# Petitioners Reply Brief — Hobby v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1235%3A04 ## Record - **Collection:** Supreme Court brief - **Document type:** Petitioners Reply Brief - **Published:** January 1, 1984 - **Citation:** 468 U.S. 339 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1235%3A04. Public record. Not legal advice.