United States of America v. Jewel Aquino

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JEWEL AQUINO,
Defendant-Appellant.
No. 14-10360
D.C. No.
1:10-cr-00023-
SOM-5
OPINION
Appeal from the United States District Court
for the District of Hawaii
Susan Oki Mollway, Chief District Judge, Presiding
Argued and Submitted
June 8, 2015—Honolulu, Hawaii
Filed July 20, 2015
Before: Kim McLane Wardlaw, Marsha S. Berzon,
and John B. Owens, Circuit Judges.
Opinion by Judge Owens

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UNITED STATES V. AQUINO 2
SUMMARY*
Criminal Law
The panel vacated a sentence imposed upon revocation of
supervised release and remanded for resentencing.
The panel held that the government did not meet its
burden of proving, by a preponderance of the evidence, that
the defendant violated a condition of supervised release that
she answer truthfully all inquiries by her probation officer.
The panel concluded that the government did not prove that
the defendant lied when she denied consuming an illicit drug
because it never established that the variety of “spice” that
she smoked contained a controlled substance. The panel
stated that the district court was also wrong to suggest that the
defendant’s failure to be more forthcoming was a “material
omission.”
Agreeing with the Seventh Circuit, the panel held
impermissibly vague a new special condition that the
defendant not use or possess any substance, controlled or not
controlled, that she believed was intended to mimic the
effects of any controlled substance.
* This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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UNITED STATES V. AQUINO 3
COUNSEL
Salina Kanai Althof (argued), Assistant Federal Defender,
and Peter C. Wolff, Jr., Federal Public Defender, Honolulu,
Hawaii, for Defendant-Appellant.
Thomas J. Brady (argued), Assistant United States Attorney,
and Florence T. Nakakuni, United States Attorney, Honolulu,
Hawaii, for Plaintiff-Appellee.
OPINION
OWENS, Circuit Judge:
Appellant Jewel Aquino challenges (1) the district court’s
finding that she lied to her probation officer when she denied
using any “illicit drugs” and (2) a special condition of
supervised release that prohibits her from knowingly using or
possessing any substance that she “believe[s] is intended to
mimic” the effects of a controlled substance. We have
jurisdiction under 28 U.S.C. § 1291, and we vacate Aquino’s
sentence and remand for resentencing.
I. FACTS
Aquino pleaded guilty to one count of violating 18 U.S.C.
§ 1591(a)(1), (b)(2), and was sentenced to thirty-three months
of incarceration followed by three years of supervised release
with numerous standard and special conditions. Standard
Condition No. 3 required Aquino to “answer truthfully all
inquiries by the probation officer.”

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UNITED STATES V. AQUINO 4
Upon release from prison, Aquino did poorly on
supervised release, with a series of violations in 2013
(including a violation of Standard Condition No. 3). The
district court sentenced her to nine months’ imprisonment,
followed by twenty-four months of supervised release.
Aquino stumbled again in 2014. On May 28, 2014, her
probation officer called her about a missed mandatory
counseling session, and Aquino’s speech sounded slurred.
When questioned about her speech, Aquino “denied
consuming alcohol, taking medication or using any illicit
drugs.” On May 29, Aquino called her probation officer and
said that she had been in a car accident the day before. She
said that she had passed out after speaking with the probation
officer, and the next thing she remembered was first
responders waking her up. Her young child had been in the
car, along with a friend (who took the child from the car after
the accident). On May 30, Aquino reported to the probation
office and took a drug test, which was “presumptive positive
for spice,” a synthetic form of marijuana. Aquino admitted
that she had smoked spice on May 28 “to take the edge off,”
and that a friend had told her that spice would not appear on
a drug test.
The probation officer alleged numerous violations against
Aquino, and she admitted several. After a couple of hearings
and consultation with counsel, however, Aquino denied the
third alleged violation: that she “failed to answer truthfully
this officer’s inquiry on 5/28/2014, in violation of Standard
Condition No. 3.” A laboratory drug test, which checked for
fifteen of the hundreds of synthetic marijuana compounds,
came back negative, meaning that it was unclear whether the
substance that Aquino consumed was actually a controlled
substance. The probation officer also did not testify at any of

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UNITED STATES V. AQUINO 5
the hearings, so the prosecutor was stuck with the statement
as alleged; he did not provide any additional context or details
as to the conversation between the probation officer and
Aquino.1
Aquino argued that while she smoked spice, the
government had failed to prove that it was an “illicit
drug”—the laboratory drug test did not reveal the presence of
any controlled substances in Aquino’s system. Therefore,
according to Aquino, the government could not prove that her
denial of consuming an “illicit drug” was in fact untruthful in
violation of Standard Condition No. 3. The district court,
concerned with Aquino’s poor behavior on release and her
questionable candor, found that she had violated the condition
because “she would have known that the officer was trying to
figure out why is [her] speech slow and slurred. . . . [So] even
in the best case scenario looking at this report, I think there
was a material omission.”
Due to this violation (as well as the three other violations
that Aquino admitted and are not in dispute), the district court
sentenced Aquino to three months’ imprisonment with
twenty-one months of supervised release to follow. The court
also added Special Condition No. 9: “[Y]ou may not
knowingly use or possess any substance, controlled or not
1 For example, it is possible that the probation officer asked Aquino if
she was intoxicated, or if she had smoked anything. A denial as to these
questions would have been untruthful. But because the probation officer
did not testify, we are limited to the written allegation. We appreciate the
prosecutor’s candor during argument that, in hindsight, he could have
called the probation officer as a witness and provided more context for the
conversation.

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UNITED STATES V. AQUINO 6
controlled, that you believe is intended to mimic the effect[s]
of any controlled substance.”2
II. STANDARD OF REVIEW
“On a sufficiency-of-the-evidence challenge to 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.’” 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)).
“‘We review for abuse of discretion the conditions of
supervised release set by the district court and challenged on
. . . appeal’ when trial counsel objects to a supervised release
condition.” United States v. Wolf Child, 699 F.3d 1082, 1089
(9th Cir. 2012) (ellipsis in original) (quoting United States v.
Napulou, 593 F.3d 1041, 1044 (9th Cir. 2010)). “Whether a
supervised release condition illegally exceeds the permissible
statutory penalty or violates the Constitution is reviewed de
novo.” United States v. Watson, 582 F.3d 974, 981 (9th Cir.
2009).
2 The written version of Special Condition No. 9 differs slightly. While
the oral condition usually trumps the written when there is a discrepancy,
United States v. Fu Sheng Kuo, 620 F.3d 1158, 1163 (9th Cir. 2010), any
difference is immaterial here because we vacate this condition, see infra.

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UNITED STATES V. AQUINO 7
III. DISCUSSION
A. Standard Condition No. 3
“[I]t is the government that bears the burden to
demonstrate that a defendant has violated a condition of his
supervised release.” United States v. Weber, 451 F.3d 552,
559 n.9 (9th Cir. 2006). While the burden is only a
preponderance of the evidence (and not beyond a reasonable
doubt), to prove the violation “there must still be credible
evidence the releasee actually violated the terms of
supervised release.” United States v. Perez, 526 F.3d 543,
547 (9th Cir. 2008). To satisfy its burden as to Standard
Condition No. 3, the government needed to show that Aquino
did not “answer truthfully” when she “denied consuming
alcohol, taking medication or using any illicit drugs.”
The government failed to meet its burden. The
government proved that Aquino (1) smoked spice, (2) was
irresponsible, and (3) was being coy. But it never
demonstrated that Aquino in fact lied when she denied
consuming an “illicit drug,” as it never established that the
variety of spice that Aquino smoked contained a controlled
substance. As far as the record establishes, her denial, while
evasive, was literally true, and literal truth cannot equal
falsity. See Bronston v. United States, 409 U.S. 352, 361–62
(1973); United States v. Castro, 704 F.3d 125, 139 (3d Cir.
2013) (“[W]hen a statement is literally true, it is, by
definition, not false and cannot be treated as such under a
perjury-type statute, no matter what the defendant’s
subjective state of mind might have been.”). See generally
Emily Phillips, Perjury, 51 Am. Crim. L. Rev. 1521, 1529–32
(2014). Aquino cannot be punished because her probation
officer asked the wrong question. See Bronston, 409 U.S. at

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UNITED STATES V. AQUINO 8
362; United States v. Sainz, 772 F.2d 559, 564 (9th Cir.
1985).
The district court was also wrong to suggest that Aquino’s
failure to be more forthcoming was a “material omission.” In
other contexts, this court has punished material omissions
because they “are necessary to make disclosed statements,
whether mandatory or volunteered, not misleading.” Hanon
v. Dataproducts Corp., 976 F.2d 497, 504 (9th Cir. 1992). In
this case, Aquino’s probation officer did not need to know
whether Aquino had smoked spice to assess accurately her
statement that she had not taken any “illicit drugs.” She was
told the “total story” with respect to this question. See United
States v. Stanert, 762 F.2d 775, 781 (9th Cir.), amended on
other grounds by 769 F.2d 1410 (9th Cir. 1985). To be sure,
the probation officer would have liked to have known that
Aquino had smoked spice, but Aquino’s failure affirmatively
to disclose this information did not make her answer to the
question asked false. Cf. Desai v. Deutsche Bank Sec., Ltd.,
573 F.3d 931, 939 (9th Cir. 2009) (per curiam) (“The person
who omitted the material information must have had a duty
to disclose it to the person supposedly harmed by the
omission.”). If Aquino had robbed a bank and her probation
officer had asked if she had burned a bank down, we would
not say that she failed to “answer truthfully” or made a
material omission by answering “no.”
We appreciate the district court’s concern with Aquino’s
evasiveness, especially in light of her poor performance on
release. But we are limited to the allegation that the
probation officer made, and as to that allegation, there was

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UNITED STATES V. AQUINO 9
insufficient evidence to uphold the violation.3 We therefore
vacate Aquino’s sentence, and remand the case for
resentencing.
B. Special Condition No. 9
We also address Special Condition No. 9, imposed
because the district court wanted to prohibit Aquino from
using any substances that could lead to another dangerous
accident or incident. Cf., e.g., United States v. Sahagun-
Gallegos, 782 F.3d 1094, 1097–98 (9th Cir. 2015)
(addressing applicability of sentencing enhancement “to
provide guidance to the district court on remand”); Saffron v.
Wells Fargo & Co. Long Term Disability Plan, 522 F.3d 863,
872 (9th Cir. 2008) (“In order to avoid unnecessary disputes
on remand, we offer additional guidance for the parties and
the district court . . . .”).
Aquino argues that Special Condition No. 9’s
restriction—that she cannot use any substance that she
“believe[s] is intended to mimic the effect[s] of any
controlled substance”—is impermissibly vague, as it could
cover innocuous substances such as chocolate and coffee,
both of which (a) can be highly addictive, (b) fuel a
significant percentage of American adults daily, and (c) can
serve as an “upper.” Red Bull, Diet Mountain Dew Code
Red, Jolt Cola (popular in the 1980s), and countless other
sodas, for instance, could fall into this category.
3 Though Aquino admitted to three other violations of her conditions of
supervised release, the government does not argue that the district court’s
error was harmless. We decline to sua sponte recognize the error as
harmless, because the issue is “reasonably debatable.” United States v.
Gonzalez-Flores, 418 F.3d 1093, 1101 (9th Cir. 2005).

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UNITED STATES V. AQUINO 10
The district court surely never intended to deprive Aquino
of chocolate or coffee; we know what it was trying to
accomplish, and we agree that it was an appropriate goal. But
“[w]e review the language of the condition as it is written and
cannot assume . . . that it will be interpreted contrary to its
plain language.” United States v. Cope, 527 F.3d 944, 958
(9th Cir. 2008) (quoting United States v. Sales, 476 F.3d 732,
737 (9th Cir. 2007)); see also United States v. Soltero,
510 F.3d 858, 867 n.10 (9th Cir. 2007) (per curiam). Nor can
the government save a condition by “promis[ing] to enforce
it in a narrow manner.” Soltero, 510 F.3d at 867 n.10. And
as written (or here, orally pronounced), Special Condition No.
9 is impermissibly vague. “A supervised release condition
‘violates due process of law if it either forbids or requires the
doing of an act in terms so vague that men of common
intelligence must necessarily guess at its meaning and differ
as to its application.’” King, 608 F.3d at 1128 (quoting
Soltero, 510 F.3d at 866). We agree with the Seventh Circuit
that Aquino should not be forced to guess whether an
overzealous probation officer will attempt to revoke her
supervised release for drinking a grande iced nonfat chai with
a shot of espresso. See United States v. Siegel, 753 F.3d 705,
713 (7th Cir. 2014) (rejecting a similar condition that
prohibited the “purchase, possession, or use of any ‘mood
altering substances’”).
We do not intend to leave the district court with an empty
cupboard. District courts have “wide discretion to fashion
special conditions so long as they are ‘reasonably related’ to
the goals of supervised release and involve ‘no greater
deprivation of liberty than is reasonably necessary.’” United
States v. Kennedy, 643 F.3d 1251, 1259 (9th Cir. 2011)
(citation omitted) (quoting 18 U.S.C. § 3583(d)). Although
it erred by not appropriately tailoring Special Condition No.

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UNITED STATES V. AQUINO 11
9, the district court was well within this broad discretion in
trying to ensure that Aquino avoid the substances and
circumstances that have led to so much trouble and danger for
her and her daughter. See, e.g., Watson, 582 F.3d at 983
(“Separating a convicted felon from negative influences in his
prior life is reasonably related to the permissible goals of
deterrence and rehabilitation and is a common purpose of
supervised release.”); United States v. Ross, 476 F.3d 719,
722 (9th Cir. 2007) (approving of special conditions designed
to “prevent reversion into a former crime-inducing lifestyle”
(quoting United States v. Bolinger, 940 F.2d 478, 480 (9th
Cir. 1991))). There are several nonexclusive options
available to the district court on remand.
First, if the district court is concerned that Aquino may
drive while impaired, her conditions of release already
prohibit such activity. No one on supervised release may
commit a state crime, see 18 U.S.C. § 3583(d), and driving
“[w]hile under the influence of any drug that impairs the
person’s ability to operate the vehicle in a careful and prudent
manner” is a crime in Hawaii, see Haw. Rev. Stat. § 291E-
61(a)(2).
Second, if the district court is concerned about Aquino
consuming substances that impair her faculties generally,
then we note that this same statute prohibits driving “[w]hile
under the influence of alcohol in an amount sufficient to
impair the person’s normal mental faculties.” Id. § 291E-
61(a)(1). In United States v. Kappes, the Seventh Circuit
offered a specific alternative along these lines: “A better
definition for [the substances that are prohibited], although
not the only one, would be ‘psychoactive substances that
impair physical or mental functioning, including street,
synthetic, or designer drugs.’” 782 F.3d 828, 853 (7th Cir.

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UNITED STATES V. AQUINO 12
2015) (quoting Siegel, 753 F.3d at 713). Without endorsing
that particular formulation, we note that a prescription
exception would have to be added, as medicine for both
psychiatric and physical conditions can have the proscribed
effects.
Third, as Aquino proposes in her briefing to this court, the
district court could prohibit her from consuming “controlled
substance analogue[s]” as defined by federal law. See
21 U.S.C. § 802(32).4
There are surely other ways to prevent Aquino from
consuming substances like spice that will impair her
judgment, and we leave the precise wording of a supervised
release condition to the district court. But we reiterate that
any such condition must comply with our precedent regarding
vagueness.
4 At oral argument, counsel for Aquino suggested that no special
condition is needed because Aquino is already prohibited from violating
federal law or unlawfully possessing or using a controlled substance, and
substances like spice qualify as controlled substance analogues. See
21 U.S.C. §§ 813, 844 (criminalizing simple possession of a controlled
substance analogue). Nevertheless, the Supreme Court recently clarified
that the applicable mens rea in this context requires either (a) knowledge
that the substance is treated as a controlled substance analogue or
(b) knowledge that the substance has a “chemical structure” that is
“substantially similar to the chemical structure of a controlled substance
in schedule I or II.” McFadden v. United States, 135 S. Ct. 2298, 2304
(2015) (quoting 21 U.S.C. § 802(32)(A)(i)). Though we decline to
expound on this standard, we note that Aquino’s conduct could
conceivably fall outside of it—as there is no evidence that she had
knowledge of either the concept of a controlled substance analogue or the
“chemical structure” of the spice that she smoked.

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UNITED STATES V. AQUINO 13
IV. CONCLUSION
We appreciate the efforts to keep Aquino and those
around her safe. Yet either because the probation officer
erred in not asking the right question or the prosecutor erred
in not having the probation officer testify (or both), there is
insufficient evidence that Aquino did not “answer truthfully.”
Within the bounds of our precedent, we leave it to the district
court to impose an appropriate sentence on remand, including
a condition designed to prevent her from repeating the
conduct that led to this appeal.
VACATED and REMANDED.

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