Ochoa’s understanding of, and 
UNITED STATES V. OCHOA 9

the application of, special condition nine. See id. at 1163; 

see also Bee, 162 F.3d at 1236.

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, 541 F.3d 915, 924 (9th Cir. 2008) 

(internal quotation marks omitted). These conditions must 

be “tailored to the defendant’s offense, personal history and 

characteristics.” United States v. Wagner, 872 F.3d 535, 542 

(7th Cir. 2017). Ochoa admitted to possessing more than 

600 images of child pornography. We conclude that special 

condition nine is not overbroad given these circumstances, 

because the condition appropriately restricts his access to 

materials depicting or describing sexually explicit conduct 

involving adults. In other words, the condition properly 

abridges Ochoa’s right to free speech “to effectively address 

[his] sexual deviance problem.” Rearden, 349 F.3d at 619. 

The district court did not err by limiting Ochoa’s access to 

the materials as defined in special condition nine.
10 UNITED STATES V. OCHOA

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.