Congratulations to Orin, for Having One of His Posts Cited in a Fifth Circuit Opinion

From U.S. v. Ibarra-Luna (5th Cir. Dec. 22), n.14:

The charging document for the 2003 offense nominally alleges that Ibarra “knowingly delivered by actual transfer,” “by constructive transfer,” and “by offering to sell.” Notwithstanding this language, a conviction would require the government to prove only one of these allegations, not all three, and therefore we cannot say whether Ibarra’s guilty plea was an admission to all three allegations or only to the allegation of offering to sell. See Morales-Martinez, 496 F.3d at 358–61; accord United States v. Fuentes, 245 F. App’x 358 (5th Cir. 2007); cf. Orin Kerr, The Strange Practice of Indicting in the Conjunctive, THE VOLOKH CONSPIRACY (Sept. 25, 2009, 1:23 PM),

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