# Petition for Writ of Certiorari — Williams v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_0719%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1973 - **Citation:** 414 U.S. 908 ## Text een | INDEX Pact Citation to Opinion Below ....................00000- 1 ee rT FT Te ee NOD Lak 2 SD SOND: Sivessnnouaseud ee wenuedeenbe an 2 EE ich sanuseunsdheuws aaa EE A Oe AT ASEM 4 WILLIAMS, PETITIONER, v. UNITED STATES OF AMERICA, RESPONDENT material in that it appeared to be a different automobile (R., pp. 51, 58). Mrs. Winnegrad was recalled to the stand and in effect testified that the serial number information first testified to was obtained from her insurance policy. Also she fur- ther testified as to an invoice or sales memorandum which she had in her possession which invoice contained only the following digits: 164890; but did not contain the full serial number (R., pp. 58, 61). No photographs were shown to Mr. or Mrs. Winne- grad, nor did they identify any automobile from photo- graphs (R., pp. 12, 17 and 58, 62). During the course of the trial, counsel for petitioner objected to the admission of testimony of the witnesses, Plowden, Hurteau, and Oyler, which attempted to prove that an automobile described in the second count of the indictment was a stolen automobile which proof consisted of referring to tracer systems, manuals, and reports of in- surance tracing records as to stolen automobiles on man- uals and records in regard thereto. The court as this stage of the trial allowed this testimony over the objections of counsel for petitioner (R., pp. 41, 67, 73, 210). At the commencement of his instructions to the jury, the court instructed the jury to disregard this line of tes- timony and not to consider the same in its deliberations (R., pp. 353, 355). Other than the testimony and exhibits of Mrs. Winne- grad and the testimony ruled incompetent, there was no other competent testimony to identify the automobile as to which the petitioner was convicted, as a stolen automobile. After initial instructions from the Trial Judge, the jury began deliberating at approximately 1:25 o'clock P. M. (R., p. 733) and deliberated until 11:25 o’clock P. M. at which time the jury was escorted to rooms at a motel WILLIAMS, PETITIONER, v. UNITED STATES OF AMERICA, RESPONDENT 5 with instructions by the court to commence deliberating on the next morning at 8:30 o’clock A. M. During the course of deliberation, during the first afternoon and evening, the jury indicated ONE time that it was unable to agree (R., p. 381). During the morning after the jury recommenced de- liberation, the court recalled the jury to the courtroom and gave suppplemental instructions to the jury. The jury had, shortly before, sent word that they were still unable to agree for the second time (R., p. 382). Counsel for peti- tioner objected to the supplemental instructions (R., pp. B88, 393, 394). Approxmiately 12:05 o’clock P. M., the jury returned a verdict finding the petitioner guilty on the second count of the indictment and not guilty on the third count of the indictment (R., p. 395). REASONS FOR GRANTING THE WRIT In this case the United States Court of Appeals for the Fourth Cireuit ruled against the position of the peti- tioner on appeal from the United States District Court for the District of South Carolina that his conviction should have heen reversed as to the charge of unlawfully, willfully, and knowingly receiving a stolen motor vehicle which was moving in interstate commerce, in violation of Title 18, United States Code, Section 2312, which appeal challenged (1) the insufficiency or total lack of evidence as to one of the elements of the offense (2) violation of the petitioner’s rights under the Sixth Amendment to the Constitution of the United States in that hearsay evidence was admitted and lieard by the jury over the objection of petitioner’s counsel ; (3) supplemental “Allen’’ type charge to jury was coercive to jury and on further grounds that “Allen” type supplemental instructions should be abolished. Lee K : : Si} PRELONOL LISA IGT, be Adics nadan ete ae tad a OEY OP ea Drees epee ; — eer Rt eda es sar = se AIL EET EN NT SARACEN TS re ett t Be teres Wisin ihtt ulis, 6 WILLIAMS, PETITIONER, v. UNITED STATES OF AMERICA, RESPONDENT In so doing, the Court of Appeals and the District Court have decided legal issues and a substantial constitu- tional issue in a manner contrary to established principles of law and contrary to principle enunciated by this Court. Review of those decisions is necessary to correct the mani- fest miscarriage of justice which petitioner’s conviction re- presents. I A Judgment of acquittal should have been ordered as to the second count of the indictment in that there was no competent evidence to identify the automobile described in said second count of said indictment and the Government thereby failed to prove an essential element of the charge against the Defendant, to wit: that the automobile was a stolen automobile. Petitioner contends in his appeal from the conviction in the District Court that there was insufficient competent evidence to identify the automobile described in the indict- ment as the same automobile found in the possession of the defendant, petitioner herein. The United States Court of Appeals for the Fourth Circuit in a per curiam opinion finds that the motor vehicle found in defendant’s possession was sufficiently identified as a stolen motor vehicle and that the hearsay testimony concerning the identity of the vehicle was fully corrobo- rated by admissible evidence. The Court of Appeals in the instant case did not refer to any decisions upon which it based its findings. In this ease, the alleged owner gave a different serial number than the one alleged in the indictment. (R., pp. 13-15.) Also, the alleged owner testified as to a sales memo- randum which did not give the complete serial number which numbers varied from the numbers given in her ini- tial testimony and this number, being incomplete, only re- movi se Loree mec AR ll oss WT OT Sa $A SAS CARY LIPO ORL BAIL 2 OPS Naa ae a a WILLIAMS, PETITIONER, v. UNITED STATES OF AMERICA, RESPONDENT 7 flected the model and type but did not reflect any specific automobile. (R., pp. 58-61.) The alleged owner did not testify as to any unique marks or scratches but only testi- fied as to make and color. The alleged owner did not have the original registration and this was not introduced in evi- dence. The only other evidence of identification was the testi- mony of witness Ovler, Plowden, and H urteau, which testi- mony attempted to identify through “tracer” reports and manuals which testimony was subsequently ruled incom- petent by reason of being hearsay. (R., pp. 353-355.) In this case the Government relied for identification, solely, upon the introduction of evidence as to serial num- bers. No eyewitness identifications by the alleged owner was made even through photographs. To convict in this instance, the Government must prove all of the elements of the offense which are: (1) that the vehicle involved was stolen (2) that it was transported across a State line (3) that it was willfully and knowingly received by the Defendant. The Government proved by the witness, Pinckney, that the automobile was transported across a State line. However, the witness, Pinckney, did not testify that he had stolen the automobile, but, on the contrary, testified that possession had been delivered to him by one, Tatarka. Further, Pinckney testified that he had plead nola conten- dere to transporting automobiles, but no details were testi- fied to as to which automobile he had transported. (R., pp. 122-176). Eddie Tatarka was not presented by the Government and did not testify. It is undisputed that a blue Chevrolet was delivered in Sumter, South Carolina to the Petitioner. 4 ) = & : 4 r z eh Athy ie ine Prete tececres: outa Sent a at Rn aaa Rar QQpeweeeecsenes 4 let a EN sie Mitt ast MAES Sp FENN MA TTA MacMall IS GS cee ttc NaN PCI SAN MSIL PR est OMAN tia) coo Dabiicacininicones 8 WILLIAMS, PETITIONER, v. UNITED STATES OF AMERICA, RESPONDENT The owner of the automobile did not identify the auto- mobile by sight or photograph which was allegedly found in the possession of the Petitioner and in fact testified that she had not seen the automobile since stolen and had not seen it before testifying. (R., pp. 12-17 and 58-62.) The crux of the failure of the Government’s case is that it did not prove that the automobile allegedly found in the possession of the Petitioner was a stolen automobile. The automobile was not in evidence. Abraham v. United States, 15F. (2d) 911. Although the rulings of the District Court and the Court of Appeals do not cite any cases, it is apparent that both relied upon the line of cases cited by the Government in its brief which generally held that an insignificant diff- erence between indentification numbers presented and the actual numbers simply raise a question of identity, not one of sufficiency. Morandy v. United States, 170 F. (2d) 5; United States v. Wells, 443 F. (2d) 910; Johnson v. U.S., 195 F. (2d) 673. At first consideration these cases seem to be in direct conflict withe Cor v. United States, 96 F. 241, which states, inter alia, “Proof that an automobile of a well known and widely distributed type and model is stolen in one state on Saturday and that a similar car is sold and deliv- ered in an adjoining state on the following day is not sufficient evidence upon which to base a finding that the automobile stolen was the automobile sold, or a find- ing that the automobile sold was an automobile which had moved in interstate commerce. This is because the evidence, taking the view of it most favorable to the government, is not inconsistent with the hypothesis that the automobile sold was a different automobile than that which was stolen. Evidence which is con- sistent with two conflicting hypothesis tends to prove neither. (See cases cited) ; and proof of circumstances 1 eee, SPOIL AIS 2A Ne AR RED PEE ODT 2 DT - WILLIAMS, PETITIONER, v. UNITED STATES OF AMERICA, RESPONDENT 9 which, while consistent with guilt, are not inconsistent with innocence, will not support a conviction. (See cases cited.)” The Cox case, supra is further supported by the follow- ing cases: Tyler v. United States, 323 F. (2d) 711; United States v. Casey, 428 F. (2d) 229; United States v. Delay, 440 F. (2d) 566; Watkins v. United States, 409 F. (2d) 1382; United States v. Shiver, 414 F. (2d) 461. (See also, C. J. S., Volume 61A, Section 706 (3) at page 609.) Further, the rulings cited by the Government, and, ap- parently relied upon by the Court of Appeals are differen- tiated specifically in the ease of Thompson v. United States, du4 F. (2d) 207. In that case, the owner testified, as in the instant case, that the automobile was stolen from his residence. He testified as to serial numbers from document in his posses- sion, ax in the instant case. There was no evidence as to other distinquishing factors, as in the instant case. There was a difference in the serial numbers as in the instant case. In differentiating between the line of decisions cited by the Government in that case and in the instant case the Court of Appeals, in Thompson v. United States, supra, states: “The Cox case has been cited with approval and followed in a number of cases including the recent one, Tyler v. United States, 10 Cir., 1963, 323 F. (2d) 711, which held that the evidence of identification was in- sufficient on facts as strong as those of this case. “[1] This is not a case like Johnson v. United States, supra, where the automobile in the defendant’s possession was satisfactorily identified as the stolen ear alleged to have been transported in interstate commerce, even though there was a discrepancy be- tween the allegations and the testimony as to the serial numbers. It is rather a case where the issue of identifi- a REGU ETI NLA I EEL LEER LIER Sf SMR AE ON OEMS ARERR RES SAY PFA SRE HAAN TRY MS PERE EL IROL ere Be Bevcs Saietisine xSasihe POWDER ES teint ie ik ee ee MM el nO 10 WILLIAMS, PETITIONER, v. UNITED STATES OF AMERICA, RESPONDENT cation depended entirely upon identity of the serial numbers. There was no other evidence to connect the automobiles. They were of a standard make, model, body style and color. No evidence was offered to show any factor about either one of them other than its iden- tifying numbers that would distinguish it from others of the same manufacture. Bohrer was the only witness who might possibly have given satisfactory testimony of identification, and he never saw his car after it was stolen. The evidence was therefore insufficient to sup- port a conviction under either count.’’ For the foregoing reasons, the Courts below erred in overruling a motion for judgment of acquittal on the grounds of lack of evidence in that the Government never proved the automobile was stolen, a vital and material ele- ment of proof to support a conviction. II Appellant was denied the protection of the Sixth Amendment to the Constitution of the United States in that the jury was allowed by the Trial Judge to hear dam- aging hearsay testimony concerning the identity of the au- tomobile set forth in Count No. 2 of the indictment, which error was not cured by subsequent instructions by the Trial Judge that said testimony be disregarded. During the trial before the District Court, two wit- nesses were permitted to testify, contrary to objection, from the records received by telegram from the National Auto Theft Bureau, and from a similar ageney known as N.C.LC. By their testimony, it was attempted to show that the automobile in the possession of Petitioner described ‘in the Second Count of the indictment was the automobile previously stolen from Mrs. Lillian Winnegrad of New York. After admitting this testimony, the District Court a 2 a ARE ERAT CLP EG AB ARTO EE. RED Oe PR WILLIAMS, PETITIONER, v. UNITED STATES OF AMERICA, RESPONDENT 11 ruled the testimony to be hearsay and instructed the jury to disregard it, as follows: “The Court: That concludes all of the testimony in the case. Now there’s one matter that I want to call your attention from the standpoint there are two wit- nesses that have testified, one was Mr. Plowden from the National Auto Theft Bureau, | believe that was his capacity, who testified yesterday, and of course Mr. Oyler, who is the F.B.L agent who has done most of the testifying from the standpoint of the investi- gation. You will reeall that both of them in effect, and I’m not trying to quote exactly what they say, but I'll make it definite to where you'll understand what RECENT REL IN ee LLIN I'm talking about, that they in reference to the é Chevrolet in the second count of the indictment, which : allegedly was the property of Lillian Winnegrad, of New York, that’s the lady and her husband that were . here from New York, both of them testified as you = will recall. This is as to the black Chevrolet, as it has : heen referred to, which is the charge in the second ‘ count of the indictment. Both of those government wit- ~ nesses, the F.B.I. agent and Mr. Plowden in effect testified that during their investigation as to this par- © ticular Chevrolet that they by wire took up with the = National Auto Theft Bureau, which is an ageney or © clearing house so to speak of reported stolen automo- biles, and perhaps with another agency N.C.I.C., which is another similar type agency, and that they obtained ~ information from the reports as a result of their in- quiry as to this specifie black Chevrolet Impala, which is in count two, that that Chevrolet belonged to Lillian Winnegrad, who was the lady who testified here in the case. There was a motion made at the time, and due to the fact that the court was not in a position to know whether it could be connected up, it hadn’t been specif- ically ruled on by the court. ’m ruling on it now. The information that they got from those agencies to the effect that this specifie Chevrolet was the property of the lady, Lillian Winnegrad, you will disregard, because it is hearsay. It was not connected up from PRES ale py Sia te katy CA OTPS E cere Bees nimgacrs fel Ret Baceencesast: oS in es ote sk 12 WILLIAMS, PETITIONER, v. UNITED STATES OF AMERICA, RESPONDENT the standpoint of tracing it evidentiarily speaking. That is a conclusion that they have testified to, which is based on hearsay information that they obtained from these two agencies. Disregard that as evidence. I’m washing it out, you are not to consider it as evidence as to that effect. “The other parts of their evidence as to the num- bers, their identification, and the expertice as to what those numbers mean, of course, you have the right to consider. The only part I’m striking out of their testi- mony is the conclusion that they base on the hearsay report back to them, that it was the property of Lillian Winnegrad. I think that’s all now, and we’re ready for arguments.” This ultimate ruling of the District Court was correct. United States v. Shiver, 414 F. (2d) 461. In the Shiver ease, supra, evidence was admitted at trial of a police report as to the theft, the insurer’s records identified by an insurance adjuster, and a certified copy of certificate of title. The Court ruled that this evidence was inadmissible as hearsay, and against the Government’s con- tention that the same was admissible under 28 .&<. Section 1732, The Federal Business Records Act, and re- versed the conviction of Defendant and ordered a new trial. But the hearsay evidence also violated Petitioner’s right to be confronted with witnesses against him, guaran- teed by the Sixth Amendment to the Constitution of the United States. Painter v. Texas, 380 U. S. 400, 13 L. Ed. (2d) 928, 85 S. Ct. 1065; Douglas v. Alabama, 380 U. 8. 1074, 13 L. Ed. (2d) 934, 85 S. Ct. 1074. And the ruling out of this testimony came too late and petitioner submits could not expunge and eradicate the prejudice in the jurors’ minds. Bruton v. United States, 391 U.S. 123, 20 L. Ed. (2d) 476, 88 S. Ct. 1620. oe Zo Seah NS PIR AM POTTER Ri VOGT E WILLIAMS, PETITIONER, v. UNrrzu STATES OF AMERICA, RESPONDENT 13 III The supplemental ‘‘Allen Type’’ instructions were prejudicial to the Petitioner in that (1) specifically, the in- structions given in this case contained irrelevant and im- material matter which coerced the jury; (2) such type of instructions are completely unnecessary and serve no use- ful purpose, and should be abolished by this Court. The charge given as supplemental instructions by the District Court in this case had previously been approved by the United States Court of Appeals, Fourth Circuit. United States v. Sawyer, 423 F. (2d) 1335. The long dissertation on this point in the Sawyer case, f supra, is a slight indication of the variances and nuances of opinions which plague the Courts in considering the . effects of the so-called “Allen” charge. The supplemental instructions have been severely criticized in numerous jurisdictions. See United States v. Fioravanti, 412 F. (2d) 407, and cited cases. Almost every decision considering the “Allen” charge shows concern and a desire that some definite or definitive decision be made. See, Basker v. Crouse, 426 F. (2d) 531. United States v. Martinez, 446 F. (2d) 118. Also, a divergence of opinion has appeared in numer- ous cases among judges. United States v. Washington, 447 F. (2d) 308. It has been held numerous times that extensions of the charge should be discouraged. United States v. Smith, 303 F. (2d) 341; United States v. Thomas, 449 F. (2d) 1177. The Thomas case, supra, is somewhat exhaustive in its discussion and points out further the elements of doubt involved. < f g & ¥ 3 Petitioner specifically urges that the supplemental in- structions in the instant case go beyond the bounds of the original charge as approved by this Court in that the ele- Ber ane im oe aeeormns ae i a a PEE a ks a A LS TRI ENN BR SI 8 bn Biiirctorasyn.: a 14 WILLIAMS, PETITIONER, v. UNITED STATES OF AMERICA, RESPONDENT ’ Le ment of expense of trial to the Government and to the De- fendant are inserted in.the record by this charge. (R., p. 382.) It is submitted that justice should not be given a price tag and jurors should not be made to feel that they are squandering tax money or the Defendant’s money, should they not agree, and that such a charge is coercive. It is more broadly urged that the Court should con- sider the question of the “Allen” charge in this case to (1) abolish its use, or (2) limit its application and use, at least, to the recommendations of the American Bar Asso- ciation Standards. CONCLUSION Wherefore, Petitioner prays that the Petition for a Writ of Certiorari be granted. Respectfully submitted, MORRIS D. MAZURSKY, MAZURSKY & EVANS, 19 North Harvin St., Sumter, 8. C. 29150, MATTHEW J. PERRY, JENKINS, PERRY & PRIDE, 924 Hampton St., Columbia, 8S. C. 29202. \\ EAL IRLELE DEAD SEAT PORE EMER APPENDIX United States Court of Appeals FOR THE FOURTH CIRCUIT No. 72-2110 | UNITED STATES OF AMERICA, APPELLEE, versus FRANK EDWARD WILLIAMS, SR., Aprettant Appeal FROM THE Untren States District Court ror THE District or Sour CAROLINA, aT CoLUMBIA J. Roberr Martin, Jr. Cuier Jupce Argued February 8, 1973 Decided May 7, 1973 S . . | ; f E 4 BerorE WINTER anp RUSSELL, Crrever JUDGES, AND MURRAY, District Jupar, ‘ MORRIS D, MAZURSKY, h MATTHEW J. PERRY, ‘ Attorneys for Appellant. é RYAN C. SHEALY, Asst. United States Attorney, JOHN K. GRISSO, ; , United States Attorney, (on brief), Attorneys for Appellee. Bereeoress FPN LETTS atest . . | 2 eae PIN AY A. nancy ware, 1 PEAR ED aa ehiag 1 PEN ’ RNA We BO Deer oe AONE 8 PER CURIAM: In this appeal, we see no error: The motor vehicle found in defendant’s possession was sufficiently identified as a stolen motor vehicle. The hearsay testimony concern- ing the identity of the vehicle was fully corroborated by admissible evidence and the jury was unequivocally charged to disregard the hearsay. The hearsay was not so prejudicial as to render its admission into evidence incur- able error. The charge given when the jury reported ten- tative disagreement was approved by us in United States ve Sawyers, 423 BF. (2d) 1335 (4 Cir. 1970). AFFIRMED. es APPENDIX Octosrr Term, 1972 No. A-1214 FRANK EDWARD WILLIAMS, PETITIONER, versus UNITED STATES ORDER EXTENDING TIME TO FILE PETITION FOR WRIT OF CERTIORARI Upon Consiperation of the application of counsel for petitioner(s), It Is Orperep that the time for filing a petition for writ of certiorari in the above-entitled cause be, and the same is hereby, extended to and including June 21, 1973. /8/ WARREN E. BURGER, Chief Justice of the United States. Dated this 6th day of June, 1973. (15 ) --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_0719%3A1. Public record. Not legal advice.