Petitioners Reply Brief — Hobby v. United States

No. 82-2140

wilt

—————

In The

Office - Supreme Court, U.S.

FILED

NOV 28 1963

=

ALEXANDER L. STEVAS

CLERK

SUPREME COURT OF THE UNITED STATES

October Term, 1983

WILBUR HOBBY, PETITIONER

On Petition for Writ of

Certiorari to the United

States Court of Appeals for

the Fourth Circuit

and

-—_—_— =

Daniel H. Pollitt

)

we

University of North Carolina

School of Law

Chapel Hill, N.C. 27514

(919) 962-4127

Counsel for Petitioner

TABLE OF CASES AND OTHER

Cases

Ballard v. United States,

329 U.S. 186 (1946)...

Cox v. Louisiana,

379 U.S. 559 (1965)...

Glasser v. Unitec States

(1942 ) 7 . 7 . + . oe + .

Peters v. Kiff,

407 U.S. 493 (1972)...

Raley v. Ohio,

360 U.S. 423 (1959).

Smith v. Texas,

311 U.S. 128 (1940).

AUTHORITIES

Thiel v. Southern Pacific Co.,

328 U.S. 217 (1946). .

United States v. Aimone,

715 F. 2d 822, petition for

cert. pending sub non.

United States v. Dentico and

United States v. Musto,

Nos. 83-681 and 83-690

(filed Oct. 24 and 26, 1983,

respectively) . . . + s «

United States v. Cross,

708 F. 2d 631 . . . . . .

Williams v. Florida

399 U.S. 78 (1970). ......

Page

12

Other Authorities

R. Stern and E. Gressman, Supreme Court

Practice 452 (5th Ed. 1978). ... 4

In The SUPREME COURT OF THE UNITED

STATES

October Term, 1983

No. 82-2140

WILBUR HOBBY, PETITIONER

Vv.

UNITED STATES OF AMERICA

On Petition for Writ of Certiorari to

the

United States Court of Appeals for the

Fourth Circuit

REPLY BRIEF FOR PETITIONER

and

SUGGESTION TO DEFER CONSIDERATION OF

PETITION

The Government does "not oppose

granting of the petition limited to the

third question presented". Brief for

the United States, p. 18. The

Government acknowledges that the third

question -- whether the courts below

erred in condoning the systematic

exclusion of Blacks from appointment as

foremen of federal grand juries--" is

the subject of a relatively entrenched

conflict among the circuits that would,

all other things being equal, warrant

review by this Court". Brief for the

United States, p. 15. However, the

Government's remark (Brief, p. 17 n. 10)

that "this case is not necessarily an

ideal vehicle" for resolving this

conceded conflict, merits this reply.

1. The Government is in error in

its assertion that the petition for a

writ of certiorari "was filed", or

"appears to have been filed", one day

out of time. Brief for the United

States, pp- 1, 18 at n. 10. The

Government apparently is unaware of the

circumstances of the filing, which was

accomplished in timely fashion in

accordance with Rule 33.7.

The due date for filing the

petition was June 28, 1983, the 60th day

after entry of the judgment of the

Fourth Circuit. On that day, petitioner

submitted to the Clerk of this Court 40

copies of the petition. But the Clerk

refused to accept the copies for filing

because the paper exceeded the size

prescribed by Rule 33.1(d). The Clerk

immediately returned the documents to

petitioner, indicating the rule

violation and suggesting that the

documents be refiled in proper form as

promptly as possible. Petitioner did in

fact refile 40 copies of the petition in

proper form the following day, June 29.

Rule 33.7 provides that when the

Clerk refuses to accept a document as

not in compliance with this Rule, such

asthe page-size requirement of Rule

33.1(d), "the filing, however, shall not

thereby be deemed untimely provided new

and proper copies are promptly

substituted". It also appears to be the

practice of the Clerk's Office, in Rule

33.7 situations, to stamp and record as

the filing date of the petition the date

of the substituted filing (in this case,

June 29), rather than the date of the

attempt to file in improper form (in

this case, June 28).

Thus the petition must be deemed

timely filed, pursuant to Rule 33.7.

Indeed, that has long been the practice

in this Court where a timely filing is

rejected by the Clerk because of

non-compliance with a Rule respecting

the form of the document. See R. Stern

and E. Gressman, Supreme Court Practice

452 (5th ed. 1978), commenting on the

provision in predecessor Rule 39(4) that

is identical with the timeliness

provision of present Rule 33.7.

2. The Government further suggests

this case is not an "ideal vehicle" for

resolving the conceeded conflict because

of a possible "standing" problem. Brief

for the United States, pp. 1 at n. 4, 17

at n. 10. But there is no standing

problen.

This is a federal criminal case.

Petitioner is a white male. Levi, his

co-defendant and alleged co-conspirator,

is a black male. As this Court noted in

Peters v. Kiff, 407 U.S. 493 at 501, n.

9:

"The principle of the

representative jury was first

articulated by this Court as a

requirement of equal protection, in

cases vindicating the right of a

Negro defendant to challenge the

and

systematic excision of Negroes

from his grandvpetit juries. E.

Smith v. Texas, 311 U.S. 128,

(1940). Subsequently, in the

exercise of its supervisory power

over federal courts, this Court

extended the principle, to permit

any defendant to challenge the

arbitrary exclusion from jury

service of his own or any other

class. E.g., Glasser v. United

States, U.S. 60, 83-87 (1942);

Thiel v. Southern Pacific Co., 328

U.S. 217, Oo (1946); Ballard v.

United States, 329 U.S. 166 (1946).

Finally it emerged as an aspect of

the constitutional right to jury

trial in William v. Florida, 399

U.S. 78, 100 (1970)" Cemphasis

supplied).

3. Petitioner suggests that this

Court defer action on the Petition for

Certiorari pending consideration of the

petitions in Cross and Aimone.

The Government anticipates "filing

a petition for a writ of certiorari in

United States v. Cross" (wherein the

Court of Appeals for the Eleventh

Circuit expressly disagreed with the

decision below), and notes that

"petitions are presently pending in Nos.

83-681 to review the Third Circuit's

decision in Aimone" (wherein the Third

Circuit expressly agreed with the

decision below). Brief for the United

States, p. 18, at n.°10. The Government

therefore suggests that "the Court may

prefer to reach this issue in a case

presenting no time problem". Brief for

the United States, p. 18, at n. 10. The

implication is that the Court should

deny certiorari here, and later review

the issue on the Government's petition

in Crossvén the pending petitions in

Aimone.

To this suggestion Petitioner makes

two answers. First, as demonstrated

above Petitioner has no "time problem".

Second, it makes no sense to deny

certiorari here (with the consequence

. that petitioner Hobby go to jail for 18

months) and decide the issue on a

truncated record. Petitioner suggests

that the recordg in his case, like the

records in the Cross and Aimone cases,

will enhance the knowledge available for

consideration, provide additional

insights, and thereby assist the Court

in its decision processes.

4. Petitioner disclosed a serious

conflict in the circuits concerning the

amount of preliminary proof necessary to

trigger discovery and a hearing on the

issue of selective prosecution.

Petition, pp. 25-32.

In this case, the lower courts were

in agreement with the standard of the

Eighth Circuit, that the defendant must

establish a prima facie case to warrant

a hearing on the issue of selective

prosecution. Petition, p. 29.

Similarly, the Fifth and Sixth Circuits

view the defense with "extreme

skepticism", on a "separation of powers"

theory which precludeg judicial

interference "with the free exercise of

the discretionary powers" of the

district attorney absent a strong

showing of "bad faith" and

"impermissible considerations”.

Petition, pp. 27-28.

In contrast, the First Circuit has

expressly rejected the prima facie test

and requires only that the defendant

allege facts "tending to show" that

there has been selective prosecution.

In accord are the triggering

requirements of the Second Circuit (a

"colorable basis"), the Third Circuit (a

"colorable entitlement"), and the

District of Columbia Circuit ("colorable

claim".) Petition, pp. 26-31. The

Seventh Circuit, en banc, with one

10

concurrence and four dissents, similarly

requires only that the defendant "raise

a@ reasonable doubt about the

prosecutor's purpose". Petition, p.

29.

The Government dismisses the

difference in the circuits as a

"semantic variation". Brief for the

United States, pp. 8-9. Petitioner

submits that it is a matter of substance

which requires this Court's direction

and guidance.

Respectfully submitted

rs Nats i

aes tf Peet

Daniel H.#Pollitt

University of North Carolina

School of Law

Chapel Hill, N.C. 27514

(919) 962-4127

November 22, 1983

CERTIFICATE OF SERVICE

I hereby certify that on this 23ed

day of November, 1983, three copies of

the Reply Brief for Petitioner and

Suggestion To Defer Consideration of

Petition in Hobby v. United States, No.

82-2140, were mailed postage prepaid to

the Solicitor General of the United

States at the Department of Justice,

Washington, D. C. 20530.

Canty Fotha

Daniel H. Pollitt

University of North Carolina

School of Law

Chapel Hill, N.C. 27514

(919) 962-4127

Counsel for Petitioner Hobby