Opposition Brief for the United States — Webster v. United States

Iu the Supreme Court of the United States

OCTOBER TERM,#1971

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No. 71-69

RICHARD SHERWOOD WEBSTER and

- FRANK J. COLACCHIO, PETITIONERS

v.

UNITED STATES OF AMERICA

_ ON PETITION FOR A WRIT OF CERTIORARI TO

-. ‘THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES

IN OPPOSITION

‘After a jury trial in the United States District

- Court for the Middle District of North Carolina,

petitioners were convicted of conspiracy to transport,

receive, eonceal and sell stolen motor vehicles in vio-

_ lation of 18 U.S.C. 371. Petitioner Webster was. sen-

tenced to thirty-six months’ imprisonment and peti-

tioner Colicchio to fifty-four months’ “imprisonment,

both subject to ‘the parole provisions of 18 U.S.C.

ee rend eae

2

4208 (a) (2 ). The court of appeals affirmed sles cur-

iame- | | |

The evidence showed that petitioner. Colicchio was

_an independent salesman and dealer in-new and used ©

| cars in New Jersey. He had been associated with a

new car dealership for twelve years prior to May,

_ 1967, the last two years as:general manager and-

.. stockholder (Tr. 559-560). During this time, Colic-

chio frequently sold used cars to dealers in the South.

One of these dealers was petitioner Webster, who

was a used car wholesaler in North Carolina. Cre.

310, 565-566):

es Co-conspirator, Trivette, a professional shikenen.

pher, had*:dealt with ‘Webster in automobiles’ for

. about four or five years. In March 1967 Trivette

had purchased through Webster a 1965 Chevrolet

' without a title subsequently found to have been

stolen. . Trivette sold the car after driving it for sev-

eral months. “In the early summer of 1967 Webster

informed Trivette that he could get a good deal on . |

_ almost new leased cars-from a friend up North (Tr.

. . 383-386, 393-395). Trivette expressed interest in the

deal but nothing further developed until August 1967

when Webster came to Trivette’s office and telephoned.

“ petitioner Colicchio in New Jersey. Colicchio told “_

_ Trivette that he had a blue Cadillac Eldorado ready

to. go ‘and: could: have it down in a few days Ae

387). . pra .

_. + Coliechio contacted co-conspirator Austin and asked

| ‘Austin to deliver a’stolen 1967 Cadillac to a man in

1“Tr,”’ refers to the trial transcript, a copy of wide is s being

lodged with the Clerk.

~

a a pe 3

North Carolina subsequently identified as Trivette.

Colicchio wanted Austin to pick up the money for

him because he did not trust the men who were steal:

ing the cars (Tr. 111-112).

A few: days later in September or October , 1967,

Austin. went. to Wilmington, ‘North Carolina and

met the man who had driven the stolen Cadillac

down. Before the car -was delivered, Colicchio told’

Trivette by telephone not to talk to the men deliver-

ing the car, but just to go ahead and get the title

for it. Austin and the other man then delivered the

car to Trivette (Tr. 113, 127, 387-388). Trivette gave

Austin $2500 for the car and $200 for travel ex-

_penses, The men-gave Trivette a New York regis-

tration certificate for the car and_a bill of sale, which

Austin had signed with a fictitious name e Showing a

sale price of $6500 (Tr. 113-117, 388-389). The fol-

lowing evening, Austin delivered the money, less his

$500 cut, to Colicchio in New Jersey (Tr. 118).

Trivette had'asked Webster to arrange for a Buick

Electra for Trivette’s wife, and had given Webster

a $1600 down payment on the price of $2500: About

a week after the delivery of the first Cadillac, Colic-.

chio telephoned Trivette and told him that the Buick

had been sent the wrong way -and agreed to send a

Cadillac for the same price. (Tr. 390). Colicchio again

contacted Austin to pick up and deliver the Cadillac

as a replacement car to “his man Dick” (Webster) |

in North Carolina (Tr. 119, 172, 390): Austin. con-

tacted Trivette on his arrival in North Carolina the

following Sunday and subsequently Trivette went to

pick up the car, a 1967 Cadillac.four door, accom-

4

paniod by Webster. Webster told Trivette that Colic-

-chio-had said that the money was to be paid to’ Web-

ster rather th: an the men delivering the car, Trivette

paid Webster the balance of the $2500 price and gave

Austin a couple of hundred dollars for .transporta-

tion (Tr, 120-122, 391). Trivette's wife drove this

sav for several nvonths and it was then sold through

coconspirator Beamer to one Morris, The title ap-

plication and bill of sale for the car were filled out

-by co-conspirator Temples who inserted a price of |

$4850 based on the retail value of the ear (Tr. 220-

229).

After the second car had been delivered, Austin

suggested to Trivette that he could supply Trivette

with ears from the same. source for less money and

‘suggested cutting out Colicehio. Trivette agreed and.

‘thereafter Austin dealt directly with the people

New York who stole the cars and no more cars cante

through Coliechio (Tr. 121-125, 168-171, 398).

Another 1967.Cadillae convertible was’ delivered to

Trivette’s house around September 1967 and sold to

-eo-eonspirator Beamer. Webster had Trivette send a

man over to sigh a fictitious name to ‘the bill of sale

(Tr. 392-393, 475-476). Beamer had the title appli-

cation prepared by co-consiprator Temples for $300

(Tr. 214-219). |

Subsequent to the conversation about sitting out ©

Colicchio, more than ten other stolen cars were de-

livered from the New York area by Austin and others

to Trivette and Temples (Tr. 56-82, 104-107, 126-140,

175). At Webster's suggestion, Trivette arranged to

- have Temples fill out the paperwork on most of these

cars, inserting prices in the applications and bills of

sale based on the retail value, although the actual

‘prices were often several thousand dollars below re-

tail (Tr. 220-255, 399). The cars were sold in-North

Carolina through a’ group of co-conspirators includ-

ing Trivette, Temples, Beamer and Renn. This ac-

tivity continued until, about May 1968 when the FBI

investigation began.

1. Petitioners contend that the evidence: was not

sufficient to show an agreement on their part to en-

- gage in the transportation and sale of stolen automo-

biles, and that if an agreement did exist, it-pertained

only to two cars and was not part of the overall, con-

tinuous conspiracy. The sufficiency of the evidence .

_ to establish the existence of an agreement was, how-

ever, a question of fact decided against petitioners

by the jury on proper instructions, and there is no

reason to disturb that finding. The scope of the con-

spiracy must have been known hy petitioners even

though the number or identities of all the her con-

spirators may not have been known. The/jury was

‘repeatedly instructed that an — Was the gist

of the offense.

The existence of a single. conspiracy or multiple :

conspiracies is a fact question for the jury, on proper

instructions, based on the nature of the agreement. °

United States v. Varelli, 407 F.2d 735, 746 (C.A. 7):

United States v. Crosby, 294 F. 2d 928, 945 (C.A.

2), certiorari denied sub nom. Mittelman v.. U nited

States, 368 U.S. 984. Here, the jury was in-

‘structed that “proof showing different and dis-

connected smaller conspiracies will not sustain a con-

viction” (Tr. 748). ‘Petitioners requested no instruc-

rca 6

tion on separate conspiracies and there were no ob-

jections to the trial judge’s charge,

From the evidence, the jury could find one con-

tinuous conspiracy (in which some parties had larger

parts than others) to transport and sell stolen auto-

mobiles. “Blumenthal y. United States, 332 U.S. 539,

558-559; United States v. Masse, 432 F. 2d 1293

(C.A, 7), certiorari denied, 401 U.S. 938.

2. Petitioners’ contention that they were denied a

fair trial because they were limited to the joint. ex-

ereise of ten peremptory challe ‘nges is without sub-

stance. There is no suggestion in the record, and no

showing by petitioners, that the jury was not. fair

and impartial. This is the limit established by Rule

24(b),, F.R.Crim.P., and the exercise of the court’s °

discretion in refusing to grant additional peremptory

challenges was proper. United States v. Crutcher,

405 F, 2d 239, 245 (CA. 2), certiorari denied, oe

U.S. 908. |

It is therefore respect full ’ submitted that the peti-

tion for a writ-of certiorari uld be denied.

ERWIN N. GRISWOLD,

' Solicitor General.

' AvGUST, 1971.

Woou. s. sovernwenr PRINTING OFFICE: 1971 441321 108

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