the so called gang conditions that have been imposed on mr castro in fact as i look around the court today nearly every lawyer who has argued today's wearing gray or black which are the purported gang colors that mr castro is prohibited from wearing and in fact condition nine actually prohibits mr castro from where he or even possessing any of that  clothing now the government has characterized this argument actually as frivolous where does it say in condition nine that he may not wear great or black it does not use the words where black right uses around it is  sentencing position paper and at the sentencing hearing indicated that black and gray is in fact the colors for the metal side yet in fact part of the argument for  mr castro should be subject to these conditions is that when he was arrested he was wearing black and gray so are you really tell me and say it was black and a great black and gray correct and i want to be a combination i have no idea your honor that's not clear we don't have a booking photo i don't know if he was wearing a gray sweatshirt and black jeans or what not really saying that if he if the defendant were to wear the distinguished suit that you appear to be wearing right now that that would cause him to be  subjected for violating condition nine by wearing clothing that he knows evidences affiliation with a middle sex again i am saying that you know because again if the colors are black and gray and the government is not disputed in its brief it says yes well the fact that black and gray may be more popular colors than other gangs made a point so what should the district judge have said if the judge wanted to achieve the objective of having as a condition of supervise that the defendant not only not associate with anyone he knows to be a gang member but doesn't do anything to communicate that he's part of the gang what should the judge have said well your honor this is where it gets difficult because one size does not fit all when it comes to provides ra conditions right so if in fact you know that the particular gang that by the way mr castro says he's not worried i get that but he's associated with him he knows people who are certain knowledge on shore wants to keep him away from that what should the judge  again this is where i don't think that restricting one's clothing when the colors are so common as black and gray that the condition is appropriate i don't think it meets the standard for a special condition that it's not involve together and that may be the case around here and this is perhaps why and we argue that the reasonable interpretation while not sure your honor those are the colors and he may have been wearing black and gray together now it's not clear is it black and gray stripe that a piece of clothing has to be black and a piece of clothing has to be grey that still is very limiting in what an individual or group similar can conditions in the past were taken to its logical conclusion this your argument means  that in all cases the guideline not the guideline condition the gang condition has to be revised so that clothing is taken out when a lot of gangs affiliate themselves through the colors that they choose to wear out of there is no standard gang condition ok gang conditions are not standard conditions of supervised release these are special conditions that are crafted in individual cases now it is certainly true that the language that was used here is language that  often used when imposing and conditions but that the that goes from district a district and also with the probation office to recommend these conditions these are conditions that the government ask the court to impose the probation office position that but this your argument call into question the other cases in which the court imposed a similar gang condition known around because the gang conditions that issue in the other cases  evidence and affiliation with a particular gang so that's correct because i think that language has been approved by the circuit in other cases that's that's true your honor that's certainly true but we happen to know in this case what those colors common colors like red grape black white yes no i didn't see any lawyers in court wearing red today perhaps there was a tie that i missed but but the fact is there was a lot of gray and black in combination and it's not unusual for professionals to wear that and to prohibit someone who again may not actually be a member of the gang and the government says yes the court can impose this condition because he's an actual gang member imposes condition because he knows people who are part of this gang well his history as well i mean the district quick knowledge that even if he's not a gang member this restriction his association with gang membership is justified  paraphrasing given his history of his association that's correct your honor and this is based primarily on he has an arrest for vandalism arrest when he was a juvenile more than a decade ago which which the record apparently indicates that it involved a criminal street gang though we don't know for sure what the facts are because the record of that arrest was not made available but it's perfectly appropriate under if if the court wanted to restrict associations and that seemed to be what the court was talking about that was the court's concern that he associate with members of the gang in court in fact when the court gave its explanation that was the only thing the court talked about the court didn't talk about the clothing or the or anything like that the court talked about the associations well we're not suggesting that he can't be restricted from associating with certain numbers of gangs we we suggested below and here there's a standard condition that he not associate with known felons and that's probably enough but the fact is this condition goes beyond that it says that it's not just he can't associate with members of this particular  that he can't wear or even possess any of this clothing so that's our problem with this condition condition ten indicates that he he can't be present in any area in which members of the middle side can assemble or meet now one of argument is this means he can't reside there the government says well that's not true we said we wanted that in the condition and the court can include that in the condition but the govern explained how one can at the same time reside at a location that they're not permitted to be present because that's the condition that it can't be present in and then it goes on to say that's a good portion of santa and this is also where his family is located so essentially he's restricted from having access to the people he needs to assist in his rehabilitation i thought just that he can't be present reno's gang members meet or assemble that's correct which say that doesn't that doesn't six the condition because in the sales case as a yes which involved computer conditions this court said the mere fact that you give the probation officer the right to give permission doesn't mean the pro principle is that there is a very factual the rush hold that it district court needs to rely on in order to impose gang conditions and the second principle is that once that low factual threshold is in that broad gang conditions are in fact permissible i'd like to start with that second principle because that seems to be with the defendant has focused on today in terms of what is the equally permissible now as judge when pointed out this court's precedents have affirmed nearly identical conditions to the one in which to the ones that issue in this case sotero which the government sites in our brief in fact affirmed a condition that said the defendant shall not wear display use or possess any insigni condition the clothing restriction in this case is virtually identical and i think the really important limitation is the one that judge simon is having on here which is that this is a condition that requires that the defendant know his clothing evidence gang affiliation so just wearing a black business suit a great pair of sweatpants and black and gray that is not going to violate this condition indeed this court has repeatedly howled that inadvertent violations of supervised release conditions don't actually constitute violations at all let me ask you this i'm a little put off by the possess i don't know very many people don't have black pants in their or in their closet and don't have and a lot of people have grey shirts and it does that really mean the probation officer can go through this condition obviously is to prevent defendants from demonstrating gang pride in the means of their dress so the reason that the knowledge mens rea is so critical and in fact is something  conditions don't actually include that language is because what the district court is trying to restrict here is a defendant from possessing or wearing clothes that the defendant knows are there or are worn for the purpose condition and maybe strike the words used or possess because what if he's in his backyard and he's wearing a sweatshirt and pants that are great and black in combination that would fit under the terms of the gang condition but i don't think that would go to what the condition was meant to address i agree that wouldn't go to what the condition was meant to address and i don't think that it's necessary to strike or modify the terms because what this court has done in the past when confronted with similarly broad language is an interpret is interpreted those terms according to common sense and what a reasonable person in the defendant's position would now well so it sounds like what you're saying if i'm hearing this right might be an appropriate addition to this type of language and that is when all that stuff is worn or possessed or whatever else quote with the intent to communicate support or affiliation for a gang is not what should be added to this i don't think that language is necessary sotero which is not bad over the old of a case  affirmed language that was actually broader which said may connote affiliation with the gang not even knows so i don't think the intent mens rea is necessary i think what is necessary though is sort of what this court has done in cases like ross which was a case where the defendant had been a member of a white supremacist group and said can i not possess any text that refers to nazis because his condition prevented nazi materials or paraphernalia and this court said we have to look at these conditions from the perspective of this defendant he knows the kinds of things that are intended to add that ends it gang affiliation so that kind of language is not required because the way the court construe as these conditions has to be in a way that renders them constitutional the other thing that i think is important here is that the language of these conditions while the government indeed the defendants correct proposed that these conditions be added the actual precise language was the language that the probation officer put forth as proposed language even though the probation office did not actually suggest these conditions be added the language that the district court actually used was in docket number thirty one and that was the probation officers recommendation to the court about potential language that could be incorporated if the court wanted to impose these conditions the court obviously confronted with the fact that this defendant has a history of gang affiliation if not membership and crimes that at that end some relationship with a gang the court decided in the exercise of its broad discretion that this would benefit the defendant in preventing him from continued recidivism and visiting old haunts or being associated with old friends who otherwise would cause him to engage in a life of crime that's precisely what this court has said is permissible the court said that in poland where the court said that in malone the court said that this year in athens and for the recidivism conditions like these are appropriate because the defendant as the affiliate or someone who has relationships or friendships with people in these gangs knows what is actually prohibited and if he has any confusion he can always ask his probation officer or go back to the court and seek a modification if he believes judge simon that there is a modification necessary he can go back to the district court and propose thought at that point the court can whether that would be appropriate i do have arguments i can make about why the factual record supports the game conditions here but if the court doesn't have questions about that i would just say that no question thank you government's argument is that it's it's all fine and good to say well this court can interpret the conditions to only mean this that the other the problem is that the the defendant could be arrested by his probation officer because the probation officer believes that his clothing is covered it could be that he merely has possession of certain clothing in his home and could arrest him he could be violated he's sentenced he's in prison and yes you can difficulty of course then is forcing the defendant to have to go to court in advance is this does he have to wait to see that what the probation officers particular interpretation is before he does that so he's put in a very difficult position and if he happens to be an oakland raiders fan and where is oakland resident you know if the government brings him up a probation brings up on a supervisor a lease violation there's still like a commonsense aspect to how you look at these type of conditions absolutely but he may be forced to be in prison in jail awaiting that the termination or the court could go the wrong way in this court may ultimately say no no no we didn't mean that when we upheld this condition with the problem be solved if the condition had added to it with the intent to communicate support for or affiliation with a gang one in the heat of the elite he could potentially make it better but we're we're still left with well what does that ultimately mean and does that mean he can't wear grand lac and if he can't wear graham black and can't possess that clothing even in the privacy of his home then i think that's what it means he can't grade black because he knows evidence has an affiliation with the middle so i can't think that's what the condition means which of course makes because that is so broad because it includes colors of a lot of clothing it causes much more difficult a supervised release is to some extent in lieu of being put in prison longer to assist and so my goodness respect when i disagree with that supervised release is this is not in some state courts where that might actually be the case this is a probation where that would be without a prison term but then then you're talking probation correct but this could be to help both protect the community and to ease rehabilitation for a defendant and it's really limited period of time in most circumstances as we're talking out here and for a limited period of time to get you into a position mr defendant so that you're not affiliated with gangs you can't wear these kind of clothes absolutely but you also don't want to create a situation where you're setting the thing up to fail and forcing the sen to get rid of you know perhaps his entire wardrobe would have to purchase a brand new all new clothing and you know that's where it becomes very difficult when you're dealing with these common that's really a combination both of some informed discretion by district judge and dealing with  supervised release violation contention and some good sense by probation officer yes which which we all hope occurs we just don't know that it necessarily will i think the court thank you very much