and when i read it i also read the defense counsel at the time to be taking a lot of care with respect to what battles he's going to pick on supervised release because he doesn't have a very good hand  are on appeal looking at conditions and trying to figure trying to almost hypothesize are they clear enough are they thank him we come up with an example of somebody consuming alcohol the religious service or eating it this way and it's a common practice for district courts walk in the course of thirty years doing it this way that probably got out of the gate wrong so breaking that habit started way back every day for three years prior to the in the year that his sister had said they had a history of alcohol problems and that his own psycho therapist said he shouldn't be drinking alcohol  just want to respond to so that's one my client does not have an alcohol problem there's not been a diagnosis he's not an alcoholic he has a history of abuse but in the government's own group and in the transcripts that abuse and so there's not ongoing alcohol problem was pretty apparent that it is i want to i want to try to cut down prison time as much as i can and i'm willing to accept it's very strange in terms of supervised release in return political he would gladly accept without that qualification and maybe he'd even be willing to accept some unconstitutional conditions in return for getting out of prison i'm not to push the boundaries of what you might be permitted to do on supervised release you want to state and you want to tell the judge i'm going to be as far away from those boundaries as i can straighten arrow forevermore judge we've got a fundamental problem here that when you show up in they have a laundry list of conditions that many of them and then repeatedly said by this court don't do this right inform people of the risks they remain in the jurisdiction they are all here what do you do when you entitling a defendant to raise any due process argument even if it has been waived or do you read it assuming that the circuit court may excuse waiver insufficiently compelling case judge given the nature of the due process this dialogue right now is in part what i just was really surprised to see that mr martin wants to challenge on vagueness grounds the covert photography condition on this fact pattern i don't know what was killing me the judge somebody never took an image of somebody to possess distribute but he's not produce child pornography for i don't quite understand the loathsome nature child pornography but the idea that everybody is going to be a producer from the record of strategic rationale in order to enter syria no objections if it's intentional and that is dictated by the circumstances whatever it is that the issue here you can read in the next paycheck rationale frowned what's going on in this context that the conditions of supervised release are being agreed to he's seeking any way below guidelines seconds he's making clear to the district court that he does not have objections to you know these types of restrictions while he's on relief in an effort to say he there should be a concern raised about and nobody can think for the life why in the world he would have raised this well i want to just be clear about the strategy component to this because i believe what the case  versus forfeited where it's just not raised but it is one component of this determination and does it have to be do we have to make a strategy terminations i understood you earlier saying you have to have all these other things and the court has to be able to determine that there was a strategic reason for this it would just be sufficient to make a knowing waiver it's clear that the defendant review made knowingly and intentionally there may not be an obvious strategy behind that other than for example not raising for arguments not raising arguments that aren't grounded in the record for example  that comes up in the context of jury instructions and outside of the supervised release context as well i mean i think you see that a little bit in smith and these other more recent supervised release cases to where it doesn't focus so would revoke the defendant on the basis of taking communion and i think that that allegation is is not grounded in reality it was kostelnik to me ask you your thoughts on the appreciate their time so i'll begin with the strategy and why that's going to be a problem we can always swallow up every objection everything that may come later by pointing to the site below so it must be strategic and therefore didn't donation between those cases and cases like this and if we're going to say about a notice an opportunity jack i guess those cases have to be decided wrong or there is just a difference between the jurisprudence there and the case is the government wants to write about notice and opportunity object if there is judge scott or problem about alcohol consumption nobody's ever been revoked on it as of yet kind of like i don't know if they have but it's very easy to just make a carve out in the condition to say no alcohol can file a modification to the terms of supervised release sure i would hope so but we also know from the court's case on this that it's a hassle it's been described as hassles to quote you don't have a lawyer you should do this on the appeal just as much as you could do it and i'm here to represent my client