Fifth Circuit Rejects the Equipoise Rule in Testing Sufficiency of Evidence (10/17/15)

The Fifth Circuit recently issued a nonprecedential opinion in United States v. Perez (5th Cir. 2015), here, affirming a preparer's convictions for aiding and assisting.

The opinion is a bit cursory, but the cryptic discussion of the "equipoise rule" caught my eye.  The Court introduces the defendant's claims in the opening paragraph as follows:

Mickey Joe Perez challenges the sufficiency of the evidence supporting his convictions for seven counts of aiding and assisting in the preparation and presentation of false and fraudulent individual income tax returns. According to Perez, none of the employees of Action E-File Services testified that he trained or encouraged anyone to commit tax fraud or that they observed him commit the crimes alleged in the counts of conviction; the testimony of taxpayers for whom he prepared returns was insufficient to show that he willingly violated federal tax laws; and the taxpayers' testimony was not credible because they received "consideration" as the Government stated it did not intend to prosecute them. Perez further asserts that the jury's decision was not rational because the evidence on the counts of conviction was materially indistinguishable from the counts on which he was acquitted. In a similar vein, he asserts that the evidence against his codefendant, Carolyn Clark, was more incriminating than any evidence presented against him, but the jury acquitted Clark on all but one count. Finally, Perez maintains that reversal of his convictions is required because of the "equipoise rule," that the evidence tends to give equal or nearly equal circumstantial support to a theory of guilt or a theory of innocence.

I have bold-faced the issue I discuss here.  The Court dismisses that claim summarily are follows:

Contrary to Perez's argument, we do not consider the jury's rejection of certain counts in determining whether the evidence is sufficient to support Perez's convictions. See United States v. Parks, 68 F.3d 860, 865 (5th Cir. 1995). Further, we have abrogated the "equipoise rule" cited by Perez. See United States v. Vargas-Ocampo, 747 F.3d 299, 301-02 (5th Cir. 2014) (en banc).

That led me to the opinion in Vargas-Ocampo, here.  Here is the relevant part of that en banc opinion (one footnote omitted):

The court voted to rehear this case en banc on the question whether, when examining the sufficiency of evidence supporting a criminal conviction, this court should no longer refer to the "equipoise rule." According to appellant, the "equipoise rule" states that the 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. Jaramillo, 42 F.3d 920, 923 (5th Cir. 1995) (citations omitted). n2 A majority of the court now holds that the "equipoise rule" is not helpful in applying the Supreme Court's standard prescribed in Jackson v. Virginia, whereby reviewing courts must affirm a conviction if, after viewing the evidence and all reasonable inferences 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. 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979) (emphasis in original). We abandon use of the "equipoise rule" and affirm Vargas-Ocampo's conviction.
   n2 See also United States v. Ortega-Reyna, 148 F.3d 540, 543 (5th Cir. 1998) (interpreting the "equipoise rule" to hold that "[w]hen the evidence is essentially in balance, a reasonable jury must necessarily entertain a reasonable doubt"). Other cases citing this "rule" in our circuit include, e.g., United States v. Penaloza-Duarte, 473 F.3d 575, 580-81 (5th Cir. 2006); United States v. Reveles, 190 F.3d 678, 686 (5th Cir. 1999); United States v. Stewart, 145 F.3d 273, 277-80 (5th Cir. 1998). 

1. The "Equipoise Rule" 

The Jackson standard, which has been repeatedly reaffirmed by the Supreme Court, may be difficult to apply to specific cases but is theoretically straightforward. In contrast, the "equipoise rule" is ambiguous. At one level, whether it applies only to cases undergirded by circumstantial evidence, as opposed to direct or testimonial evidence, is not entirely clear. Moreover, no court opinion has explained how a court determines that evidence, even when viewed most favorably to the prosecution, is "in equipoise." Is it a matter of counting inferences or of determining qualitatively whether inferences equally support a theory of guilt or innocence? 

In any event, when appellate courts are authorized to review verdicts of conviction for evidentiary "equipoise," they must do so on a cold appellate record without the benefit of the dramatic insights gained from watching the trial. The potential to usurp the jury's function in such circumstances is inescapable. Jackson's "deferential standard" of review, however, "does not permit the type of fine-grained factual parsing" necessary to determine that the evidence presented to the factfinder was in "equipoise." Compare Coleman v. Johnson,     U.S.    , 132 S. Ct. 2060, 2064, 182 L. Ed. 2d 978 (2012). Jackson also "unambiguously instructs that a reviewing court, 'faced with a record of historical facts that supports conflicting inferences must presume—even if it does not affirmatively appear in the record—that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.'" Cavazos v. Smith,     U.S.    , 132 S. Ct. 2, 6, 181 L. Ed. 2d 311 (2011) (citing Jackson, 443 U.S. at 326, 99 S. Ct. at 2781). This court's decisions citing the "equipoise rule" have done little to resolve its inherent definitional problems and its tension, in practical if not theoretical terms, with the Jackson standard. 

In abandoning use of the "equipoise rule" in this circuit, we do not render the Jackson standard toothless. On the contrary, courts remain empowered to consider, for instance, whether the inferences drawn by a jury were rational, as opposed to being speculative or insupportable, and whether the evidence is sufficient to establish every element of the crime. See United States v. Nevils, 598 F.3d 1158, 1167 (9th Cir. 2010) (en banc). We reject no other formulations conscientiously applying the Jackson standard except the "equipoise rule."

Equipoise is often used discussions of civil burden of persuasion to describe the state of uncertainty that will compel a party bearing the standard burden of persuasion (more likely than not) to lose for failure to persuade.  It is sometimes described as being a state akin to 50-50 -- the trier cannot determine whether the fact is true or not.  It is addressed to the fact-finding function of the trier (the jury in the standard model) rather than to the court.  Of course, in a criminal trial the burden of persuasion is beyond a reasonable doubt.  I suppose that what equipoise means in that context is that the evidence is consistent with guilt or innocence -- i.e., if the trier cannot find guilt beyond a reasonable doubt but also cannot find innocence beyond a reasonable doubt, it is in a state of equipoise and should find the defendant not guilty because the Government has not proved guilt beyond a reasonable doubt.  But  that point is uniquely within the province of the jury and not either the trial judge or an appellate panel.