United States v. Green

12 F.4th 970

UNITED STATES of America, Plaintiff-Appellee,

v.William GREEN, Defendant-Appellant.

No. 20-50257

United States Court of Appeals, Ninth Circuit.

Submitted August 5, 2021^* Pasadena, California

Filed September 8, 2021

Kenneth M. Miller, Law Office of Kenneth M. Miller, Capistrano Beach, California, for Defendant-Appellant.

Randy S. Grossman, Acting United States Attorney; Daniel E. Zipp, Chief, Appellate Section, Criminal Division; David Chu, Assistant United States Attorney; United States Attorney's Office, San Diego, California; for Plaintiff-Appellee.

Before: Richard A. Paez, Consuelo M. Callahan, and Andrew D. Hurwitz, Circuit Judges.

Partial Concurrence and Partial Dissent by Judge Paez

OPINION

CALLAHAN, Circuit Judge:

At issue is whether a condition of supervised release that appellant William Green may not "patronize any place" where sexually explicit "materials or entertainment are the primary material or entertainment available" barred him from visiting a free pornography website. We hold that it does. Interpreting this language, as Green argues, to require that an individual directly purchase goods or services from a physical location, ignores the common understanding of these terms as they are used in today's digital age, particularly in light of the oral instructions given by the district court to Green here. We thus determine that the district court did not abuse its discretion in revoking Green's term of supervised release.¹

I

In 2013, Green pleaded guilty to possession of images of minors engaged in sexually explicit conduct in violation of 18 U.S.C. § 2252(a)(4)(B), and was sentenced to 87 months’ imprisonment and ten years of supervised release. One of the conditions of supervised release was that Green may

[n]ot possess or view any materials such as videos, magazines, photographs, computer images, or other matter that depicts "sexually explicit conduct" involving children as defined by 18 U.S.C. § 2256(2) and/or "actual sexually explicit conduct" involving adults as defined by 18 U.S.C. § 2257(h)(1), and not patronize any place where such materials or entertainment are the primary material or entertainment available.

Green served his term of imprisonment and was released in 2017. In March 2020, Green used his monitored cell phone to visit a website where sexually explicit conduct involving adults was the primary material available.² The district court found that Green violated the terms of his supervised release by "patroniz[ing] a place" where sexually explicit materials were the primary entertainment available. The court sentenced Green to 18 months’ imprisonment followed by ten years of supervised release. Green timely appealed.

II

"We review a district court's revocation of a term of supervised release for an abuse of discretion." United States v. Thum , 749 F.3d 1143, 1145 (9th Cir. 2014). "In evaluating the sufficiency of the evidence supporting a supervised release revocation, ‘we 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.’ " Id. at 1145–46 (quoting United States v. King , 608 F.3d 1122, 1129 (9th Cir. 2010) ).

Green contends that he did not violate the terms of his supervised release because he did not purchase any explicit material from the pornographic website he visited and therefore he did not "patronize" the website. Green also contends that he did not visit a "place" because a website is not a "place."

We are not persuaded. In determining the meaning of terms used in supervised release conditions, "we may consult the definitions of those terms in popular dictionaries." United States v. Gibson , 998 F.3d 415, 419 n.5 (9th Cir. 2021) (quoting Metro One Telecomms., Inc. v. Comm'r , 704 F.3d 1057, 1061 (9th Cir. 2012) ). "Patronize" has been broadly defined to mean "[t]o ... support (a shop, restaurant, theatre, etc.) with one's custom; to frequent, esp[ecially] as a customer or visitor[.]" Oxford English Dictionary Online.³ Other sources have defined the word to mean to "provide aid or support." Merriam-Webster's Collegiate Dictionary, 909 (11th ed. 2003); see also Black's Law Dictionary (11th ed. 2019) (defining "patron" in part as both "a customer or client of a business, esp[ecially] a regular one" and as "[s]omeone who protects, supports, or champions some person or thing, such as an institution, social function, or cause"); cf. United States v. Caraher , 973 F.3d 57, 64 (2d Cir. 2020) (referring to users of child-pornography websites as "patrons" of those sites); United States v. Tagg , 886 F.3d 579, 584 (6th Cir. 2018) (same); United States v. Brune, 767 F.3d 1009, 1024 (10th Cir. 2014) (referring to users of the internet as "Internet patrons"). Consistent with this expansive definition, we have previously stated that the term "patronize" encompasses a wide range of "everyday activities like shopping, seeing a mainstream movie, reading a mainstream magazine, or watching television."

United States v. Gnirke , 775 F.3d 1155, 1163 (9th Cir. 2015). As these examples make clear, an individual can thus "patronize" a business merely by visiting it, or in the case of media, by viewing or consuming it. See id. Here, Green patronized the pornographic website simply by visiting it.

Green's argument that a website is not a "place" fares no better. "Place" includes not only a physical location, but also "an indefinite region or expanse." Merriam-Webster's Collegiate Dictionary, 946 (11th ed. 2003). A website qualifies as an indefinite region or expanse located in the digital realm. Consistent with this understanding, a "website" has been defined as "a place on the internet where information is available about a particular subject, organization, etc." Macmillan Dictionary Online (emphasis added).⁴ Therefore, a "place" does not necessitate the presence of a physical environment; a virtual website can also be a "place" as that term is commonly used and understood. Visiting a website primarily featuring pornography thus constitutes "patronizing a place" under a contemporary and common sense understanding of those terms.

This interpretation is further buttressed by the district court's oral statements at the January 2018 hearing at which the condition was imposed. There, the district court stated, "You're not to view any form of media, which includes digital or print media, that depicts sexually explicit conduct." The court did not specify that Green was forbidden only from purchasing such materials at a traditional storefront. In fact, the court explicitly explained that "[w]hether it's on a handheld cell phone or a media device or looking at the internet or going to the library or anything else, you're not to view those things, not to try to access sites that have that type of material on them as the predominant offering." The court then asked Green whether he understood, to which Green responded, "Yes, sir." Additionally, these conditions made sense in the context of Green's underlying conviction for "possession of images of minors engaged in sexually explicit conduct" in violation of 18 U.S.C. § 2252(a)(4)(B) and which involved Green's use of the internet. Therefore, our interpretation of the condition is consistent with the district court's oral instructions and Green's own understanding that the condition barred Green from accessing pornographic websites.⁵

Green also argues that the district court clearly erred in finding that he patronized the pornographic websites because there was insufficient evidence that he viewed pornographic videos on those sites. Specifically, while the computer monitoring system reported that Green clicked on various pornographic videos, the monitoring software reported that each video remained on the screen for a duration of 0:00. This argument fails for two reasons. First, even if Green did not actually watch the videos, just visiting the pornography website in the first place violated the terms of his supervised release for the reasons set forth above. Second, probation's monitoring software reported that the user viewed the webpages containing the videos using incognito mode, "a mode that can be set while web browsing that allows for private browsing," and which inhibited the monitoring system from collecting certain data on Green's activities.

Upon reviewing the evidence in the light most favorable to the government, the district court did not clearly error in drawing the inference that Green watched the videos notwithstanding the 0:00 viewing duration reported by the monitoring software.

III

The condition of supervised release that the district court determined Green violated also separately prohibited him from "possess[ing] or view[ing] any materials such as videos, magazines, photographs, computer images, or other matter that depicts ‘sexually explicit conduct’ involving children as defined by 18 U.S.C. § 2256(2) and/or ‘actual sexually explicit conduct’ involving adults as defined by 18 U.S.C. § 2257(h)(1) ...." While the parties do not focus their arguments on this provision, we find that the record also supports the revocation of Green's supervised release on the ground that Green ran afoul of this restriction when he viewed content on the pornographic website as discussed above.

IV

We agree with the district court that Green's supervised release condition barring him from "patroniz[ing] any place" where sexually explicit materials are available is properly read to have prohibited him from visiting a pornographic website. Alternatively, the record clearly supports the conclusion that Green searched for and viewed materials depicting sexually explicit conduct, which constituted an independent violation of the special condition at issue. The district court therefore did not abuse its discretion in determining that Green violated his release conditions. The judgment of the district court is AFFIRMED ...