No. 95-1110

In the Supreme Court of the Untied  States 

OCTOBER TERM, 1995

ARTHUR A. BLUMEYER, III, AND 
JOHN W. PECKHAM, JR., PETITIONERS

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE EIGHTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES 
IN OPPOSITION

DREW S. DAYS, III
Solicitor General

Department of Justice
Washington, D.C. 20530
(202) 514-2217

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In the Supreme Court of the United States

OCTOBER TERM, 1995    

No. 95-1110

ARTHUR A. BLUMEYER, 111, AND
JOHN W. PECKHAM, JR., PETITIONERS

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT     

MEMORANDUM FOR THE UNITED STATES
IN OPPOSITION     

Petitioners contend that the court of appeals erred
in reversing the order of the district court granting a
new trial.
1. Following a jury trial in the United States
District Court for the Eastern District of Missouri,
petitioners were convicted of wire fraud, in violation
of 18 U.S.C. 1343 (1988); mail fraud, in violation of 18
U.S.C. 1341 (Supp. V 1993); and conspiracy to commit
wire fraud and mail fraud, in violation of 18 U.S.C.
371. Petitioner Blumeyer was also convicted of multi-
ple counts of money laundering, in violation of 18
U.S.C. 1956 (1988 & Supp. V 1993).

(1)

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2

On August .30, 1994, the district court granted
petitioners' motion for a new trial on the ground of a
juror's misconduct in speaking with an outside attor-
ney during deliberations. Pet. App. 16A-35A. The
district court frost interviewed all of the jurors.
Thereafter, relying on Remmer v. United States, 347
U.S. 227 (1954), the court held that the law required it
to presume that the contact was prejudicial to peti-
tioners, and that the government had not rebutted the
presumption of prejudice that arose from the juror's
contact with the outside attorney.
The court of appeals, in a divided opinion, reversed.
Pet. App. lA-15A. The court of appeals found that
there was no evidence to support the district court's
finding of an extrinsic contact on a substantive mat-
ter in the case, either factual or legal. Accordingly,
the court concluded that petitioners were not entitled
to a presumption of prejudice based upon the jury
foreman's contact with the outside attorney; that
petitioners had failed to show actual prejudice arising
from the contact; and that even if the presumption of
prejudice arose, the government had rebutted that
presumption by proving that the contact was harm-
less beyond a reasonable doubt.
Z. Petitioners contend (Pet. 7-12) that the court
of appeals failed to follow this Court's decision in
Remmer v. United States, supra, in not applying a
presumption of prejudice to extrinsic juror miscon-
duct. Petitioners also contend (Pet. 13-17) that the
court below did not review the district court's fac-
tual findings under the abuse of discretion standard.
Whatever the merits of petitioners' contentions, they
are not presently ripe for review by this Court. The
court of appeals' decision is not a final judgment
against petitioners. After the imposition of sentence

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3

by the district court, petitioners can again take an
appeal to the court of appeals raising any issues that
  may be available to them and preserving the claims
they have raised here. If the court of appeals affirms
their convictions, petitioners will then be able to
present their present contentions to this Court, to-
gether with any other claims they may have, in a
petition for a writ of certiorari. Accordingly, review
by this Court of the court of appeals' decision would
be premature at this time.*

It is therefore respectfully submitted that the
petition for a writ of certiorari should be denied.

DREW S. DAYS, III
Solicitor General

February 1996  
  
___________________(footnotes)

* Because this case is interlocutory, we are not responding
on the merits to the questions presented by the petition. We
will file a response on the merits if the Court requests.

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