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Probation Terms: Is Visiting a Website Patronizing a Place?
Thirty years ago, “patronizing a place” meant directly buying goods or services from a physical location, such as buying a dinner at a certain restaurant. Nowadays, does patronizing a place include visiting a website and, even if one does not buy goods of services, one provides traffic to it, which helps the business?
This issue faced the United States Court of Appeals for the Ninth Circuit in Pasadena in the case of United States v. William Green (2021 DJDAR 9335).
The Gist of this Article: When a term of probation includes a prohibition that the probationer not visit certain businesses, visiting the website of a pornographic video retailer is a probation violation, even though the probationer did not walk into the store (which was impossible anyways because it was online).
In 2013, Green had 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 in federal prison and ten years of supervised release.
One of the conditions of his supervised release was that Green may “not 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 in federal prison and was released in 2017.
During his supervised release, his cell phone was actively monitored pursuant to the terms of the plea bargain. Almost immediately, starting in 2017, he began violating the terms of his supervised release. In March 2020, however, it seemed probation had had enough. On or about this date, he used his monitored cell phone to visit a website where sexually explicit conduct involving adults was the primary material available.
Probation notified the United States District Court judge for the Southern District of California supervising Green’s probation. The judge found Green had violated the terms of his supervised release by “patronizing a place” where sexually explicit materials were the primary entertainment available. The judge sentenced Green to 18 months in federal prison followed by ten years of supervised release.
U.S. Ninth Circuit Court of Appeals PasadenaGreen appealed this order to the United States Court of Appeals for the Ninth Circuit. The Ninth Circuit began its review by explaining that in reviewing a district court’s revocation of a term of supervised release, it can only reverse it by finding the district court abused its discretion. United States v. Thum (9th Cir., 2014) 749 F.3d 1143, 1145.
The appellate court then turns to whether a rational trier of fact could have found a violation by a preponderance of the evidence. Thum, supra, at 1145-1146 (quoting United States v. King (9th Cir., 2010) 608 F. 3d 1122, 1129.
The Ninth Circuit acknowledged that Green did not purchase any explicit material from the pornographic website he visited. Green argued that this meant he did not patronize the website and moreover, he did not visit a place because a website is not a place.
The Ninth Circuit explained that it was not persuaded by Green’s argument. The Ninth Circuit explained that the Oxford English Dictionary Online defines “patronize” more broadly to mean “[t]o . . . support (a shop, restaurant, theatre, etc.) with one’s custom; to frequent, especially as a customer or visitor.” Other sources have defined the word to mean “to provide aid or support.”
In other words, a more expansive definition is proper, and consistent with this, an individual can patronize a business merely by visiting it, or in the case of media, by viewing or consuming it. United States v. Gnirke (9th Cir., 2015) 775 F.3d 1155, 1163.
Turning to Green’s argument that a website is not a “place,” the Ninth Circuit said this argument “fares no better.” However, the Ninth Circuit commented by a footnote that “[w]hile the written condition might have been clearer had it explicitly referenced websites, we nevertheless conclude that a website is a place under the meaning of that term.
We present this case summary to exemplify that it is best to follow probation conditions with a broad view towards such conditions, rather than a narrow view. Certainly, we believe, Green knew his conduct was a violation, but he tried to cleverly rationalize his conduct, but both the district court and the Ninth Circuit were not persuaded.
The citation for the United States Court of Appeals for the Ninth Circuit ruling discussed above is United States v. William Green (9th Cir., 2021) 12 F. 4th 970.
For more information about ambiguity in parole, probation and supervised release terms in California state court cases, please click on the following articles:
