To plainly err is human

United States v. Makkar, Nos. 14-5147, 14-5148 (10th Cir. Nov. 23, 2015).

The two defendants here ran a small-town convenience store from which they sold incense. The government, arguing that the incense resembled a synthetic cannabinoid, charged them with violating the Analogue Act, which forbids the knowing possession and distribution of substances that are “analogous” to those listed in the Controlled Substances Act. The Tenth Circuit, speaking through the conversational Judge Gorsuch, concludes that the jury instructions were plain error, and reverses the convictions.

Among other questions, this case asks whether an error can really be “plain” when another court—here, the Seventh Circuit—has “arguably once endorsed” the very error committed here. In common-law countries like ours, precedent often defines what the law is. If precedent has endorsed a position, in what sense can that position be erroneous, let alone plainly erroneous? This line of thought has a certain superficial appeal, but it can’t be right. If it were, it would be incoherent to speak of a wrongly decided precedent. At any rate, the Tenth Circuit rejects the notion that the Seventh Circuit’s decision insulates the district court’s erroneous jury instructions from reversal. “After all, to err is human,” says the Tenth Circuit, “and to plainly err is too.”