Opposition Brief — Jobe v. United States (No. 96-2050)

Court, U.S.

ILED

\e JUL 15 1997

No. 96-2050

ClERK

In the ic Sama “|

Supreme Court of the United States

October Term, 1996

Stanley Pruet Jobe,

Petitioner,

vs.

United States of America,

Respondent.

Petition for Writ of Certiorari

to the United States Court of Appeais

for the Fifth Circuit

Brief in Support of

Petition for Writ of Certiorari

S. Michael McColloch Cynthia Hollingsworth

McCoLL & MCCOLLOCH Stacy R. Obenhaus*

1175 Thanksgiving Tower GARDERE & WYNNE, LLP

1601 Elm Street 3000 Thanksgiving Tower

Dallas, Texas 75201 Dallas, Texas 75201

(214) 979-0999 (214) 999-3000

Attorneys for Respondent

Fernando Novoa

*Counsel of Record

STATEMENT OF THE CASE

Respondent Fernando Novoa supports the petition for

writ of certiorari filed by Stanley Jobe.

Novoa, a codefendant of Stanley Jobe in this case, was

convicted of one count of conspiracy and one count of bank

fraud. Novoa also filed a timely motion for new trial on the

grounds that communications to one of the jurors prejudiced

the jury, and the district court denied the motion.

ARGUMENT

As Jobe points out, the Fifth Circuit’s decision to not

hold a hearing with regard to the juror communication in this

case conflicts with this Court’s decision in Remmer y. United

States, 347 U.S. 227 (1954). In a criminal case, any private

communication with a juror about a matter pending before the

jury is deemed presumptively prejudicial if not made pursuant

to rules or to instructions of the court with full knowledge of

the parties. Jd. at 229. If such communication occurs, the

government has the burden to prove, upon notice and hearing,

that the communication was harmless. Jd. In the subsequent

case of Smith v. Phillips, 455 U.S. 209 (1982), this Court

held that if the defendant offers evidence of juror partiality,

the defendant is entitled to a hearing and an opportunity to

prove the juror’s actual bias.

The government does not dispute that the juror in this

case received extrinsic evidence of a prior conviction for

similar conduct by codefendant Billie Mac Jobe. Nor does

the government dispute that the person who gave the juror the

information had told the juror he would not be surprised that

something improper had occurred in this case. This raised a

presumption of prejudice.

Without the benefit of a hearing, the court of appeals

decided that "the information relayed to [the juror] did not

taint his deliberations." The district court reached similar

conclusions without the benefit of additional testimony from

the juror or others involved in the improper communication.

Under Remmer neither court had the right to render such a

decision without affording Novoa or Jobe a hearing.

As Jobe points out, the courts of appeals disagree on

whether Smith v. Phillips shifted to the defendant the burden

of showing prejudice. Compare United States v. Pennell, 737

F.2d 521 (6th Cir. 1984); United States v. Walker, 1 F.3d 423

(6th Cir. 1993) with United States v. Littlefield, 752 F.2d

1429 (9th Cir. 1985); United States v. Butler, 822 F.2d 1191

(D.C. Cir. 1987). See also Stockton v. Virginia, 852 F.2d

740, 744 (4th Cir. 1988). And, as Jobe points out, the Fifth

Circuit itself appears confused in this regard, with the present

panel apparently declining to follow past precedent in this

area. Nevertheless, the apparent intercircuit conflict alone

merits resolution by this court.

CONCLUSION

Novoa thus suggests that the court grant the petition,

vacate the court of appeals’ judgment, and remand the case to

the court of appeals for reconsideration in light of Remmer

and Smith. Alternatively, Novoa suggests that the Court grant

the petition and give Novoa an opportunity to file a brief on

the merits in support of the relief Jobe requests.

Respectfully submitted,

S. Michael McColloch Cynthia Hollingsworth

McCOLL & MCCOLLOCH Stacy R. Obenhaus*

1175 Thanksgiving Tower GARDERE & WYNNE, LLP

1601 Elm Street 3000 Thanksgiving Tower

Dallas, Texas 75201 Dallas, Texas 75201

\ (214) 979-0999 (214) 999-3000

Attorneys for Respondent

Fernando Novoa

*Counsel of Record