THE SUPREME COURT CERT PETITION Why the billing amount is justified for the cert petition: 1. An introductory practical notation: because it was in the best interests of the client and her case, the time and resources normally devoted to the rehearing process in the Fifth Circuit were shifted entirely to filing a Supreme Court petition. This decision was made based on Rubio’s posture in the case, and what counsel believed in his professional opinion was the best course of action for the client.
Further, given the Fifth Circuit’s decision to decision to cancel oral argument, and its decision to affirm the case in a summary manner contained within its nine-page opinion, counsel decided after careful review of Rubio’s posture that efforts were better focused on filing a Supreme Court petition than continuing with rehearing process. Accordingly, the time, effort, and resources normally devoted to the rehearing and en banc rehearing process were channeled into advancing a more compelling Supreme Court petition.
2. A serious effort was made to advance a truly certworthy question. The efforts undertaken by counsel here were not merely a mirror image of the prior arguments raised in the lower courts. Rather, counsel undertook extensive efforts to merge the lower court arguments and issues into a much broader and compelling issue that would grab the Supreme Court’s attention. The final petition incorporated in more than 84 different cases from across the nation, and the research and briefing efforts were indeed no small endeavor. But it was the right thing to do. And consistent with the guidance provided by consistent practitioners before the Supreme Court—this was the correct approach to undertake.
3. The certworthy question as to an appellate court’s proper role when reviewing lower court decisions on sufficiency grounds, required enormous efforts to properly research and brief. The broader question targeted by the petition was: what is a appellate court’s proper role in review of lower court decisions or jury verdicts, to ensure the evidence satisfied the due process standards of proof beyond a reasonable doubt, under a theory of guilty by association. The answer is not as easy to drill down on as one might think. The Fifth Circuit struggled to get its footing on the correct pathway forward on this as recent as 2014.
And the Supreme Court has likewise taken up the broader issue on numerous occasions throughout our history. See In re Winship, 397 U. S. 358 (1970); Thompson v. City of Louisville, 362 U. S. 199, 2016 (1960); Jackson v. Virginia, 443 U. S. 307 (1979). 4. The structure of the cert petition and why it mattered. Part 1: The broader question of supreme importance and a deeper focus on the Fifth Circuit’s application of Jackson as highlighted by Rubio’s case. The initial section focused on how and why the Fifth Circuit’s opinion violated the Supreme Court’s precedent in Jackson v. Virginia, 443 U. S. 307 (1979).
Rubio’s case highlighted a broad, fundamental, and reoccurring due process violation applied by the Fifth Circuit in its analysis of sufficiency of the evidence arguments in criminal cases. A deeper focus and analysis on the Fifth Circuit’s jurisprudence in this area was required. The analysis focused on the past history of how the Fifth Circuit approached sufficiency arguments, and how its approach had shifted to the present (with Rubio’s case as the newest example). See footnote 3 and 4, and the enormous research required (footnote 4 as roughly 36 or more cases firming up a consistent pattern of Jackson’s application in sufficiency cases).
By extension, additional time was necessary to detail how and why the Fifth Circuit had shifted in its application of Jackson over time. After United States v. Vargas-Ocampo, 747 F. 3d 299, 301 (5th Cir. 2014), the Fifth Circuit adopted a near summary affirmance in sufficiency of the evidence cases, which has eroded the legal standard of proof beyond a reasonable doubt required on each element of an offense to support a conviction. Thompson v. City of Louisville, 362 U. S. 199, 201 (1960); In re Winship, 397 U. S. 358 (1970).
Rubio’s petition reinforced the incredible volume of Fifth Circuit cases highlighting a near systematic approach to sufficiency arguments. It took a great deal of time to sort through and confirm this claim with the roughly 50 plus cited cases from 2014 forward that trained along this argument in support of my contention. Backed by this evidence, the petition argued that this complete deference without inquiry if any evidence existed was the exact standard in the Supreme Court’s prior opinion in Thompson that Jackson overruled. Part 2: The circuit split – a detailed examination of Jackson’s application across the nation.
The second part of the petition focused on the circuit split concerning the application of Jackson in sufficiency of the evidence challenges. This portion of the petition was critical, and it included a five-part subsection of detailed analysis. This section also demanded an enormous amount of time to show the Court that a real issue was in play here that merited the Court’s consideration. The efforts were absolutely necessary. The reason for this level of detail was to demonstrate to the Supreme Court law clerk’s and Justices considering this application how deep this split ran and how significant it was.
The detail of a deep circuit split across the nation was an extremely important aspect of a certworthy petition. Indeed, countless routine practitioners reinforced this critical component in cert petitions as necessary to succeed. The five subsections highlighted below include: Subsection 1: This initial section detailed Jackson’s application across the Ninth, Third, and the Fifth Circuits. Subsection 2: This section contrasted subsection 1 by detailing the circuit split of Jackson’s application among the Sixth, Second, and D. C. Circuits. Subsection 3: This section turned to a deeper examination of Rubio’s case.
The section focused on how and why the Fifth Circuit and others, incorrectly rely on the outdated Thompson no-evidence standard. In doing so, the standard applied in similar cases was entirely subjective, with a shifting goal line of the level of speculation necessary to conclude that association is sufficient to establish criminal culpability. There has been a complete erosion of objectivity. Indeed, deference is always given to a jury’s determination in cases, but that deference is not absolute and requires some role by the reviewing court.
Subsection 4: This section focused on the heightened requirement of proving guilt beyond a reasonable doubt, even when the defendant was aware that criminal conduct was afoot. Rubio’s case never had this general knowledge issue. That was the point of this section. Further, the aim of this brief section was to reinforce that even when a defendant knew that some crime might be occurring, a simple general but not specific knowledge level was insufficient to secure a conviction for aiding and abetting. Tracing through many difference cases within the ous circuits to reinforce this subsection took considerable time.
But reinforcing the point it made as applied to Rubio was necessary. Subsection 5: The last subsection surveyed a contrasting area of hidden compartment cases to distinguish Rubio’s unique case. This section highlighted cases where an additional factor was established in the case that connect the defendant to the illegal nature of the activity involved, in addition to the hidden drugs within a vehicle. The point of the legal research necessary to bolster this subsection was to show that again, there had to be something more that tied Rubio, and countless others in like cases, to the illegal nature of the offense.
Part 3: Examination of why the question presented was of national importance. The next major section of the brief focused on the significant implications of Rubio’s case. 1. It explained why the case had nationwide implications on the public, state governments in all fifty states, and the federal government. 2. It reinforced through statistics that drug prosecutions of this nature in which this issue arises account for more cases than any other type in the federal courts. 3. There is a financial implication involved.
Each year, federal and state governments devote billions of dollars yearly to handle these types of cases. 4. The implications arising in Rubio’s case go well beyond drug prosecutions, and it spill over into cases involving associationbased theories of criminal culpability. Those cases include similar issues arising in national security cases for instance. Part 4: Justification for why Rubio’s case was the ideal vehicle to resolve the issue of national importance. The final section of the petition reinforced why Rubio’s case was an ideal vehicle for resolving an important and reoccurring issue within the federal courts.
Rubio’s case presented a reoccurring issue in every circuit across the United States. In addition, the record in Rubio’s case was ideal for the Supreme Court’s consideration. This is because of the government’s prosecution theory in the case throw everything possible against the wall and if anything sticks than it is sufficient to convict. In the end, the reasonable compensation requested for the petition here was justified by the extraordinary efforts required to assemble a serious and certworthy petition.
ADDITIONAL CJA 27 STATEMENT FACTORS Any extraordinary pressure of time or other factors under which services were rendered Based on Rubio’s medical condition and age, the implications of this sentence remain nothing short of a life sentence. Furthermore, the stressed involved when considering the foregoing during this case added significant pressure. Nature of counsel’s practice and injury thereto The briefing periods before this Court and the Supreme Court petition took up significant time counsel would have otherwise devoted to other cases.
As a result, this case had a mate impact on counsel’s legal practice as a solo practitioner with limited resources. Other circumstances relevant and material to a determination of a fair and reasonable fee Because of the complex factual nature of the case, for each of the briefing periods for this case, regardless of the diligent notes counsel had taken (including time that was not captured in the billing), the confusing nature of the case, and the way the government glossed over the factual issues in its response briefings, required counsel to go back and study major portions of the case transcript.
This was not done to increase the billing amount, but because it truly was required in this case based on the density of the factual record, the testimony, and numerous exhibits involved. CONCLUSION For the reasons above, the compensation requested is both fair and justified in light of the unique challenges associated with representing Rubio throughout this case.
