Sunday, October 6, 2019

Tenth Circuit Breviaries

Last week at the Tenth Circuit . . .

USSG § 4B1.2(b)

A "counterfeit substance" under this guideline is a noncontrolled substance that is passed off as a controlled substance. It is not a controlled substance that has been fraudulently or without authorization mislabeled or misbranded. So declared the Tenth Circuit, joining the five other circuits to have addressed this issue, in United States v. Thomas.

Plurality opinions

What’s the mandate of a plurality opinion when “two of the three panel judges share some common rationale, yet ultimately reach different outcomes, and a different combination of two judges reach a common outcome by using different rationales”? It's the outcome that matters, says Harte v. Johnson County Board Comm'rs, round two of a Fourth Amendment lawsuit that we've blogged about before.

Jury-selection issues

Read Harte also for a reminder of how hard it is to win jury-selection claims on appeal. When it comes to juror bias, for instance, "the deference due to district courts is at its pinnacle." And Batson claims have always been an uphill battle on appeal, and a losing battle in this case.

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