     Case: 11-41363      Document: 00512574810        Page: 1     Date Filed: 03/26/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit

                                                                                   FILED
                                     No. 11-41363                            March 26, 2014
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,
                                                Plaintiff - Appellee

v.

RUBEN VARGAS-OCAMPO,

                                                Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas


Before STEWART, Chief Judge, and JOLLY, DAVIS, JONES, SMITH,
DENNIS, CLEMENT, PRADO, OWEN, ELROD, SOUTHWICK, HAYNES,
GRAVES, and HIGGINSON, Circuit Judges. ∗ **

EDITH H. JONES, Circuit Judge, joined by STEWART, Chief Judge, and
JOLLY, DAVIS, SMITH, CLEMENT, OWEN, SOUTHWICK and
HIGGINSON, Circuit Judges:

      The court voted to rehear this case en banc on the question whether,
when examining the sufficiency of evidence supporting a criminal conviction,




      ∗
        Judge King, having taken senior status before the rehearing en banc, elected not to
participate.

      **  Judge Dennis, Judge Prado, Judge Elrod, Judge Haynes and Judge Graves concur
in the judgment only.
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                              No. 11-41363
this court should no longer refer to the “equipoise rule.” 1                   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). 2 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, 90 S. Ct. 2781, 2789
(1979) (emphasis in original). We abandon use of the “equipoise rule” and
affirm Vargas-Ocampo’s conviction.
       1. The “Equipoise Rule”
       The Jackson standard, which has been repeatedly reaffirmed by the
Supreme Court, 3 may be difficult to apply to specific cases but is theoretically
straightforward. In contrast, the “equipoise rule” is ambiguous. At one level,


       1  The petition for rehearing en banc suggested that the panel decision violated this
court’s “rule of orderliness” because it rejected binding prior circuit precedent. Of course, a
panel may determine that prior Fifth Circuit precedent is no longer binding because of
inconsistency with Supreme Court decisions. Jacobs v. Nat’l Drug Intelligence Ctr., 548 F.3d
375, 378 (5th Cir. 2008) (“It is a well-settled Fifth Circuit rule of orderliness that one panel
of our court may not overturn another panel’s decision, absent an intervening change in the
law, such as by a statutory amendment, or the Supreme Court, or our en banc court.”). Any
such issue is mooted by the vote for rehearing en banc, which vacated the panel decision.

       2  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).

       3See, e.g., Coleman v. Johnson, ___ U.S. ___, 132 S. Ct. 2060 (2012); Cavazos v. Smith,
__ U.S.___, 132 S. Ct. 2 (2011); McDaniel v. Brown, 558 U.S. 120, 130 S. Ct. 665 (2010).
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                                No. 11-41363
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 (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 (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,


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                                No. 11-41363
598 F.3d 1158, 1167 (9th Cir. 2010) (en banc). We reject no other formulations
conscientiously applying the Jackson standard except the “equipoise rule.”
       2. The Conspiracy Conviction
       Having done that, we turn to the appellant's challenge to his conviction
for conspiracy to possess marijuana with intent to distribute, in violation of
21 U.S.C. §§846, 841(a)(1) and (b)(1)(B). 4 The case was tried to a jury and the
issue of evidentiary sufficiency was preserved in the trial court.
       About 5 p.m. on July 12, 2011, United States Customs and Border
Protection Service (“CBP”) Agent Stewart Goodrich was patrolling the Rio
Grande Valley by helicopter when he observed a pickup truck leaving the Rio
Grande River, headed north, and two rafts moving south across the river
toward Mexico. Agent Goodrich could see that the rafts were occupied.
       Agent Goodrich dropped to an altitude between 150 and 200 feet and
began following the truck. Agents Goodrich and Martinez-Baco could see that
the truck’s bed liner was too small and that there was about a six-inch gap
between the walls of the truck bed and the liner. The agents could see what
they believed to be packages of narcotics in the space in between. As Agent
Goodrich circled the helicopter to the front of the truck, he saw more packages
in the passenger seat and that the driver appeared to be talking on a cell phone.
       In the meantime, the agents had contacted CBP ground units.
Agent Maibaum was on patrol in a ground unit. Shortly before receiving the
call, Agent Maibaum had observed two men sitting in vehicles approximately
one and a half miles apart. The two men remained at their respective locations
and used their push-to-talk radios each time Agent Maibaum passed them in


       4 Vargas-Ocampo was also convicted of possession with intent to deliver a controlled
substance. He received concurrent 78-month sentences of imprisonment. On appeal, he
raised one additional issue challenging the court’s aiding and abetting instruction to the jury,
but we agree with the panel decision that the district court did not abuse its discretion in this
regard.
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                                 No. 11-41363
his vehicle. He believed they were acting as scouts for drug smugglers and was
making plans to investigate when he received the call from the helicopter
agents. 5
      Agent Maibaum drove down a dirt road toward the location indicated by
the helicopter agents (an area notorious for drug smuggling) and saw Vargas-
Ocampo’s truck. Agent Maibaum began pursuing the truck and pulled to
within 10-15 feet of it. The truck began circling into an open field. Agent
Maibaum could see packages bouncing in the truck bed. Vargas-Ocampo drove
the truck approximately another one-eighth of a mile before stopping by a
fence. Vargas-Ocampo jumped the barbed-wire fence, ran through some thick
brush, and disappeared. Agent Maibaum pursued Vargas-Ocampo on foot but
fell while crossing the barbed-wire fence and briefly lost sight of his quarry.
When the helicopter agents informed Agent Maibaum that Vargas-Ocampo
had ducked into a nearby garage, Agent Maibaum found him there. Vargas-
Ocampo was holding a push-to-talk radio and a cell phone. Vargas-Ocampo’s
phones rang many times after he was apprehended.
      The agents retrieved from the truck 84 packages containing
approximately 430 kilograms of marijuana. The registered owner of the truck
was Maria Alvarez.
      This court reviews the record to determine whether, considering 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.               Jackson, 443 U.S. at 319,
99 S. Ct. at 2789. The essential elements of a drug conspiracy are (1) an
agreement by two or more persons to violate the narcotics laws; (2) a
defendant's knowledge of the agreement; and (3) his voluntary participation in



      5   The record does not show what happened to the two men Agent Maibaum observed.
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                                No. 11-41363
the agreement. United States v. Misher, 99 F.3d 664, 667 (5th Cir. 1996). The
government relies particularly on the raft’s location in the river almost exactly
when Vargas-Ocampo’s truck appeared, the large amount of marijuana found
in his truck, the proximity and actions of surveillance “scouts” for the drug
transfer, and Vargas-Ocampo’s use of a push-to-talk radio and numerous calls
received on his phones as events transpired. Appellant argues that for each
incriminating inference that could be drawn from the proof tending toward
conspiracy, there was a benign explanation. Under Jackson, the jury was
entitled to weigh this circumstantial evidence, drawing inferences for or
against Vargas-Ocampo’s knowing and voluntary participation in a conspiracy
with others. As this court has stated, “[c]ircumstances altogether inconclusive,
if separately considered, may, by their number and joint operation, especially
when corroborated by moral coincidences, be sufficient to constitute conclusive
proof.” United States v. Rodriguez-Mireles, 896 F.2d 890, 892 (5th Cir. 1990).
The jury could have rationally concluded that this appellant participated as a
link in the chain of importation and distribution. The evidence was more than
sufficient to convict Vargas-Ocampo.
      The judgment of conviction is AFFIRMED, and this court abandons any
reliance on the "equipoise rule.”




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