This is a nice way to say it, from the final footnote of today's Ninth Circuit opinion:
"In answer to a judge’s question at oral argument, government
counsel took the position that the mens rea required for attempted crimes
and for conspiracy is identical. Two days later, counsel filed a 28j letter
“to clarify” that the intent required for attempts and conspiracy is not the
same. We acknowledge the good faith of counsel’s original answer and
are thankful for the clarification. Although we look to the parties for
help in determining the controlling law, we are not bound by the parties’
analyses, stipulations, or purported concessions. The law, as the saying
goes, is what it is."
A different panel might have been a lot meaner about that one. Probably helps that the government lawyer was (1) respectful, (2) right on the underlying merits (at least according to the majority), and (3) a former Ninth Circuit clerk.
