Amicus Curiae Brief — Peter M. Hoffman, et al., Petitioners v. United States

No. 18-1049

In the Supreme Court of the United States

PETER M. HOFFMAN, MICHAEL P. ARATA,

AND SUSAN HOFFMAN, PETITIONERS,

v.

UNITED STATES OF AMERICA, RESPONDENT.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF OF NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS

AS AMICUS CURIAE

JEFFREY T. GREEN

CO-CHAIR, NATIONAL ASSOCIATION OF CRIMINAL

DEFENSE LAWYERS AMICUS

COMMITTEE

1660 L Street, N.W.

Washington, DC 20036

(202) 872-8600

AMY MASON SAHARIA

Counsel of Record

WENDY ZORANA ZUPAC

WHITNEY G. WOODWARD*

WILLIAMS & CONNOLLY LLP

725 Twelfth Street, N.W.

Washington, DC 20005

(202) 434-5000

asaharia@wc.com

Admitted only in Illinois. Practice supervised by D.C. Bar members pursuant to D.C. Court of Appeals Rule 49(c)(8).

*

TABLE OF CONTENTS

Page

Interest of Amicus Curiae ............................................................. 1

Summary of Argument .................................................................. 2

Argument ......................................................................................... 4

I. The Jury System Is an Imperfect Protection

Against Wrongful Convictions......................................... 4

II. The “Equipoise Rule” Helps Courts To Fulfill

Their Duty To Protect Defendants’ Right To Be

Convicted by Proof Beyond a Reasonable Doubt ....... 13

A. A Court Must Enter a Judgment of Acquittal

If No Rational Factfinder Could Find Guilt

Beyond a Reasonable Doubt ................................... 13

B. In Cases Where the Evidence Is in Equipoise, No

Rational Factfinder Could Find Guilt Beyond a

Reasonable Doubt ..................................................... 15

C. The Equipoise Rule Meaningfully Protects

Defendants’ Constitutional Rights ......................... 18

Conclusion ...................................................................................... 19

(I)

II

TABLE OF AUTHORITIES

Page

Cases:

Addington v. Texas, 441 U.S. 418 (1979) .................. 4, 16, 17

Coffin v. United States, 156 U.S. 432 (1895)......................... 4

Concrete Pipe & Prods. of Cal., Inc. v.

Constr. Laborers Pension Tr. for S.

Cal., 508 U.S. 602 (1993) ................................................... 16

Duncan v. Louisiana, 391 U.S. 145 (1968) ........................... 4

Freeman v. Zahradnick,

429 U.S. 1111 (1977) (Stewart, J.,

dissenting from denial of certiorari) ............................... 15

Harris v. United States,

125 A.3d 704 (D.C. 2015) .................................................. 17

Jackson v. Virginia, 443 U.S. 307 (1979) ................... passim

Lego v. Twomey, 404 U.S. 477 (1972) .................................... 4

Taylor v. State, 697 A.2d 462 (Md. 1997) ............................ 17

Tellabs, Inc. v. Makor Issues & Rights,

Ltd., 551 U.S. 308 (2007)................................................... 16

United States v. Andujar,

49 F.3d 16 (1st Cir. 1995) ........................................... 11, 12

United State v. Caseer,

399 F.3d 828 (6th Cir. 2005) ............................................. 10

United States v. Flores-Rivera,

56 F.3d 319 (1st Cir. 1995) ............................................... 17

United States v. Jaramillo,

42 F.3d 920 (5th Cir. 1995) ................................................. 7

United States v. Johnson,

592 F.3d 749 (7th Cir. 2010) ................................. 10, 11, 17

United States v. Lovern,

590 F.3d 1095 (10th Cir. 2009) ........................... 8, 9, 10, 17

United States v. Vargas-Ocampo,

747 F.3d 299 (5th Cir. 2014) (en banc) .............................. 7

In re Winship, 397 U.S. 358 (1970) ............................. passim

Woodby v. INS, 385 U.S. 276 (1966) .................................... 15

III

Page

Rule:

Fed. R. Crim. P. 29 ............................................................ 2, 15

Miscellaneous:

Barbara E. Bergman, Criminal Jury

Instructions for the District of

Columbia (5th ed. 2018) ................................................... 16

Keith A. Findley, Innocence Protection in

the Appellate Process,

93 Marq. L. Rev. 591 (2009) ............................................... 5

Diane Kutzko, The Jackson v. Virginia

Standard for Sufficiency of the

Evidence, 65 Iowa L. Rev. 799 (1980) ............................... 5

London School of Economics Jury Project,

Juries and the Rules of Evidence,

1973 Crim. L. Rev. 208 ....................................................... 6

Jon O. Newman, Beyond Reasonable

Doubt, 68 N.Y.U. L. Rev. 979 (1993) ........................ 5, 6, 7

N.J. Model Jury Charge, Reasonable

Doubt (rev. Feb. 24, 1997) ................................................ 16

1A Kevin F. O’Malley, et al., Federal Jury

Practice & Instructions (6th ed. 2008)........................... 16

Rita James Simon & Linda Mahan,

Quantifying Burdens of Proof, 5 Law &

Soc’y Rev. 319 (1971) .......................................................... 6

Barbara D. Underwood, The Thumb on the

Scales of Justice: Burdens of

Persuasion in Criminal Cases,

86 Yale L. J. 1299 (1977) ................................................... 16

In the Supreme Court of the United States

No. 18-1049

PETER M. HOFFMAN, MICHAEL P. ARATA,

AND SUSAN HOFFMAN, PETITIONERS,

v.

UNITED STATES OF AMERICA, RESPONDENT.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF OF NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

INTEREST OF AMICUS CURIAE1

Amicus curiae is the National Association of Criminal

Defense Lawyers (NACDL). NACDL is a nonprofit voluntary professional bar association that works on behalf

of criminal defense attorneys to ensure justice and due

process for those accused of crime or misconduct.

Pursuant to Rule 37.6, amicus affirms that no counsel for a party

authored this brief in whole or in part and that no person other than

amicus or its counsel has made any monetary contributions intended

to fund the preparation or submission of this brief. Petitioner and

respondent have consented to the filing of this brief.

1

(1)

2

NACDL was founded in 1958. It has a membership of

many thousands of direct members and up to 40,000 affiliated members.

NACDL is the only nationwide

professional bar association for public defenders and private criminal defense lawyers. NACDL is dedicated to

advancing the proper, efficient, and just administration

of justice. NACDL files numerous amicus briefs each

year in this Court and other federal and state courts,

seeking to provide assistance in cases that present issues

of broad importance to criminal defendants, criminal defense lawyers, and the criminal justice system as a

whole.

NACDL appears in support of the petition for certiorari to emphasize the importance of the question

presented to criminal defendants and their lawyers. Although trial by jury is a centerpiece of our criminal

justice system, juries sometimes convict defendants

based on evidence that does not establish guilt beyond a

reasonable doubt. In those instances, Rule 29 of the

Federal Rules of Criminal Procedure empowers—and,

indeed, obligates—courts to enter judgment of acquittal

to protect a defendant’s constitutional due process right

to be convicted only upon proof beyond a reasonable

doubt. The equipoise rule is a tool that meaningfully facilitates courts’ exercise of this constitutional obligation.

The Third and Fifth Circuits’ rejection of the equipoise

rule undermines criminal defendants’ constitutional right

to be convicted only upon proof that establishes guilt beyond a reasonable doubt.

SUMMARY OF ARGUMENT

The petition presents a question central to the fair

administration of criminal justice: when the evidence in

a criminal case is evenly balanced between guilt and in-

3

nocence, has the government satisfied its constitutional

obligation to prove guilt beyond a reasonable doubt?

The answer to that question must be no. The Court

should therefore grant the petition.

I. A criminal conviction requires proof of guilt beyond a reasonable doubt. Rooted in the Due Process

Clause of the Constitution, this standard protects

against wrongful convictions and gives effect to the presumption of innocence. Even when properly instructed,

juries sometimes convict defendants in cases where the

evidence does not satisfy this standard—whether because jurors’ emotions or biases cloud their capacity to

reason, because they misapprehend the reasonabledoubt standard, or for some other reason.

Petitioners’ case is one such example; the jury convicted petitioners notwithstanding that, as the district

court found, the government’s evidence of intent was

evenly or nearly evenly balanced between guilt and innocence. The courts of appeals have applied the equipoise

rule in other, analogous cases where the government’s

circumstantial evidence gives rise to equally compelling

inferences of guilt or innocence. In that circumstance,

courts have appropriately held that a reasonable jury

would necessarily have a reasonable doubt about the defendant’s guilt and the conviction therefore cannot stand.

II. When a jury convicts a defendant in the absence

of proof establishing guilt beyond a reasonable doubt,

the Due Process Clause requires the reviewing court to

enter judgment of acquittal. The equipoise rule is a

common-sense rule that facilitates courts’ exercise of this

constitutional duty. It helpfully locates the sufficiencyof-the-evidence analysis on the spectrum of burdens of

proof with which courts are familiar. And it protects

criminal defendants’ right to be convicted only upon

4

proof that establishes guilt beyond a reasonable doubt.

The Third and Fifth Circuits’ rejection of this rule undermines this constitutional right and threatens to

produce convictions that lack evidentiary support proving guilt beyond a reasonable doubt. As this case

illustrates, the availability of the equipoise rule may well

be the difference between conviction and acquittal.

ARGUMENT

I.

The Jury System Is an Imperfect Protection Against

Wrongful Convictions

A. The requirement to prove “beyond a reasonable

doubt . . . every fact necessary to constitute the crime” is

foundational to our criminal justice system. In re Winship, 397 U.S. 358, 364 (1970). This requirement

“‘reflect[s] a profound judgment about the way in which

law should be enforced and justice administered.’” Id. at

361-62 (quoting Duncan v. Louisiana, 391 U.S. 145, 155

(1968)). It is “designed to exclude as nearly as possible

the likelihood of an erroneous judgment” in light of the

“magnitude” of the defendant’s interests in a criminal

case. Addington v. Texas, 441 U.S. 418, 423 (1979). It

both embodies and protects the “axiomatic and elementary” presumption of innocence that “lies at the

foundation of the administration of our criminal law.”

Coffin v. United States, 156 U.S. 432, 453 (1895); accord

Lego v. Twomey, 404 U.S. 477, 486-87 (1972) (“A high

standard of proof is necessary . . . to ensure against unjust convictions by giving substance to the presumption

of innocence.”). It is by now well settled that the obligation to prove guilt beyond a reasonable doubt is part of

the due process rights protected by the U.S. Constitution. In re Winship, 397 U.S. at 364.

5

As NACDL’s members know all too well, the jury

system is an imperfect safeguard of the constitutional

right to be convicted by proof beyond a reasonable

doubt. “[E]ven a properly instructed jury will sometimes act unreasonably, a reality the American judicial

system has recognized by providing for appeal of determinations of guilt in criminal trials.” Diane Kutzko, The

Jackson v. Virginia Standard for Sufficiency of the Evidence, 65 Iowa L. Rev. 799, 806 (1980); see also, e.g.,

Keith A. Findley, Innocence Protection in the Appellate

Process, 93 Marq. L. Rev. 591, 618 (2009) (“As is now obvious, trial-level factfinders can be and sometimes are

wrong.”).

There are many reasons why juries may sometimes

convict irrationally. Emotions, sympathy, or extrajudicial biases may cloud jurors’ capacity to reason. The

defendant may be particularly unpopular, or the case

may have received a high degree of public attention,

making rational analysis of the record evidence difficult.

Some cases are particularly complex, both factually and

legally. In other cases, jurors may misunderstand the

government’s burden of proof, notwithstanding the

court’s instructions. As Judge Jon O. Newman of the

Second Circuit has recognized, jury instructions on the

reasonable-doubt standard are “ambiguous and open to

widely disparate interpretation by jurors.” Jon O.

Newman, Beyond Reasonable Doubt, 68 N.Y.U. L. Rev.

979, 985 (1993). Although courts assume that any

“statement of the burden more rigorous than the ‘preponderance of the evidence’ standard reduces the

likelihood of conviction in close cases,” Judge Newman

observed that “[w]hether that assumption is true is difficult to measure.” Id. at 984. He recounted one study

that attempted to test that assumption by trying a case

before twenty-two mock juries, with three different in-

6

structions on the burden of persuasion: “The conviction

rate for the jurors who heard the ‘reasonable doubt’

standard was slightly lower than the vote for the group

hearing the ‘preponderance’ standard and fell significantly among the jurors hearing the ‘feel sure and

certain’ formulation.” Id. at 984-85 (citing London

School of Economics Jury Project, Juries and the Rules

of Evidence, 1973 Crim. L. Rev. 208). He identified another study in which jurors and judges were asked to

“quantify as a percentage of certainty” the preponderance-of-the-evidence and reasonable-doubt standards;

the jurors located those standards closer to each other

than did the judges. Id. at 984 (citing Rita James Simon

& Linda Mahan, Quantifying Burdens of Proof, 5 Law &

Soc’y Rev. 319 (1971)). Based on these and other studies,

Judge Newman concluded that “the traditional charge

might be producing some unwarranted convictions.” Id.

at 985.

B. Petitioners’ convictions illustrate the point. Petitioners’ convictions arose out of their applications for tax

credits under Louisiana’s film industry tax credit program. Through their film-related ventures, petitioners

purchased a building in New Orleans, intending to renovate and develop it into a postproduction film studio.

Pet. App. 4a. They applied for film infrastructure tax

credits to help offset the cost of the project. Pet. App.

4a. They were ultimately convicted, as is relevant here,

of mail and wire fraud in connection with their applications for the tax credits. Pet. App. 110a.

Petitioners challenged their convictions on the

ground that the evidence was insufficient. Pet. App.

110a. As to the core fraud charges, the district court

found the government’s case against petitioners “troubling.” Pet. App. 157a. According to the court, “the

7

evidence on the defendants’ intent as to certain fraud

charges gives equal or nearly equal circumstantial support to a theory of guilt and a theory of innocence.” Pet.

App. 113a n.18.

Nevertheless, the district court found itself “constrained” by the Fifth Circuit’s abandonment of its prior

“equipoise rule,” Pet. App. 166a, which had provided that

a reviewing court “must reverse a conviction if the evidence construed in favor of the verdict ‘gives equal or

nearly equal circumstantial support to a theory of guilt

and a theory of innocence of the crime charged.’” United

States v. Vargas-Ocampo, 747 F.3d 299, 301-02 (5th Cir.

2014) (en banc) (quoting United States v. Jaramillo, 42

F.3d 920, 923 (5th Cir. 1995)). Apparently because the

Fifth Circuit had jettisoned the equipoise rule—which

the district court noted was “of some consequence in this

case,” Pet. App. 113a n.18—the district court affirmed

the fraud convictions notwithstanding its concerns. In so

doing, it essentially asked whether there was some evidence in the record on which a rational juror could find

guilt, without separately assessing whether that evidence established guilt beyond a reasonable doubt. See

Pet. App. 165a-167a.2

C. This case is not an isolated incident. Juries sometimes convict defendants in cases where the evidence—

even when viewed in the light most favorable to the govJudge Newman warned of this tendency: “My concern is that federal appellate courts, including my own, examine a record to satisfy

themselves only that there is some evidence of guilt and do not conscientiously assess whether the evidence suffices to permit a finding

by the high degree of persuasion required by the ‘reasonable doubt’

standard.” Newman, supra, at 993.

2

8

ernment—is balanced evenly (or worse) between guilt

and innocence. See Jackson v. Virginia, 443 U.S. 307,

318-19 (1979). A common example is a case where the

government’s circumstantial evidence gives no way to

distinguish between different plausible and competing

inferences, one of which leads to guilt and the other to

innocence. In these and similar circumstances, courts

have applied the equipoise rule to hold that the government failed to prove the defendant’s guilt beyond a

reasonable doubt.

1. In an opinion by then-Judge Gorsuch, the Tenth

Circuit applied the equipoise rule in United States v.

Lovern, 590 F.3d 1095 (10th Cir. 2009). In that case, a

pharmacy computer technician was convicted of conspiracy to distribute controlled substances and distribution

of controlled substances in violation of the Controlled

Substances Act (“CSA”). Id. at 1099. The technician,

Robert Barron, was “a high-school dropout with no experience in the medical or pharmaceutical fields.” Id. at

1098. He worked for the Red Mesa Pharmacy, which

filled and shipped prescriptions placed through two websites (SafeTrust Processing and IntegraRx) that allowed

customers across the country to obtain prescription

drugs simply by filling out an online questionnaire. Id.

Barron’s job was to log into the SafeTrust and IntegraRx websites, access the prescriptions that Red Mesa

was to fill, and print labels for those prescriptions. Id. at

1105. His only training for these “menial computer

tasks” was a fifteen-minute phone call with SafeTrust

and IntegraRx representatives on how to access and

create accounts for the websites; he had no prior experience in pharmacies or any kind of medical training. Id.

The government brought charges against various defendants, including Barron, for violations of the CSA. Id.

9

at 1099. The government’s theory of liability required it

to show that Barron knew that the prescriptions he

helped fill were issued by physicians at SafeTrust and

IntegraRx who were “acting outside the usual course of

professional medical practice” or that the prescriptions

were issued without a legitimate medical purpose. Id. at

1104. The “strongest piece of evidence supporting the

government’s theory of the case” was an instant message

conversation in which Barron told a SafeTrust employee

that he did not want the expiration to run out on several

drugs that had been sitting at Red Mesa, and said,

“Hook a brother up on scripts. I need some fake customers please.” Id. at 1106-07 (internal quotation marks

omitted). At trial, the jury found Barron guilty. See id.

at 1098.

Writing for the court of appeals, Judge Gorsuch observed that the instant message left a reasonable

factfinder with several “equally reasonable” inferences.

Id. at 1107. One inference was that Barron believed that

there were no real customers at the other end of the prescriptions, because no customers ever appeared in

person at the pharmacy. Another reasonable inference

was that Barron thought that the pharmacy acted unlawfully by relying on the Internet to receive and process

orders. However, in order to sustain his conviction, the

evidence had to support an inference “not only that Barron knew that something was fishy” about the

pharmacy’s operations, but specifically that he “knew

that physicians working for SafeTrust and IntegraRx

wrote prescriptions without first meeting with their patients, and that this failure to do so was inconsistent with

legitimate medical practices or purposes.” Id. (emphasis

added); see also id. at 1109 (“Mr. Barron very likely

knew something was wrong at Red Mesa. But so many

things were wrong, and the government’s proof doesn’t

10

give a rational fact-finder any reason to think that,

among them all, Mr. Barron knew of the particular problem that gives rise to liability under the CSA . . . .”).

The court of appeals held that “[e]ven viewing the

message in the light most favorable to the jury’s verdict,

it gives us no way to distinguish among several plausible

and competing inferences about its meaning.” Id. at

1107. In a case where the evidence “‘gives equal or nearly equal circumstantial support to a theory of guilt and a

theory of innocence,’” “‘we must reverse the conviction,

as under these circumstances a reasonable jury must

necessarily entertain a reasonable doubt.’” Id. at 1107

(quoting United State v. Caseer, 399 F.3d 828, 840 (6th

Cir. 2005)). The court therefore reversed Barron’s convictions.

2. The Seventh Circuit confronted equally plausible

and competing inferences in a case that turned on the

distinction between conspiracy to distribute drugs and

nonconspiratorial drug dealing. See United States v.

Johnson, 592 F.3d 749 (7th Cir. 2010). Willie Earl Johnson appealed his convictions on several drug charges,

including one count of conspiracy to possess and distribute crack cocaine. Id. at 752. The government had

recorded a number of calls in which Johnson asked to

purchase resale quantities of drugs from his supplier or

from one of his supplier’s associates. Id. at 752-54. The

court noted that a drug-distributing conspiracy requires

proof that the defendant agreed with someone else to

distribute drugs. Id. at 754. It observed, however, that

when the alleged co-conspirators are in a buyer-seller

relationship, an agreement to buy drugs should not be

conflated “with the drug-distribution agreement that is

alleged to form the basis of the charged conspiracy.” Id.

11

The court described the plausible, competing inferences arising from the evidence as follows:

If the prosecution rests its case only on evidence that

a buyer and seller traded in large quantities of drugs,

used standardized transactions, and had a prolonged

relationship, then the jury would have to choose between two equally plausible inferences. On one hand,

the jury could infer that the purchaser and the supplier conspired to distribute drugs. On the other

hand, the jury could infer that the purchaser was just

a repeat wholesale customer of the supplier and that

the two had not entered into an agreement to distribute drugs to others.

Id. at 755. Because the plausibility of each inference is

about the same in this scenario, the “evidence is essentially in equipoise.” Id. The court ultimately reversed

Johnson’s conviction on the conspiracy charge. Id. at

789.

3. In United States v. Andujar, 49 F.3d 16 (1st Cir.

1995), the First Circuit also faced equally persuasive

theories of guilt or innocence. The case involved a drugconspiracy conviction arising out of an unsuccessful operation to import narcotics into Puerto Rico from

Colombia. The appellant, Jose Salvador Andujar, owned

a tire center in Puerto Rico. Id. at 18. Andujar told William Linder, who sold oysters from a kiosk adjacent to

the tire center, that one of his frequent oyster customers

(Pedro Infante-Ruiz, or “Infante”) wanted to see him inside the tire center. Id. at 19. During that meeting,

Infante asked Linder to use his boat to retrieve a load of

drugs. Id. Linder, a confidential government informant,

agreed to do so, and then informed the government of

Infante’s illegal offer. Id. The next day, Linder re-

12

turned to the tire center, where Andujar instructed him

to return the following day to meet Infante. Id. When

Infante was late to that scheduled meeting, Linder requested that Andujar call Infante to determine his

whereabouts, which Andujar did. Id. Infante arrived

shortly thereafter and picked up Linder. Id.

The scheduled rendezvous in the ocean was ultimately unsuccessful, as the boat carrying the drugs from

Colombia never appeared and Linder’s boat sank during

the expedition. Id. at 20. Afterwards, Infante told

Linder not to tell anyone about the failed mission and

instructed him to tell Andujar if he ever needed to speak

with Infante. Id. Andujar, along with others, was subsequently indicted and convicted of conspiracy to import

marijuana and a related firearms offense. Id.

In reviewing the sufficiency of the evidence, the First

Circuit noted that while Andujar arranged meetings between Linder and Infante, he was not present at the

meetings, and there was no evidence that would have

suggested to him that the meetings concerned a pending

drug deal. Id. at 21-22. Andujar argued, rather, that

“the evidence at trial showed no more than ‘mere presence’ at the Tire Center.” Id. at 21. The court found

that Andujar’s actions “offer[ed] equal support to both

Andujar’s mere presence theory and the prosecution’s

theory that Andujar was knowingly acting as a facilitator

and go-between in the conspiracy, which of course constitutes participatory involvement.” Id. at 22. In this

circumstance, “[w]hen a jury is confronted . . . with

equally persuasive theories of guilt and innocence, it

cannot rationally find guilt beyond a reasonable doubt.”

Id. The court therefore vacated Andujar’s conviction for

conspiracy to import marijuana. Id.

13

II. The “Equipoise Rule” Helps Courts To Fulfill Their Duty

To Protect Defendants’ Right To Be Convicted by Proof

Beyond a Reasonable Doubt

When a jury irrationally convicts a defendant based

on evidence that does not establish guilt beyond a reasonable doubt, it is the court’s obligation to undo that

unconstitutional conviction. The equipoise rule adopted

by a majority of the courts of appeals provides courts

with an analytic framework for assessing the sufficiency

of the evidence under the standard set forth in Jackson

v. Virginia, 443 U.S. 307 (1979). It appropriately anchors the sufficiency-of-the-evidence analysis in the

spectrum of burdens of proof with which district courts

are intimately familiar, giving effect to the undeniable

proposition that if the evidence is evenly balanced between guilt and innocence, even after the evidence is

viewed in the light most favorable to the government, no

rational jury could find guilt beyond a reasonable doubt.

As this case proves, the Third and Fifth Circuits’ rejection of this common-sense rule may produce

unconstitutional convictions.

A. A Court Must Enter a Judgment of Acquittal If No

Rational Factfinder Could Find Guilt Beyond a

Reasonable Doubt

As set forth above, the requirement to prove guilt

beyond a reasonable doubt “plays a vital role in the

American scheme of criminal procedure.” In re Winship, 397 U.S. at 363. It gives “‘concrete substance’ to

the presumption of innocence, . . . ensure[s] against unjust convictions, and . . . reduce[s] the risk of factual

error in a criminal proceeding.” Jackson, 443 U.S. at 315

(quoting In re Winship, 397 U.S. at 363). “At the same

time by impressing upon the factfinder the need to reach

a subjective state of near certitude of the guilt of the ac-

14

cused, the standard symbolizes the significance that our

society attaches to the criminal sanction and thus to liberty itself.” Id. (citing In re Winship, 397 U.S. at 372

(Harlan, J., concurring)).

In Jackson v. Virginia, 443 U.S. 307 (1979), this

Court acknowledged the crucial role that courts play in

protecting defendants’ due process right to be convicted

only upon proof beyond a reasonable doubt. This Court

held that, because the reasonable-doubt standard is of

constitutional dimension, the evidentiary record must

support a factfinder’s conclusion of guilt: when deciding

a motion for acquittal, the reviewing court’s task “must

be not simply to determine whether the jury was properly instructed, but to determine whether the record

evidence could reasonably support a finding of guilt beyond a reasonable doubt.” Id. at 318 (emphasis added).

Under Jackson, a court may not affirm a conviction after

finding only that some evidence supports the conviction,

as “it could not seriously be argued that . . . a ‘modicum’

of evidence could by itself rationally support a conviction

beyond a reasonable doubt.” Id. at 320. Nor may a reviewing court satisfy itself as to the propriety of a

conviction by concluding that the jury was properly instructed. See id. at 316-17. Rather, the court must

evaluate the record evidence to ascertain “whether, after

viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found

the essential elements of the crime beyond a reasonable

doubt.” Id. at 319.

To be sure, Jackson also makes clear that a reviewing court’s role in this arena has limits. A reviewing

court is not to supplant the role of the factfinder by reweighing the evidence. See id. at 318-19 (stating that a

reviewing court is not to “‘ask itself whether it believes

15

that the evidence at the trial established guilt beyond a

reasonable doubt’” (quoting Woodby v. INS, 385 U.S.

276, 282 (1966) (emphasis added in Jackson)). Thus, it

may not resolve conflicts in testimony nor evaluate the

credibility of witnesses. The reviewing court’s role, in

giving effect to the reasonable-doubt standard, is limited

to assessing whether the evidence, viewed in the light

most favorable to the government, provides a rational

factfinder with sufficient evidence to find guilt beyond a

reasonable doubt. See id.

Implicit in Jackson (and Rule 29) is the recognition

that factfinders do not always act rationally. See Jackson, 443 U.S. at 317 (“[A] properly instructed jury may

occasionally convict even when it can be said that no rational trier of fact could find guilt beyond a reasonable

doubt, and the same may be said of a trial judge sitting

as a jury.”); see also Freeman v. Zahradnick, 429 U.S.

1111, 1112 (1977) (Stewart, J., dissenting from denial of

certiorari). In such instances, the conviction cannot

stand as a matter of due process. It is the duty of reviewing courts to enter a judgment of acquittal in such

circumstances.

B. In Cases Where the Evidence Is in Equipoise, No

Rational Factfinder Could Find Guilt Beyond a

Reasonable Doubt

The equipoise rule helpfully anchors Jackson’s constitutionally mandated analysis in the spectrum of

burdens of proof that exist in our legal system. Burdens

of proof “instruct the fact-finder concerning the degree

of confidence our society thinks he should have in the

correctness of factual conclusions for a particular type of

adjudication.” In re Winship, 397 U.S. at 370 (Harlan,

J., concurring). In application, the burden of proof tells

the factfinder when a case is “close” and how to decide

16

such “close” cases. See Barbara D. Underwood, The

Thumb on the Scales of Justice: Burdens of Persuasion

in Criminal Cases, 86 Yale L. J. 1299, 1299 (1977).

In the civil context, the typical burden of proof is the

preponderance-of-the-evidence standard, which “simply

requires the trier of fact to believe that the existence of a

fact is more probable than its nonexistence before he

may find in favor of the party who has the burden to persuade the judge of the fact’s existence.” Concrete Pipe &

Prods. of Cal., Inc. v. Constr. Laborers Pension Tr. for S.

Cal., 508 U.S. 602, 622 (1993) (brackets and internal quotation marks omitted) (alteration in original); see also

Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S.

308, 329 (2007). As this Court has recognized, proof beyond a reasonable doubt is, by definition, proof that is

substantially more convincing than proof by the preponderance of the evidence. Addington, 441 U.S. at 423-25.

In fact, some jurisdictions expressly instruct juries that

the State’s proof in a criminal case must be “more powerful” than the preponderance-of-the-evidence standard

used in civil cases. E.g., Barbara E. Bergman, Criminal

Jury Instructions for the District of Columbia 2-17 (5th

ed. 2018); N.J. Model Jury Charge, Reasonable Doubt

(rev. Feb. 24, 1997) (same); see also 1A Kevin F.

O’Malley, et al., Federal Jury Practice & Instructions

§ 12.10 (6th ed. 2008) (“If the jury views the evidence in

the case as reasonably permitting either of two conclusions—one of innocence, the other of guilt—the jury

must, of course, adopt the conclusion of innocence.”).

The equipoise rule helpfully ties the Jackson analysis

to these familiar burdens of proof. The reasonable-doubt

standard demands more than a mere likelihood, or probability, of guilt; it requires a level of proof “designed to

exclude as nearly as possible the likelihood of an errone-

17

ous judgment.” Addington, 441 U.S. at 423. In cases

where the evidence is evenly or near-evenly balanced—

i.e., where the government has not proven guilt by even

a preponderance of the evidence—the reviewing court

cannot properly conclude that guilt beyond a reasonable

doubt has been established. As a matter of common

sense, the reasonable-doubt standard cannot be satisfied

when the evidence as to a necessary element of the offense is in equipoise.

Courts that embrace the equipoise rule have recognized this truism. See, e.g., Johnson, 592 F.3d at 755

(“the evidence is essentially in equipoise; the plausibility

of each inference is about the same, so the jury necessarily would have to entertain a reasonable doubt on the

conspiracy charge”); Lovern, 590 F.3d at 1107 (“[W]here,

as here, the evidence gives equal or nearly equal circumstantial support to a theory of guilt and a theory of

innocence, we must reverse the conviction, as under

these circumstances a reasonable jury must necessarily

entertain a reasonable doubt.” (internal citation and

punctuation omitted)); United States v. Flores-Rivera,

56 F.3d 319, 323 (1st Cir. 1995) (“[W]here an equal or

nearly equal theory of guilt and a theory of innocence is

supported by the evidence viewed in the light most favorable to the prosecution, a reasonable jury must

necessarily entertain a reasonable doubt.” (citation and

internal quotation marks omitted)); see also Harris v.

United States, 125 A.3d 704, 709 (D.C. 2015) (“Where evidence of guilt is in equipoise with evidence of innocence,

it is perforce insufficient for conviction by the constitutional standard, beyond a reasonable doubt.”); Taylor v.

State, 697 A.2d 462, 465 (Md. 1997) (“[W]hen the evidence equally supports two versions of events, and a

finding of guilt requires speculation as to which of the

two versions is correct, a conviction cannot be sus-

18

tained.”). If it were otherwise, the reasonable-doubt

standard would be indistinguishable from the laxer preponderance-of-the-evidence standard used in the civil

context.

C. The

Equipoise

Rule

Meaningfully

Defendants’ Constitutional Rights

Protects

By mandating that courts enter acquittal when the

evidence is in equipoise, the equipoise rule implements

the constitutional requirement to prove guilt beyond a

reasonable doubt. Permitting convictions to stand when

the evidence is in equipoise would eviscerate the due

process protections recognized in In re Winship and

Jackson.

The Third and Fifth Circuit’s rejection of the equipoise rule affects all criminal defendants tried in those

Circuits. It authorizes district courts to affirm convictions whenever the government produces some evidence

of guilt, even when a rational jury would find the evidence of guilt and innocence to be in equipoise. Indeed,

the district court apparently believed that the Fifth Circuit’s rejection of the equipoise rule required it to affirm

the conviction in this case, notwithstanding that the evidence was in equipoise. See p. 7, supra. The Court

should grant certiorari and reverse the judgment below

to restore defendants’ due process rights in the Third

and Fifth Circuits and to implement the common-sense

proposition that, when the government’s evidence is in

equipoise, by necessity the government has failed to

prove guilt beyond a reasonable doubt.

19

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

JEFFREY T. GREEN

CO-CHAIR, NATIONAL ASSOCIATION OF CRIMINAL

DEFENSE LAWYERS AMICUS

COMMITTEE

1660 L Street, N.W.

Washington, DC 20036

(202) 872-8600

AMY MASON SAHARIA

Counsel of Record

WENDY ZORANA ZUPAC

WHITNEY G. WOODWARD*

WILLIAMS & CONNOLLY LLP

725 Twelfth Street, N.W.

Washington, DC 20005

(202) 434-5000

asaharia@wc.com

MARCH 13, 2019

Admitted only in Illinois. Practice supervised by D.C. Bar

members pursuant to D.C. Court of Appeals Rule 49(c)(8).

*