condition regarding duty using spice or not using spice when you're on supervision you have to comply with the precedent of not being vague here we have the exact same issue that we have in a casino it's the same issue but it's definitely different language it is a little bit different language what is exactly the same is that the district court applied this mimicking effect standard right but it's that language in this special condition is used to define a much more right it is it does limit it to cannabis but again that doesn't solve it because the effects of the kind of this plant are very broad ok let me just make sure i got the language in mind right it is understanding the condition tells your client kind of explanatory definition that's just given to illustrate what we're talking about why does that render that the term they still deals with the mimic kenya fix that this court struck down it uses that same terminology even though you're kind of controlled substance right that that really gave that so we have to think about going to starbucks in order to crazy dream but that can't happen here because the mono substance that's that's the subject of the condition is already pretty effects language was not even in here right all the court said your client was you cannot use and just whatever synthetic kind of been no reason thank you are much better pronouncing that word if it just said that are you saying that that is very i don't think that that would save it because we don't know what synthetic out of benoit's is defined as there's so many different definitions for what could be there is the analog statutes that that define it and use from a common sense point of view not analytical not out of books not out of experts common sense that will keep him on the straight no he can't go this way or that way now it seems to me that this is getting pretty analytical an ordinarily common sense defendant to go into books decide this is what you're saying is if i understand you correctly you can't use any of this we can't protect him from getting going back into jail again what do you say it is rightly concerned about being able to have a discussion with a defendant about what they can and cannot do on this condition doesn't prohibit died or require it i mean whether or not you  argument that was my question what i'm trying to find out what he did wrong or even if there's another way of doing it is court gave clear instructions on how to handle that secure and it's one of the things that is already in effect is that you still comply with off federal state and local laws the hawaii i log statute is a pretty inclusive statute be amended annually and they've amended it every year since two thousand and ten and that alone would would allow the conversation to happen and would be sufficient in order to deal with this condition or the construct court had but i think the government expects explain why that is problematic in and of itself we did offer some other language exactly which doesn't strike me as any better actually than what was given here in terms of this judge wallace was saying in terms of what a commonsense understanding would mean for your client you know your honor i don't even know if a defendant would understand the language as it's written here given that there is so many terms that are being used that number one we can't even pronounce number two we don't even really know what they mean so i don't know if this can you don't really i mean your client you don't think he knows what the this record is talking about but we're not looking at we have to look at the the language of this of the condition as it's written and what an overzealous probation officer could interpret i don't think that's the standard isn't it is the standard that is that was applied in you know that we don't just assume the worst about our probation officers right i mean and ultimately that this record is the one that's going to be called upon to enforce them so i don't think that's the standard i don't think we look at a definition and say if some wild eyed probation officer got a hold of this what would you know crazy damage could they do i don't think that's the test that is worded you know it does no i think it's the vagueness test that the constitution establishes it's not pegged to an overzealous probation officer expect to a reasonable person in your client shoes and what when a regular person understanding could they understand what this is getting out it seems to me that your client could if you if you wanted to i mean i guess if you want to pretend that he was c language that you would ever agree with me so keep him in jail until this actually serves the senate i think that you shall not violate any federal state or local laws that would capture a violation should a defendant ingest synthetic cannabinoid as defined under those analogs i think that would be a sufficient condition do you think then the defendant would say the language i know that you don't go through every law how can you you know you don't even know which laws but you don't need a condition like they are let you go ahead with your argument you don't need a condition like this your honor to have that discussion and that was the whole as i understand your argument you're saying to us he was too specific well when you use the mimic you know facts standard which is exactly what was used in it you know even though he tried to narrow it khanabad it doesn't solve the problem of inclusive but what we're trying to do is get something that's logical and i see it reaches only synthetic kind of those saw it and mimics the effects of marijuana and then refers to often referred to  that limit the thinking of the defend to this specific thing we're trying to if we just say have be all the laws then there's a good chance you're going to try and smoke marijuana again so we provided some process that lets him know specifically what we expect of him and if if we continue to send them out without more definition we're going to get him back in jail which is not the process we're trying to keep him out of jail so i have some chocolate coffee tea the same problem exists here with that same type of language i think you still capture those same issues when he turns it into often referred to as synthetic marijuana k two spice hasn't he defined it hasn't he brought it down to something the defendant should understand i don't know what the word spice needs that that term kate by synthetic marijuana is used interchangeably it's anonymous with each other that doesn't help to define it any better well ok truth that it has a word synthetic marijuana that has words that he can understand but we don't know what that that those words mean i mean lower good morning my name is chris elliott cuomo thomas assisting your story for united states judge offer you pointed out the main distinction in this case in a keno which the government agrees with the special condition in that case was overbroad that's condition stated defendant could not knowingly use or possess any substance controlled or not controlled that you believe is intended to mimic the effects of any controlled substance have this condition in this case which is very under inclusive very qualified and and defined the government wants to point out that the standard that then the whole special condition is thrown out it doesn't hold up it also does not hold that the standard is what overzealous probation officer how they would define a special condition that's not the standard either standard is what a person of common intelligence would interpret that special condition and his judge was as you pointed out the judge went to great lengths to ensure that the defendant understood and his intention was not for prosecution not to ensure that the defendant could be revoked on supervised release that was not his intention at all condition that he was setting this person this defendant in this case obviously had a problem marijuana that's what he was arrested for he was high on memorandum when he was arrested and he was also selling marijuana so that he could take more marijuana so within the purported goals of supervised release the government the district court went to great lengths to define it in terms that this defendant could understand that the question was raised by counsel which i don't have the response to is that within this restriction if he ate candy or drank coffee he may get the same understand i'll stay away from and that will be the discussion that this special condition will evoke when that probation officer and that defended sits down and talks about what the cab what they cannot  cation of supervisor lease the judge who fashioned the special condition that petition goes before that same judge that judge will determine whether the probation officer the very minimal small percentage of cases where that might happen and to further as your question when you when the judge gave examples of a synthetic marijuana related to kind of this like a two and spice that prevents the interpretation of the defendant not being able to use as a result especially condition red bull nonfat tr to lock the coffee chocolate i mean that that dispenses with that argument because it doesn't make sense because this is very specific it's very far away and according to the law in a keno it's reef reaffirm that it's it has to review a condition as it's written you don't look at what the district court intended to do and it doesn't matter what the district court intended we look at to how that condition could be applied so when the government focuses on all this is what the district court intended to do and this is how this district court would apply it you don't know whether the defendant is going to be in front of this district district judge for revocation if you were to change jurisdictions so that argument doesn't have any merit this court reaffirmed in kentucky q no that it's it's too big if it allows people of common intelligence to differ as to its application leaving them guessing this court accepted the analysis that we made that when you do a mimicking