and that's the problem here they are all binding they're all clickable mr sanders must follow them all and he is left to guess what is the meaning of excessive ultimately based on how the condition is written and how it was impose against the conditions instead of adversely affects had said materially affects same problem you know that's that's what worries me about your argument because lawyers have been saying that the word materially is too vague for hundreds of years in the judiciary always rejects that argument there is some irreducible vagueness in language that more words won't solve i just and materially is given as an example that adversely seems to me about the same category more throwing more words at it won't make it more precise but there is a way to make it more precise it's easily done just a the blood alcohol content problem solved yeah you can delete it and similarly from all the criminal statutes that use the word material or you could delete it but sure proposals to do that are proposals that the statute is too vague with the word  have always failed so why would this be if you agree that this is just the same as materially why would it be worse than material i don't think this court's accepted definition in these context to say that materially is acceptable so there'd be tension in the case law that would result from your honour's proposed solution it's not as if those statutes because they are written in a way that could be written better in this context are therefore appropriate we're looking at the specifics of this case in eighteen u s c thirty five eighty three d if the governing standard and it talks about the imposition of conditions that do not impact somebodies rights more than necessary so irrespective of what those statutes say and what terminology they use spongy as it is to really and so forth under thirty five eighty three d the condition in this case could be more appropriately drafted more precisely drafted and i've given an example of how it shouldn't be that the district court rejects it because materially in some other context has been found to be acceptable and not to mention as i mentioned the tension in other cases in this area where amorphous terms like this spongy terms like this are rejected we can look thirty five  three d we can look at how precisely this term could be imposed and we find a better solution simply by including blood alcohol content as stated in the condition it's by delving into the additional matters that we have a problem is this court's flag about any and as i began to say banning excessive use of alcohol that firstly a tax a defendant's employment or relations energex another variable here every defendant doesn't have a relationship with the same employer or the same persons for purposes of the relationships requirement so the person the permissible amount of used pens then and mr standard works for him who is relationship is with him that is going to differ for each person each to spend under any conditions supervise release we should have began a boycott by just having a clear condition of supervised release what we have now is a shifting in a noble standard due to the lack of clear notice in objective terms this court should vacate the condition in remain and so that in appropriate conditions that is specific and gives notice can be imposed and again that's easily achievable here by simply saying blood alcohol content as opposed to excessive use or anything just  only can be specific enough it has blood alcohol content there is or no other language that you would suggest could could satisfy you i'm not saying that that is to the exclusion of any other possibility i'm simply saying that that is definite it is knowable it is something that i think satisfies if there is something else that might satisfy it i couldn't tell your honor what it is off the top of my head but i do know that by having something that is  that is through blood alcohol contents definable unknowable we avoid things like materially like excess in the things that have been found to be problematic in again if under thirty five eighty three d the purpose is to not restrict more than necessar not using terms like materially and excessive is consistent with the statute and so that's what we should go for here so so it's your position that the individual if it possess direction did not have over a point no way that would be sufficient i think so your honor for purposes of our challenge here today above wouldn't be enough in this case and let me explain why when mr sandridge was arrested in this case officers found a woman running down to gary indiana st if three thirty in the morning after he had just sexually assaulted her according to their testimony they got a few drinks now mr standage is about one hundred ninety five pounds and so let's say a few drinks two drinks or three drinks it's can tie really conceivable that his blood alcohol level would be below zero point zero eight at that point so what mr sandridge is proposing in this case is a condition basically they want to let probation step in in that particular instance on blood alcohol level probation would have been able to step in and other if you stay right where it's if he's dangerous when drinking why not just a complete ban yes that's a good question your honor and we did consider that when this case was really under free sentencing what was going on as this court knows there was the thomas and capice siegel line of conditions of supervised release cases and i think with the probation well let me first say that the evidence isn't in the record it's that instance but the answer that can give you is that what probation was trying to do is they were we're trying to work with mr standage to give him well that may be but we're not officer thinks it means any adverse any use of alcohol that adversely affects his employment his relationships or his ability to comply well your honor that's about as loose as it can be and your honor it's about a long the same lines as conditions like knowingly associate or dangerous weapon which the courts affirmed it's both narrow in that spirit and that's a very poor analogy well your honor i respectfully disagree i think what it does is it provides the defendant some general notice of what conduct is  ed which is what this court case law requires while at the same time giving probation the flexible tool to step in when mr standage is the reaching the point where he might be self destructive or destructive to others it is subject to interpretation i agree with that but a lot of conditions a supervised release are and that isn't the standard when mr sanders is asserting as he's asserting this condition still vegas to violate the constitution he's saying this is a due process violation yet because of arbitrary enforcement your honor it's it is susceptible to enforcement by the probation officer that could be questioned when beach to the district court level i agree with that but as this court's recent cases of talked about a mere hypothetical concern doesn't rise to the level of the tape that's not how to process challenges are evaluated your honor discordant douglas did talk about how if you're talking about a hypothetical situation you're posing situations that may be we have to look at this language and see if it leads to much known for our pressuring enforcement and doesn't give him enough notice about what's prohibited i agree with that as your other clause about any use of alcohol whatsoever that adversely effect so you know if his drinking one night makes him two minutes late for work the next day is that enough of an adverse impact i don't think a reasonable person would believe that that is enough of an advocate but in the meantime the probation agent can say yes it does throw him in prison or throw him in detention and you know conven hearing and the judge can say no that's not enough but in the meantime he's detained church and there is the theoretical possibility of that your honor i will concede that point but that doesn't necessarily mean that's unconstitutionally vague and it doesn't mean that it's type of condition that this court should reverse on why not your honor this court in its recent cases miller and douglas has talked about just some hypothetical possibility of the dicta probation officer violating for violating condition isn't enough to merit reversal there's going to come a time where mr sanders is released mr sanders can move to change the condition at that point if he thinks that it's appropriate if the district court in reviewing the assuming it complies with all the statutory requirements in the parlance of the rules but at this point in time i don't think this condition does rise the type of due process violation that this where it's case law has talked about recently  the fact that he might also violate i just kind of an ancillary point the fact that he might also violate the condition doesn't mean he's going to be thrown in jail that's just there are steps in between there and what could happen is the probation officer  and say mr standage i do think you're i again that that's not how due process claims are evaluated well now we're honest this is a legal question about whether this terminology as a definition for excessive drinking is unconstitutionally vague because it doesn't give him notice about what he's prohibited from doing and leaves too much room for arbitrariness i understand your honour's points what i'm saying is in terms of the cases like douglas that an play into a due process challenge of a condition supervised release the court has looked at the possibility of you know a hypothetical concern that if you go out and you have a drink with your girlfriend and she breaks up with you a probation officer could theoretically violate you for that this court looked at that type of analysis and that's and it said it could theoretically be a concern we could have that the indictive probation officer who does that but that doesn't make it a reversible condition at this point in time in particular what mr sanders is actually asking for here is he wants a condition that prohibits him they give him unfettered rights to drink up until point  know what i'm driving at yes i do i understand that and you're no alcohol i understand your honour's are de minimus point to well what the district court and we could have asked for that but what the district court was trying to do is it was trying to give mr sandridge some leeway and so it looked at th it the court did set it as a possibility they could be imposed admittedly without if the ruling on the constitutionality of explicitly not ruling on the vagueness of it but the question is whether the district court abused its discretion in whether like to begin a possibility of a complete ban on alcohol use and point out the court that is obviously going to pose first many concerns into the reactions clause because individuals part of the religious liberties have the right to use alcohol as part of religious celebrations such as in  come the time when mr sanders just released we should not have to wait to challenge that this court's authority under united states versus manrico johnson says the condition is in effect now it's supervised release has been imposed you have counsel this is the time to raise the challenge we are raising a challenge now which be adjudicated now and furthermore percy gold why impose these conditions now when this guy's going to be in jail for ten years not knowing what his needs and requirements are makes little sense to me i'd believe i'm a broken record on this but i'm going to play it anyway impose the condition later when under the best practices of siegel it says wait and see what  history is then what his needs and requirements are then tweak the conditions then or rather impose now as opposed to doing the things in the fashion that were doing it and yet the efforts in that regard seem to fall flat probably changes in releases i think that is still a major problem and i'd suggest that it be done differently well we have to deal with cases where cars ration short and it would be appropriate to have a condition of supervision in place before school and i'm sure you would agree i mean i understand the facts of this case right in those cases that be fun different facts different circumstances different process but then we'd still come up and challenge the condition then that would be in place sooner but here when there's a longer sentence the practice in the process maybe should be different well in the sense that we sometimes speak to other cases of the facts of particular case i would ask you this which reveals what would if we and i think there's some redundancy in this drafting unit in any event and i'm have some moneys with relationships individual that in any employment setting you up to reflect upon any drinking would that would then be a pretty strong signal if you said that i'd be concerned again about employment status and what that means vagueness about your status that that's just not apparent to me what that would mean if you're in a post i put that a call i'm concerned about things like judge psych said about the if you use alcohol and you're two minutes late to work or you work at a place where they don't want you to drink and yet you have a right to drink and so in your off hours you drink that that adversely affect your employment status those are the sort of things where work you know more amorphous your relationships with other people who are not your employers people might not want to drink  don't think it's in your best interest for your health your doctor for instance a family member these are all things that are thrown into the mix through this drafting if we want to have definite we want to have sufficient notice doing things to eliminate that sort of language judge flom i think is the best practice pick a standard that is tied to something that's knowable like blood alcohol content and if it becomes problematic and something additional needs to be done revisit the condition then you can bring an individual in then to look at what must be done as part of the supervision these efforts here are to broaden to annoy the jewett you would you allow them and in your in your view a blood alcohol content below that which is describe for drunk driving just where as why discretion thirty five eighty three d but of course there's a countervailing consideration about the individual's right so if we're going to dial this back and try to say no alcohol going to have a problem the amount too low and just for this court's consideration i think the word use alcohol is a poor choice say consumption of alcohol alcohol is not always out all that needs to be consumed alcohol can be used for other things you have a job you serve drinks and so forth