Petition for Writ of Certiorari — Demetrios Stavrakis, aka Dimitrios Stavrakis, aka Jimmy, Petitioner v. United States

No. _________

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------DEMETRIOS STAVRAKIS,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

---------------------------------♦--------------------------------On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fourth Circuit

---------------------------------♦--------------------------------PETITION FOR WRIT OF CERTIORARI

---------------------------------♦--------------------------------HOWARD SREBNICK

Counsel of Record

BENJAMIN S. WAXMAN

BLACK SREBNICK

201 S. Biscayne Boulevard

Suite 1300

Miami, Florida 33131

Telephone: (305) 371-6421

Email: HSrebnick@RoyBlack.com

Email: BWaxman@RoyBlack.com

Counsel for Petitioner

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTION PRESENTED

Whether a federal court, assessing the sufficiency

of the evidence in a criminal case based wholly on circumstantial evidence, must apply the “rule of equipoise” and grant a motion for judgment of acquittal

when, construing the evidence in the light most favorable to the government, evidence of guilt and innocence is evenly balanced.

ii

RELATED CASES

United States Court of Appeals for the Fourth Circuit, Nos. 20-4149, 20-4184, United States v. Demetrios

Stavrakis, Judgment entered February 24, 2022;

United States District Court for the District of

Maryland, No. ELH-19-00160, United States v. Demetrios Stavrakis, Amended Judgment and Conviction

and Sentence entered February 25, 2020.

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED...................................

i

RELATED CASES ...............................................

ii

TABLE OF CONTENTS ......................................

iii

TABLE OF AUTHORITIES .................................

v

OPINIONS BELOW.............................................

1

JURISDICTION ...................................................

1

RELEVANT CONSTITUTIONAL PROVISION

AND FEDERAL RULE ....................................

1

INTRODUCTION ................................................

2

STATEMENT OF THE CASE..............................

4

REASONS FOR GRANTING THE WRIT............ 10

ARGUMENT ........................................................ 11

I.

The courts of appeals are divided over the

applicability of the equipoise rule ............. 11

II.

The question of whether courts should

apply the “rule of equipoise” in evaluating

claims of legally insufficient evidence in

entirely circumstantial criminal cases is

exceptionally important ............................ 17

III.

This case presents an opportune vehicle to

resolve the circuit split over the applicability of the rule of equipoise ..................... 22

CONCLUSION..................................................... 26

iv

TABLE OF CONTENTS—Continued

Page

APPENDIX

United States Court of Appeals for the Fourth

Circuit, Opinion, February 24, 2022 ................ App. 1

United States Court of Appeals for the Fourth

Circuit, Judgment, February 24, 2022 .......... App. 22

United States District Court for the District of

Maryland, Memorandum, February 7, 2020 .... App. 24

United States District Court for the District of

Maryland, Order, February 7, 2020 ............... App. 53

United States Court of Appeals for the Fourth

Circuit, Order, April 5, 2022 .......................... App. 54

v

TABLE OF AUTHORITIES

Page

CASES

Commonwealth v. Croft, 345 Mass. 143 (1962) ..........16

Commonwealth v. Goss, 428 S.W.3d 619 (Ky.

2014) ........................................................................16

Cosby v. Jones, 682 F.2d 1373 (11th Cir. 1982) ..........12

Cotton v. State, 144 So. 3d 137 (Miss. 2014) ..............16

Curley v. United States, 160 F.2d 229 (D.C. Cir.),

cert. denied, 331 U.S. 837 (1947) .......................... 15

Day v. State, 303 P.3d 291 (Okla. Crim. App.

2013) ........................................................................16

Harris v. United States, 125 A.3d 704 (D.C. Cir.

2015) ........................................................................16

Haskins v. Commonwealth, 44 Va. App. 1 (2004) .......16

Hoffman v. United States, 139 S. Ct. 2615

(2019) ........................................................... 20, 21, 22

Holland v. United States, 348 U.S. 121 (1954) ...........19

In re J.B., 189 A.3d 390 (Pa. 2018) .............................16

In re Winship, 397 U.S. 358 (1970) .............................18

Ingram v. United States, 360 U.S. 672 (1959) .... 17, 23, 25

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

Mackey v. State, 2002 WL 31521379 (Tex. App.

Nov. 14, 2002) ..........................................................16

Reid v. State, 212 Ga. App. 787 (1994), overruled

on other grounds by Maddox v. State, 322 Ga.

App. 811 (2013) .......................................................16

State v. May, 689 S.W.2d 732 (Mo. Ct. App. 1985) .......16

vi

TABLE OF AUTHORITIES—Continued

Page

State v. Ruiz, 1998 WL 436557 (Ariz. Ct. App.

Aug. 4, 1998) ............................................................16

State v. Schweitzer, 18 A. 787 (Conn. 1889) ...............16

State v. Sutphin, 107 N.M. 126 (1988) .......................16

Tatum v. State, 63 Ala. 147 (1879) .............................16

Taylor v. State, 346 Md. 452 (1997) ............................16

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

1995) ........................................................................11

United States v. Bishop, 959 F.2d 820 (9th Cir.

1992) ........................................................................14

United States v. Boesen, 491 F.3d 852 (8th Cir.

2007) ........................................................................11

United States v. Cabezas-Monano, 949 F.3d 567

(11th Cir. 2020)........................................................19

United States v. Caraballo-Rodriguez, 726 F.3d

418 (3d Cir. 2013) ....................................................15

United States v. Caseer, 399 F.3d 828 (6th Cir.

2005) ................................................................ passim

United States v. Christian, 452 F. App’x 283 (4th

Cir. 2011) .................................................................10

United States v. Ellerbee, 73 F.3d 105 (6th Cir.

1996) ...................................................................... 8, 9

United States v. Fernandez-Jorge, 894 F.3d 36

(1st Cir. 2018) .................................................... 11, 14

United States v. Gaines, 815 F. App’x 709 (4th

Cir. 2020), cert. denied, 141 S. Ct. 1371 (2021) ..... 3, 20

vii

TABLE OF AUTHORITIES—Continued

Page

United States v. Henning; 785 F. App’x 430 (9th

Cir. 2019), cert. denied, 141 S. Ct. 819 (2020) ..... 3, 20

United States v. Hoffman, 901 F.3d 523 (5th Cir.

2018), cert. denied, 139 S. Ct. 2615 (2019) ..... 3, 4, 20

United States v. Johnson, 592 F.3d 749 (7th Cir.

2010) ............................................................ 11, 12, 14

United States v. Leon, 534 F.2d 667 (6th Cir.

1976) ..........................................................................8

United States v. Lopez-Diaz, 794 F.3d 106 (1st

Cir. 2015) ............................................................. 3, 12

United States v. Louis, 861 F.3d 1330 (11th Cir.

2017) .................................................................. 11, 14

United States v. Lovern, 590 F.3d 1095 (10th Cir.

2009) ........................................................ 2, 11, 18, 19

United States v. Makriannis, 774 F.2d 1164 (6th

Cir. 1985) ......................................................... 8, 9, 23

United States v. Nevils, 598 F.3d 1158 (9th Cir.

2010) .................................................................. 13, 14

United States v. Shi, 991 F.3d 198 (D.C. Cir.

2021) ........................................................................15

United States v. Simon, 12 F.4th 1 (1st Cir.

2021), cert. denied sub nom. Kapoor v. United

States, 142 S. Ct. 2811 (2022) ............................. 3, 20

United States v. Stone, 748 F.2d 361 (6th Cir.

1984) ...................................................................... 8, 9

United States v. Tillmon, 954 F.3d 628 (4th Cir.

2019) ........................................................................19

viii

TABLE OF AUTHORITIES—Continued

Page

United States v. Tinsley, 228 F. App’x 317 (4th

Cir. 2007) .................................................................10

United States v. Valle, 807 F.3d 508 (2d Cir.

2015) ............................................................ 11, 12, 14

United States v. Vargas-Ocampo, 747 F.3d

299 (5th Cir.), cert. denied, 574 U.S. 864

(2014) ................................................. 3, 12, 13, 15, 20

United States v. Wright, 835 F.2d 1245 (8th Cir.

1987) .................................................................. 11, 12

United States v. Yoakam, 116 F.3d 1346 (10th

Cir. 1997) .................................................................23

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. V .............................................. 1, 22

STATUTES

18 U.S.C. § 1343 ............................................................4

18 U.S.C. § 844(h)(1) .....................................................4

18 U.S.C. § 844(i) ...........................................................4

28 U.S.C. § 1254(1) ........................................................1

1

OPINIONS BELOW

The unpublished opinion of the Fourth Circuit

Court of Appeals is found at 2022 WL 563242 and is

reprinted in the Appendix to the Petition (“App.”) at

1-21. The district court’s order denying Petitioner’s motion for judgment of acquittal is reprinted at App. 53.

---------------------------------♦---------------------------------

JURISDICTION

The Fourth Circuit Court of Appeals issued its

judgment on February 24, 2022, App. 22-23, and denied

rehearing and rehearing en banc on April 5, 2022,

App. 54-55. This Court has jurisdiction under 28 U.S.C.

§ 1254(1). Chief Justice Roberts extended the time for

filing this Petition until September 2, 2022.

---------------------------------♦---------------------------------

RELEVANT CONSTITUTIONAL PROVISION

AND FEDERAL RULE

The Due Process Clause provides: “No person shall

. . . be deprived of life, liberty, or property, without due

process of law.” U.S. Const. amend. V.

Federal Rule of Criminal Procedure 29 provides:

Motion for a Judgment of Acquittal (a) Before

Submission to the Jury. After the government

closes its evidence or after the close of all the

evidence, the court on the defendant’s motion

must enter a judgment of acquittal of any offense for which the evidence is insufficient to

sustain a conviction. . . . (b) Reserving Decision.

2

The court may reserve decision on the motion,

proceed with the trial (where the motion is

made before the close of all the evidence), submit the case to the jury, and decide the motion

either before the jury returns a verdict or after it returns a verdict of guilty. . . . If the

court reserves decision, it must decide the motion on the basis of the evidence at the time

the ruling was reserved. (c) After Jury Verdict

or Discharge. (1) Time for a Motion. A defendant may move for a judgment of acquittal, or

renew such a motion, within 14 days after a

guilty verdict or after the court discharges the

jury, whichever is later. (2) Ruling on the Motion. If the jury has returned a guilty verdict,

the court may set aside the verdict and enter

an acquittal. . . .

---------------------------------♦---------------------------------

INTRODUCTION

The “rule of equipoise” holds that in a purely circumstantial evidence case, after viewing the evidence in the light most favorable to the prosecution,

if “the evidence . . . gives equal, or nearly equal circumstantial support to a theory of guilt and a theory

of innocence,” a trial court must direct a judgment of

acquittal, and an appellate court must reverse a conviction. See App. 17-18 (quoting United States v. Caseer,

399 F.3d 828, 840 (6th Cir. 2005)). Accord United

States v. Lovern, 590 F.3d 1095, 1107 (10th Cir. 2009)

(then-Judge Gorsuch applying rule of equipoise to reverse conviction). This is a corollary to the Due Process rule of Jackson v. Virginia, 443 U.S. 307 (1979),

3

that a conviction cannot stand unless “after viewing

the evidence in the light most favorable to the prosecution, a[ ] rational trier of fact could have found the

essential elements of the crime beyond reasonable

doubt.” Id. at 319. See United States v. Lopez-Diaz, 794

F.3d 106, 111-12 (1st Cir. 2015) (quotation omitted);

Caseer, 399 F.3d at 840.

The federal circuit courts of appeals, as well as

state appellate courts around the country, are sharply

divided on whether to apply the rule of equipoise. Thus,

today, whether a defendant, upon identical evidence,

must be acquitted or can be convicted of an alleged

criminal offense depends on the jurisdiction in which

he or she is prosecuted.

This important and substantial question of

whether the rule of equipoise must be applied has been

presented to this Court several times in recent years

without resolution. See United States v. Simon, 12

F.4th 1 (1st Cir. 2021), cert. denied sub nom. Kapoor v.

United States, 142 S. Ct. 2811 (2022); United States v.

Gaines, 815 F. App’x 709 (4th Cir. 2020), cert. denied,

141 S. Ct. 1371 (2021); United States v. Henning; 785

F. App’x 430 (9th Cir. 2019), cert. denied, 141 S. Ct. 819

(2020); United States v Hoffman, 901 F.3d 523 (5th Cir.

2018), cert. denied, 139 S. Ct. 2615 (2019); United

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

denied, 574 U.S. 864 (2014). It has drawn the attention

and concern of fourteen distinguished retired judges, a

panel of nine distinguished law professors, and the

40,000-member-strong National Association of Criminal Defense Lawyers, all of whom filed amicus briefs in

4

support of the Hoffman petition. Briefs of Retired Federal Judges, Criminal Law Professors, and NACDL as

Amicus Curiae in Support of Petitioners, Hoffman, 139

S. Ct. 2615 (No. 18-1049). This case, in which the

Fourth Circuit Court of Appeals declined to apply the

rule, and in which the evidence of the arson and fraud

charges against Petitioner was unquestionably, wholly

circumstantial, presents an opportune vehicle to resolve this critical issue bearing on the fundamental

right to due process of law.

---------------------------------♦---------------------------------

STATEMENT OF THE CASE

Petitioner’s appeal arose from his convictions for

violating 18 U.S.C. § 844(h)(1), using fire to commit a

federal offense, to wit wire fraud; 18 U.S.C. § 1343, two

counts of wire fraud; and 18 U.S.C. § 844(i), arson. App.

4-5. The charges arose from the July 29, 2015, intentionally-set-fire of petitioner’s solely owned precision

machine shop business, Adcor, and the $15 million insurance claim petitioner made (and was paid) for the

loss. App. 3-4. The person(s) who actually set the building ablaze was (were) never identified.

Absent any evidence implicating petitioner personally in setting the fire, and uncontroverted evidence

that, at the time of the fire, he was miles away at

home, the government’s case was built on speculation

that petitioner had a motive to hire someone to torch

his family-run business (for the insurance proceeds),

and “suspicious circumstances” that he created the

5

opportunity for some unidentified accomplice to set the

fire. App. 5. “[T]he government introduced ‘voluminous

evidence’ that Adcor had been in dire financial straits

since 2010, . . . [and] had been forced to default on multiple loans and entered various forbearance agreements with its lenders.” Id. But petitioner introduced

voluminous evidence and “argu[ed] that business was

turning around in 2015 after several difficult years,

and that he had a backlog of orders by the time of the

fire.” App. 8. Additionally, he introduced evidence and

argued that Adcor’s “loan and forbearance agreements

. . . were common practice in the manufacturing business, and he had paid off much of the debt by 2015.” Id.

Although the government’s evidence unequivocally established that there was no forced entry and

the fire was set shortly before 1:30 a.m., App. 3-5, it

allowed the possibility of at least three different points

of entry. The government hypothesized that the arsonist entered through the front lobby door. “Central to

the government’s case” was a surveillance video that

“showed [petitioner] tampering with the security system at Adcor’s front door on the evening before the

fire.” App. 6. But overwhelming evidence established

an array of long-standing problems with the lobby

door’s security which explained why petitioner taped

the electronic latch as he left that evening, App. 8, leaving fully intact the keyed deadbolt (which key also

could unlock the latch), and a motion-triggered surveillance camera and alarm system (which failed to detect

any entrant at 12:25 a.m. when the inside lobby alarm

6

was disarmed). App. 6-8. See JA:249, 256, 685-86, 1084,

3466, 3469.1

It was equally plausible, hardly “wildly speculative,” App. 11, 16, that an arsonist unconnected to petitioner entered the unsecured roof hatch, readily

accessible from outside and unmonitored by Adcor’s security system, JA:2057-59, that gave easy access to the

alarm system keypad inside the front shop door (that

could have disarmed both the alarm zone on the shop

floor and the one in the front lobby area). JA:1944.

Such an arsonist, who knew of or discovered the presence of the methanol in the drum in the back room of

the warehouse, could easily have set the fire that originated in the highly flammable, wooden structure that

sat at the core of Adcor’s array of expensive machinery.

JA:384, 1054, 1201-03, 2979. Other evidence showed

that the front shop door could be entered by any

stranger or insider by use of a common screwdriver.

JA:2041-42.

Substantial and compelling evidence established

that two former disgruntled employees were motivated, and had the opportunity, to torch petitioner’s

business. Although they “[b]oth testified at trial as to

their innocence, [and] neither was cross-examined by

the defense,” App. 7, both had strong reasons to seek

revenge against petitioner. Long-time former employee

Brown was unceremoniously fired by petitioner two

years earlier, together with three immediate family

1

The “JA” references are to the Joint Appendix that was filed

in the Fourth Circuit Court of Appeals.

7

members, amidst dissatisfaction with his standing at

Adcor and controversy regarding his entitlement to

benefits for certain Adcor intellectual property. JA:90304, 918-22. Brown admitted that petitioner’s lawsuit

against him, that settled one year before the fire, financially crippled him. JA:922-30. DeMilt, another

long-tenured executive employee, also claimed he was

professionally disrespected by petitioner shortly before

he quit and was stiffed out of $50,000 in commissions.

JA:1494-95, 1500, 1505-08. Either would have “benefitted” substantially from their revenge by destroying

petitioner’s business. App. 11.

Regarding the wire fraud charge arising from submission of a $30,000 claim for a new security system,

even as the panel recounted the evidence, it required a

precarious chain of inferences to establish petitioner’s

intent to defraud. Whatever oversight responsibility

petitioner may have had for this small facet of Adcor’s

huge insurance claim, petitioner unquestionably assigned it to his number two executive, Hyatt. App. 7, 8,

12. Hyatt was responsible for assessing the damage

and obtaining repair/replacement bids. It was clear

that the security system that was there failed to avert

or capture the unpermitted entry. Travelers, the insurance company that paid the claim, had full access to

Adcor and had independently gaged the damage to the

security system. App. 9. Hyatt only presented his bids

to Adcor’s public adjuster, not Travelers. It was the

public adjuster who ultimately submitted the alleged

“fraudulent” claim, as part of an entirely transparent

process. Petitioner was not copied on the submission to

8

Travelers. There was no evidence he reviewed this

amidst the overwhelming and chaotic claim and restoration process. And Travelers paid a greatly reduced

settlement without accusing Stavrakis. As the panel

seemed to recognize, the only way to bridge this evidentiary gap was to resort to the separately challenged

“willful blindness” instruction. App. 13, 19.

In its Memorandum denying petitioner’s renewed,

post-verdict motion for judgment of acquittal, the district court rejected his reliance on United States v.

Makriannis, 774 F.2d 1164 (6th Cir. 1985), an unpublished opinion with facts bearing an uncanny resemblance to the instant case. App. 48-50. These

included clear evidence of arson, a business in bad financial straits, an alarm secured premises with no

sign of forced entry, and a substantial insurance claim.

Makriannis at *1-*2. In a case where “[t]he evidence

clearly establishe[d] arson,” id. at *1, and “[t]here [wa]s

sufficient evidence . . . to support the conclusion that

defendant had both motive and opportunity to commit

the arson,” id. at *2, the court overturned the verdicts

holding: “We find, at best, that the government’s case

presented evidence sufficient to support equally persuasive inference[s] of both guilt and innocence. This

equipoise cannot sustain a criminal conviction.” Id. at

*1.

The district court rejected Makriannis because

the case upon which it relied for application of the rule

of equipoise, United States v. Leon, 534 F.2d 667 (6th

Cir. 1976), had been “overruled” by United States v.

Ellerbee, 73 F.3d 105, 107 (6th Cir. 1996), and United

9

States v. Stone, 748 F.2d 361, 363 (6th Cir. 1984). App.

50.2 Although the panels in Stone and Ellerbee purported to abrogate the rule, in Caseer, 399 F.3d 828 at

840, a case not cited by the district court, the Sixth Circuit subsequently applied the rule of equipoise to reverse a conviction on insufficiency grounds. Id.

On February 24, 2022, Judges Wilkinson, Motz,

and Harris of the Fourth Circuit Court of Appeals issued their 19-page, unpublished opinion, App. 1-21,

and judgment, App. 22-23, affirming Mr. Stavrakis’

conviction and 15-year sentence. It predominantly addressed whether the wholly circumstantial evidence

adduced at a “lengthy and complex jury trial,” App. 5,

was legally sufficient to support guilty verdicts on arson and fraud charges. The opinion touched on the

question of whether the Fourth Circuit should adopt

the “rule of equipoise.” App. 17-18 (citation omitted).

The panel noted that “the parties spen[t] much of their

briefing addressing this doctrine and a purported disagreement among the circuits as to its vitality.” Id. But

it declined to fully address the issue, as it has done on

2

The district court added, secondarily, that Makriannis was

distinguishable because Makriannis made an inquiry about a

possible gas leak at the torched restaurant that the government

relied upon as evidence of guilty knowledge. App. 50. The Sixth

Circuit said this was “too ambiguous to support an inference of

clear knowledge of arson.” Id.; 774 F.2d at *2. But this is little

different from Stavrakis’ “ambiguous” acts in taping the front

door (to redress the recurrent sticking problem) and not immediately sharing this with the ATF agents (in the chaotic aftermath

of the fire).

10

previous occasions,3 because it determined, relying predominantly on the district court’s analysis (raising

doubts about its application of the applicable de novo

standard of review), that the conflicting evidence

“made a substantial and ‘compelling’ case against the

defendant” and, thus, “the evidence here is not in equipoise.” Id.

---------------------------------♦---------------------------------

REASONS FOR GRANTING THE WRIT

This petition presents a critical question that has

deeply divided the federal courts of appeals, as well as

the highest state appellate courts around the country,

and warrants this Court’s review.

The federal courts of appeals are divided over

whether a district court should direct a judgment of

acquittal, or a circuit court should reverse a criminal

conviction, when, in a case relying solely on circumstantial evidence, and after viewing the evidence in the

light most favorable to the government, the evidence

supporting guilt and the evidence supporting innocence are in equipoise. Such evidence necessarily requires that the trier of fact entertain a reasonable

doubt of guilt. But the district court below, as well as

the Fourth Circuit Court of Appeals, declined to apply

this rule to this case. In most circuits, the district court,

3

The Fourth Circuit neither adopted nor rejected the rule of

equipoise in United States v. Christian, 452 F. App’x 283, 286 n.2

(4th Cir. 2011); United States v. Tinsley, 228 F. App’x 317, 320

(4th Cir. 2007).

11

applying the rule of equipoise, would have granted

the petitioner’s motion for a judgment of acquittal or

the court of appeals would have reversed. Only this

Court can resolve the conflict over this recurring and

important question. This case presents an opportune

vehicle through which to do so.

The petition should be granted, and the decision

below reversed.

---------------------------------♦---------------------------------

ARGUMENT

I.

The courts of appeals are divided over the

applicability of the equipoise rule.

The First, Second, Sixth, Seventh, Eighth, Tenth,

and Eleventh Circuits hold that, where evidence of

guilt and innocence is in equipoise, a conviction cannot

stand.4 The First Circuit adopted the equipoise rule in

United States v. Andujar, 49 F.3d 16, 20 (1st Cir. 1995).

As it explained in one of its many cases reaffirming its

approach, that rule is essential to satisfy due process:

If the evidence viewed in the light most favorable to the verdict gives equal or nearly equal

circumstantial support to a theory of guilt or

4

E.g., United States v. Fernandez-Jorge, 894 F.3d 36, 51 (1st

Cir. 2018); United States v. Louis, 861 F.3d 1330, 1333 (11th Cir.

2017); United States v. Valle, 807 F.3d 508, 515 (2d Cir. 2015);

United States v. Johnson, 592 F.3d 749, 755 (7th Cir. 2010);

United States v. Lovern, 590 F.3d 1095, 1107 (10th Cir. 2009);

United States v. Boesen, 491 F.3d 852, 857 (8th Cir. 2007); Caseer,

399 F.3d 828, 840 (6th Cir. 2005); United States v. Wright, 835

F.2d 1245, 1249 n.1 (8th Cir. 1987).

12

a theory of innocence . . . a reasonable jury

must necessarily entertain a reasonable

doubt.

Lopez-Diaz, 794 F.3d at 111-12 (1st Cir. 2015) (quotation omitted). The Sixth Circuit adopted the equipoise

rule in United States v. Caseer, 399 F.3d 828 (6th Cir.

2005), likewise explaining: “If 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 840 (internal citation and quotation

marks omitted). The Second, Seventh, Eighth, Tenth,

and Eleventh Circuits have endorsed the rule for the

same reasons.5

It appears that only two federal circuit courts of

appeals have rejected the rule of equipoise. Although

the Fifth Circuit initially followed the equipoise rule

too, that court, sitting en banc, rejected the rule in

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

2014) (en banc). In the Fifth Circuit’s view, the equipoise rule “usurp[s] the jury’s function” because it encourages appellate courts to engage in “ ‘the type of

fine-grained factual parsing’ necessary to determine

that the evidence presented to the factfinder was in

5

See, e.g., Johnson, 592 F.3d at 755 (“In this situation, 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.”); Wright, 835 F.2d at 1249 n.1;

Lovern, 590 F.3d at 1107; Cosby v. Jones, 682 F.2d 1373, 1383

(11th Cir. 1982); Valle, 807 F.3d at 515.

13

‘equipoise.’ ” Id. at 301 (quotations omitted). But five

of the fourteen judges joined the decision only and declined to join the opinion abrogating the rule of equipoise. Id. at 300 n.**.

Similarly, though the Ninth Circuit, too, initially

followed the rule of equipoise, that court sitting en

banc rejected the rule in United States v. Nevils, 598

F.3d 1158 (9th Cir. 2010). In Nevils, the court recited

the two-step inquiry required in Jackson v. Virginia:

First, a reviewing court must consider the

evidence presented at trial in the light most

favorable to the prosecution. Jackson, 443 U.S.

at 319, 99 S. Ct. 2781. . . . Second, after viewing the evidence in the light most favorable to

the prosecution, the reviewing court must determine whether this evidence, so viewed, is

adequate to allow “any rational trier of fact

[to find] the essential elements of the crime

beyond a reasonable doubt.” Jackson, 443 U.S.

at 319, 99 S. Ct. 2781.

Nevils, 598 F.3d at 1164-65. The court went on to explain that its reason for rejecting the rule of equipoise

was that in its application, the Ninth Circuit had

strayed from Jackson’s teachings:

Notwithstanding the Supreme Court’s decision and our own precedent, we subsequently

strayed from our obligation under step one of

the Jackson standard to construe the evidence

at trial in the light most favorable to the prosecution, returning instead to an approach . . .

which indicated that a reviewing court must

14

consider whether the evidence at trial was

susceptible to an innocent interpretation, and

then determine whether a reasonable juror

“could choose the hypothesis that supports a

finding of guilt rather than hypotheses that

are consistent with innocence.” . . . By construing the evidence in favor of an innocent

explanation, and determining if such an explanation was equally or more reasonable

than the government’s incriminating explanation, [United States v.] Bishop[, 959 F.2d

820 (9th Cir. 1992),] misapplied the first step

of Jackson, which limits the reviewing court

to construing the evidence in the light most

favorable to the prosecution. See Jackson, 443

U.S. at 319, 326, 99 S. Ct. 2781. Only at the

second step of Jackson does the reviewing

court determine whether any rational juror

could hold that the evidence, construed in favor of the prosecution, establishes guilt beyond a reasonable doubt. Id. at 319, 99 S. Ct.

2781.

Nevils, 598 F.3d at 1165-66. The other courts that have

adopted the rule of equipoise apparently have not suffered the Ninth Circuit’s unique deviation from Jackson’s requirement that the evidence be construed in a

light most favorable to the prosecution. Indeed, most

of these courts include this critical component as part

of their articulation of the equipoise rule. See, e.g.,

Fernandez-Jorge, 894 F.3d at 51; Louis, 861 F.3d at

1331; Valle, 807 F.3d at 515; Johnson, 592 F.3d at 755.

Thus, in the Fifth and Ninth Circuits, appellate

courts considering orders denying Rule 29 motions

15

may consider only “whether the inferences drawn by a

jury were rational” and “whether the evidence is sufficient to establish every element of the crime,” VargasOcampo, 747 F.3d at 302, and affirm criminal convictions based solely on circumstantial evidence where,

even viewing the evidence in the light most favorable

to the prosecution, that evidence gives equal, or nearly

equal, support to theories of guilt and innocence.

Commentators have long thought Judge Prettyman’s opinion in Curley v. United States, 160 F.2d 229,

232-33 (D.C. Cir.), cert. denied, 331 U.S. 837 (1947),

embraced the rule for the D.C. Circuit. Recently, however, a panel of that court rejected the rule in dicta,

while acknowledging that “some language in our early

opinions suggests [its] endorsement.” United States v.

Shi, 991 F.3d 198, 208, 208 n.2 (D.C. Cir. 2021). Judge

Silberman disagreed on the meaning of Curley and endorsed the equipoise rule. See id. at 213 (Silberman, J.,

concurring).

The government asserted below that the Third

Circuit has rejected the rule of equipoise in United

States v. Caraballo-Rodriguez, 726 F.3d 418 (3d Cir.

2013) (en banc). But Caraballo-Rodriguez does not

even use the word “equipoise.” The court reviewed its

prior decisions applying the standard of review for sufficiency of the evidence, but exclusively in the context of

the knowledge element of controlled substance prosecutions. It believed its review in these cases was “more

akin to ad hoc second-guessing the juries’ verdicts than

exercising a review function based on sufficiency of the

evidence,” leading to inconsistent results. Id. at 425,

16

430. The Third Circuit’s tweaking of its standard of review in these sui generis cases did not signal rejection

of the rule of equipoise in all cases.

State courts likewise disagree about the proper

approach to sufficiency-of-the-evidence challenges

when the evidence, viewed in the light most favorable

to the government, is equally balanced as to guilt and

innocence. Most state courts have adopted the equipoise rule.6 But courts in Texas and New Mexico have

rejected it.7 Accordingly, a unifying decision from this

Court is needed to reconcile the conflicting views of

courts around the country on the application of the

rule of equipoise.

6

Tatum v. State, 63 Ala. 147, 150 (1879); State v. Ruiz, 1998

WL 436557, at *3 (Ariz. Ct. App. Aug. 4, 1998); State v. Schweitzer, 18 A. 787, 788-89 (Conn. 1889); Harris v. United States, 125

A.3d 704, 709 (D.C. Cir. 2015); Reid v. State, 212 Ga. App. 787,

789 (1994), overruled on other grounds by Maddox v. State, 322

Ga. App. 811 (2013); Commonwealth v. Goss, 428 S.W.3d 619, 626

(Ky. 2014); Taylor v. State, 346 Md. 452, 458 (1997); Commonwealth v. Croft, 345 Mass. 143, 145 (1962); Cotton v. State, 144 So.

3d 137, 145-46 (Miss. 2014); State v. May, 689 S.W.2d 732, 736

(Mo. Ct. App. 1985); Day v. State, 303 P.3d 291, 298 (Okla. Crim.

App. 2013); In re J.B., 189 A.3d 390, 409 (Pa. 2018); Haskins v.

Commonwealth, 44 Va. App. 1, 9 (2004).

7

Mackey v. State, 2002 WL 31521379, at *3 (Tex. App. Nov.

14, 2002) (rejecting rule of equipoise and citing cases); State v.

Sutphin, 107 N.M. 126 (1988) (same).

17

II.

The question of whether courts should apply the “rule of equipoise” in evaluating

claims of legally insufficient evidence in

entirely circumstantial criminal cases is

exceptionally important.

As set forth in Jackson v. Virginia, 443 U.S. 307

(1979), “the relevant question [in evaluating the sufficiency of the evidence to support a jury’s guilty verdict in a criminal case] is 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 reasonable

doubt.” Id. at 319. The “rule of equipoise” holds that

in a purely circumstantial evidence case, after viewing the evidence in the light most favorable to the

prosecution, if “the evidence . . . gives equal, or nearly

equal circumstantial support to a theory of guilt and

a theory of innocence,” a trial court must direct a judgment of acquittal, and an appellate court must reverse a conviction. See App. 16 (quoting Caseer, 399

F.3d at 840). This is because, with the evidence in a

state of equipoise, “a reasonable jury must necessarily

entertain a reasonable doubt.” Id. (emphasis in original). Charges cannot be proven by “piling inference

upon inference.” Ingram v. United States, 360 U.S.

672, 680 (1959) (citation omitted). Thus, the rule effectuates the constitutional command that a conviction cannot stand where, “after viewing the evidence

in the light most favorable to the prosecution, [no] rational trier of fact could have found the essential

18

elements of the crime beyond a reasonable doubt.”

Jackson, 443 U.S. at 319.

This facet of Due Process is fundamental to American criminal justice. “It is a prime instrument for reducing the risk of convictions resting on factual error.

The standard provides concrete substance for the presumption of innocence—that bedrock ‘axiomatic and

elementary’ principle whose ‘enforcement lies at the

foundation of the administration of our criminal law.’ ”

In re Winship, 397 U.S. 358, 372 (1970). Justice Harlan,

concurring, emphasized: “[T]he requirement of proof

beyond a reasonable doubt in a criminal case [i]s bottomed on a fundamental value determination of our

society that it is far worse to convict an innocent man

than to let a guilty man go free.” Id.

The Fourth Circuit acknowledged that it has neither adopted nor rejected the rule of equipoise. App. 18.

But seven circuits have adopted it, see n.4, supra, and

application of the rule would mandate reversal of petitioner’s conviction. The existence of such a disparity,

where a defendant can be found guilty or acquitted

based on the application of the rule or lack thereof,

warrants this Court’s intervention.

The Tenth Circuit’s decision in United States v.

Lovern, 590 F.3d 1095 (10th Cir. 2009), exemplifies the

important role the rule of equipoise plays in guarding

against convictions based on speculative and conjectural inferences. Then-Judge Gorsuch applied the

rule to test the evidence against co-defendant Barron

on charges of narcotics distribution by filling bogus

19

prescriptions. “[T]he strongest piece of evidence supporting the government’s theory of the case” was an

“instant message conversation” between Barron, a

computer technician at Red Mesa Pharmacy, and

Heredia, the principal of a website that referred customers to Red Mesa. Lovern, 590 F.3d at 1097-98, 1106.

According to dissenting Judge O’Brien, the instant

message conversation allowed a jury to conclude that

Barron knew “the pharmacy’s drug operations were

illegal” and “occurred without a legitimate medical

purpose.” Id. at 1111. But now-Justice Gorsuch opined

that these text messages could “at best, . . . leave[ ] a

reasonable fact-finder with a number of equally reasonable inferences about what Mr. Barron might have

thought was illicit.” Id. at 1107. Reversing, Justice

Gorsuch concluded 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.

Significantly, while endorsing and applying the

rule of equipoise, these courts reject any special standard of review for circumstantial evidence cases and

hold that such evidence “need not ‘exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt.’ ”

United States v. Cabezas-Monano, 949 F.3d 567, 595

n.27 (11th Cir. 2020); see United States v. Tillmon, 954

F.3d 628, 640 (4th Cir. 2019). This Court long ago rejected any such special standard of review. Jackson,

403 U.S. at 326 (citing Holland v. United States, 348

20

U.S. 121, 140 (1954)). It presents no impediment to

adopting the rule of equipoise.

The rule of equipoise has made five recent appearances in this Court. See United States v. Simon, 12

F.4th 1 (1st Cir. 2021), cert. denied sub nom. Kapoor v.

United States, 142 S. Ct. 2811 (2022); United States v.

Gaines, 815 F. App’x 709 (4th Cir. 2020), cert. denied,

141 S. Ct. 1371 (2021); United States v. Henning, 785

F. App’x 430 (9th Cir. 2019), cert. denied, 141 S. Ct. 819

(2020); United States v. Hoffman, 901 F.3d 523 (5th

Cir. 2018), cert. denied, 139 S. Ct. 2615 (2019); United

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

denied, 574 U.S. 864 (2014). Although knowing that the

majority of federal circuit courts of appeals adhere to

the rule, this Court has declined to repudiate it.

The petition for writ of certiorari in Hoffman v.

United States sought review of the question: “Whether

a federal court must grant a motion for judgment of

acquittal when, construing the evidence in the light

most favorable to the government, evidence of guilt

and innocence is evenly balanced?” Petition for Writ of

Certiorari at i, Hoffman, 139 S. Ct. 2615 (No. 18-1049).

Filing one of three amici briefs in support, fourteen

distinguished retired judges who “collectively presided

over hundreds of federal criminal trials,” urged the

Court to take review “and upon review affirm the validity of the rule.” Brief of Retired Federal Judges as

Amici Curiae in Support of Petitioners at 12, Hoffman,

21

139 S. Ct. 2615 (No. 18-1049).8 The retired judges

pointed out that in Jackson v. Virginia, the Court virtually adopted the rule of equipoise. Id. at 8. They

further demonstrated that the rule of equipoise is supported by Jackson’s imperative that the judge “ensure

that the jury ‘rationally appl[ies]’ the reasonable doubt

standard to the evidence. Id. at 317.” Id. at 7. For this

reason, the judges posited that the rule “is essential in

effectuating the constitutional division of labor between judge and jury. The equipoise rule gives judges

meaningful authority to police the validity of guilty

verdicts while leaving a wide margin to the jury; it does

not usurp the jury’s role.” Id. at 8.

The retired judges further highlighted that

“[a]nalysis of circumstantial evidence implicates an

‘intellectual process’ requiring ‘lawyer-like scrutiny’

such that, in a circumstantial evidence case, the ‘ultimate determination of guilt is based . . . on inferences

from the evidence,’ ” a determination that judges are

particularly well-suited for and experienced in making. Id. at 9. “[B]y focusing on the midpoint in the

evidence—i.e., the point where the circumstantial evidence gives rise to equal or nearly equal support to a

theory of guilt or a theory of innocence—the equipoise

rule merely requires judges to engage in a mode of

8

The other persuasive amici briefs were filed by nine distinguished law professors, Brief of Criminal Law Professors as Amicus Curiae, Hoffman, 139 S. Ct. 2615 (No. 18-1049), and the

40,000-member-strong National Association of Criminal Defense

Lawyers. Brief of NACDL as Amicus Curiae, Hoffman, 139 S. Ct.

2615 (No. 18-1049).

22

evidentiary assessment with which they are already

intimately familiar.” Id.

The Court denied review in Hoffman v. United

States, 139 S. Ct. 2615 (2019) (Mem.), perhaps persuaded by the Solicitor General’s contention that the

case was “an unsuitable vehicle for resolving th[e] disagreement” among the circuits over application of the

equipoise rule. Brief for the United States in Opposition at 11, Hoffman, 139 S. Ct. 2615 (No. 18-1049). But

in the instant case, where the resolution of Stavrakis’

sufficiency of the evidence arguments, when the evidence is properly considered, see Argument III, infra,

turns on the application of the rule, this Court should

mandate its application in the Fourth Circuit and

the other federal courts of appeals to protect a defendant’s right to due process as set forth in Jackson v. Virginia.

The rule of equipoise plays a vital role in effectuating the Fifth Amendment right to Due Process by

minimizing the risk of convicting innocent persons.

Seven circuits have adopted it for this reason. The issue is one of exceptional importance that should be

considered by this Court.

III. This case presents an opportune vehicle

to resolve the circuit split over the applicability of the rule of equipoise.

The Fourth Circuit acknowledged the well-settled

de novo standard of review for Stavrakis’ challenges to

the sufficiency of the evidence. App. 14. Yet throughout

23

its opinion, it repeatedly relied upon the district court’s

ruling denying Stavrakis’ motion for judgment of acquittal. The panel cited it more than thirty times, characterizing it as “thorough and carefully reasoned” and

“a comprehensive and well-reasoned opinion.” App. 3,

10. It repeatedly recited the district court’s conclusion

that the evidence, while wholly circumstantial, was

“substantial” and “compelling.” App. 12, 14, 18. This

does not reflect the independent review of the evidence

demanded by the de novo standard, much less the application of the rule of equipoise adopted by at least

seven other circuits.

The facts and inferences especially mattered here.

As the panel observed while “slic[ing] the onion into

thin layers,” App. 12, to distinguish the two cases

that reversed business arson convictions upon which

Stavrakis placed primary reliance, App. 16,9 “sufficiency cases are necessarily highly fact specific. . . .” Id.

The panel had to decide whether the jury impermissibly arrived at its verdict relying on “pure speculation,”

App. 15, or “piling inference upon inference,” Ingram v.

United States, 360 U.S. 672, 680 (1959), or, instead, by

relying upon reasonable inferences from the circumstantial evidence that would allow it to reasonably

“f[ind] the essential elements of the crime[s] beyond

reasonable doubt.” Jackson, 443 U.S. at 319.

9

United States v. Makriannis, 774 F.2d 1164 (6th Cir. 1985)

(unpublished); United States v. Yoakam, 116 F.3d 1346 (10th Cir.

1997).

24

This case is opportune to resolve the sharp conflict

among the federal circuit courts of appeals regarding

application of the rule of equipoise because here, petitioner asserted and maintained his innocence throughout trial. The government presented no direct evidence

to contradict this assertion. There was no evidence

that petitioner set the fire. Not even the government

suggested this. Indeed, there was no evidence of who

set the fire. There was no evidence of which of three

entryways, the front lobby door, the front warehouse

door, or the roof hatch, the arsonist used to enter.

Instead, to prove guilt, the government had to rely

entirely on inferences from the evidence at trial. If

these inferences gave circumstantial support to a

theory of guilt, they gave equal, or stronger, circumstantial support to a theory of innocence. To reach a

guilty verdict, the jury had to speculate, inter alia, that:

(1) petitioner had a financial motive to destroy his

decades long-standing family business (in the face of

evidence that equally showed improving business conditions and a history of liquidating personal assets and

using creative financing to bridge temporary business

shortfalls); (2) petitioner taped the front lobby door to

facilitate clandestine entry of an arsonist (in the face

of undisputed evidence that the front doors were

chronically defective and required an immediate fix on

the night of the arson to engage the other security systems that safeguarded Adcors’ facility); (3) the arsonist

entered through the front lobby doors (in the face of

evidence that equally, or more strongly, suggested entry through the front warehouse door or unsecured roof

25

hatch); (4) petitioner’s general manager Hyatt obstructed justice by deleting video files of the arsonist’s

entry before turning them over to law enforcement,

and then destroyed the hard drive back-up (though he

was never charged with being an accomplice or involved in the arson in any way); and (5) petitioner was

willing to risk loss of human life and financial demise

by having someone torch his family business. But neither the jury, the district court, nor the Fourth Circuit

could rely on such inference piling to overcome the equipoise rule’s mandate that, after viewing the evidence

in the light most favorable to the prosecution (which

petitioner has done), a judgment of acquittal must be

entered if the evidence provides equal, or nearly equal,

circumstantial support to a theory of guilt and a theory

of innocence. See Ingram, 360 U.S. at 680 (impermissible to pile inference upon inference). Under these circumstances, “[no] rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319.

The panel dismissed as utterly “unsupported” the

equally plausible theory that the fire was set for revenge by one of two disgruntled employees. App. 11.

But the evidence no more proved that petitioner was a

principal and accomplice to the arson and concomitant

fraud, than it proved some other unidentified person

or persons, unconnected to Stavrakis, set fire to Adcor.

Even viewing the wholly circumstantial case against

petitioner in a light most favorable to the government,

the rule of equipoise mandated an acquittal as a matter of law; instead, a man who continues to claim his

26

innocence is serving a fifteen-year sentence, based

solely on circumstantial evidence arguably proving

that he had a motive and created an opportunity for an

unidentified arsonist to set the fire—hardly evidence

upon which a “rational trier of fact could find guilt

beyond a reasonable doubt.” Jackson, 443 U.S. at 317

(emphasis added).

---------------------------------♦---------------------------------

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

HOWARD SREBNICK

Counsel of Record

BENJAMIN S. WAXMAN

BLACK SREBNICK

201 S. Biscayne Boulevard

Suite 1300

Miami, Florida 33131

Telephone: (305) 371-6421

Email: HSrebnick@RoyBlack.com

Email: BWaxman@RoyBlack.com

Counsel for Petitioner