United States v. Kompinski

• Decision Date: 24 February 1967
• Docket Number: No. 228,30562.,Dockets 30560,229,228
• Citation: 373 F.2d 429
• Parties: The UNITED STATES of America, Appellee, v. Robert Stanley KOMPINSKI and George Harold Evanco, Appellants.
• Court: U.S. Court of Appeals — Second Circuit

373 F.2d 429 (1967)

The UNITED STATES of America, Appellee, v. Robert Stanley KOMPINSKI and George Harold Evanco, Appellants.

Nos. 228, 229, Dockets 30560, 30562.

United States Court of Appeals Second Circuit.

Argued November 17, 1966.

Decided February 24, 1967.

Edward K. O'Shea, Buffalo, N. Y., for appellant Kompinski.

Harold J. Boreanaz, Buffalo, N. Y., for appellant Evanco.

John T. Curtin, U. S. Atty. for the Western District of New York, Buffalo, N. Y., for appellee.

Before WATERMAN, MOORE and HAYS, Circuit Judges.

MOORE, Circuit Judge:

This case involves an alleged conspiracy to steal automobiles in Illinois, transport them to and sell them in the State of New York.

The indictment consisted of: (a) 20 counts charging the appellant, Robert Stanley Kompinski (Kompinski), with receiving and concealing 20 specific automobiles moving in interstate commerce and known by him to be stolen, in violation of 18 U.S.C. § 2313; (b) 1 count charging appellant, George Harold Evanco (Evanco), with receiving and concealing one automobile in violation of 18 U.S.C. § 2313; (c) several substantive counts against defendants Burns, Jones, and Pelligrini; and (d) a conspiracy count alleging that all the defendants, plus co-conspirators O'Connell and Timm, conspired from July 14, 1964 to October 30, 1964, to steal autos in Illinois, and transport them in interstate commerce for receipt and disposal, in violation of 18 U.S.C. § 371.

The parties stipulated that all of the vehicles were stolen in and around Chicago, Illinois. Evidence was introduced concerning ten of the thefts. Jones, O'Connell and Timm stole the cars and identification tags from the doors of similar vehicles. Burns, who appears to have been the head of this branch of the operation at least, would provide the appropriate Indiana indicia of ownership, and the cars would be transported to the environs of Buffalo, New York.

All twenty of the cars were sold in Lackawanna, New York, near Buffalo, by Parkette Motors, a used car business operated by Kompinski. Kompinski's business records show that he received all of the cars shortly after they were stolen, often within one or two days after the theft.

The only connection suggested by the government between Burns and Kompinski was through George Evanco. He was acquainted with Burns, and had visited him in Chicago. There was evidence of frequent communication by telephone between Burns and Evanco during the period of the conspiracy. Evanco had also obtained one of the stolen cars mentioned in the indictment from Kompinski on the same day that Kompinski received it. Further, Jones, testifying for the government, claimed that he saw Evanco enter one of the stolen cars in front of Burns' office in Chicago and drive off, shortly before this car was delivered to Kompinski.

Before trial, defendant Jones pleaded guilty to two counts, and the remaining counts against him were severed. He appeared as a witness for the government. Defendant Pelligrini was acquitted, and the other defendants were convicted on the relevant counts. Since defendant Burns failed to perfect his appeal, only the causes of Kompinski and Evanco are before this court.

Kompinski's Appeal

1. During the course of the trial, the government called as a witness, Lee Mason Eidson, the special agent who had arrested Kompinski. After Eidson had identified Kompinski as the man that he had arrested, defense counsel moved for a preliminary hearing outside the presence of the jury. The motion was granted, the jury withdrew, and Eidson resumed his testimony, recalling a conversation he had had with Kompinski at the time of the arrest.

Edison testified that Kompinski said he had gotten the cars from a man named "George" (whose physical description matched that of the defendant George Evanco). Kompinski also admitted that he knew Evanco, but denied that it was Evanco from whom he had received the cars. Since this was a post-conspiratorial statement, and hearsay, it was inadmissible against Evanco. When Evanco's counsel and the court expressed concern over the propriety of its admission even with limiting instructions, the government withdrew its offer of proof of any statements made to Eidson by Kompinski.

However, counsel for Kompinski objected to the withdrawal of the testimony on the grounds that it was not prejudicial to Evanco, that it tended to establish Kompinski's innocence, and that Kompinski should not have to call Eidson because it shifted the burden of proof to the defendant.

The short answer to this claim is that the government is under no obligation to prove a defendant's case, or to call a witness to testify simply because the testimony may be helpful to the defense. Deaver v. United States, 81 U.S.App.D.C. 148, 155 F.2d 740, 744, cert. den., 329 U.S. 766, 67 S.Ct. 121, 91 L.Ed. 659 (1946). Furthermore, Kompinski has not shown that he was prejudiced by the government's decision not to have Eidson testify. Eidson remained available as a witness. It is unlikely that Kompinski really felt the testimony would have been helpful because he made no attempt to call Eidson to testify. This did not shift the burden of proof to the defendant. The charge to the jury on burden of proof was correct and no objection thereto was taken.

2. Kompinski claims that the evidence was insufficient to support his conviction on either the substantive counts or the conspiracy count because it failed to show that he knew that the cars were stolen or that a conspiracy existed. A review of the record reveals these contentions to be without merit.

Kompinski came into possession of the twenty stolen cars shortly after the thefts. Unless explained, this recent possession was sufficient, standing alone, to support verdicts of guilty on all the substantive counts. United States v. Lefkowitz, 284 F.2d 310, 313 (2d Cir. 1960). Kompinski relies on the Indiana title certificates, purporting to show his purchase of the cars from Indiana owners, as an explanation of his possession. The record not only discredits this explanation but provides a basis for affirmative findings that Kompinski knew that the cars were stolen and that a conspiracy existed.

At least ten of the title certificates were the fraudulent certificates allegedly prepared by Burns naming fictitious owners. The jury could have concluded that Kompinski was aware that the certificates were fraudulent from the fact that one of them showed that he purchased the car three days before it was stolen, and another that he purchased the car months before it was stolen. Further, the sales, within three months in 1964, of sixteen 1964 Buicks, Cadillacs, and Oldsmobiles coming from owners in Gary, Indiana, constituted a radical and obvious change in the course of Kompinski's business, particularly since Kompinski had purchased very few cars from out of state prior to the period of the conspiracy, and none from Indiana. This evidence was sufficient for the jury to conclude that Kompinski knew that the cars were stolen and that a conspiracy was in existence. The title certificates show that he must have purchased at least ten of the cars from a member or members of the conpiracy, evidencing his willing participation in it.

Evanco's Appeal

1. In an effort to solidify the case against Burns, and establish Evanco's membership in the conspiracy, the government introduced records of certain telephone numbers, to which Burns and Evanco had access, showing calls between the Chicago and Buffalo areas. Evanco alludes to some "unbelievable" errors relative to the admission of this evidence. However, he fails to urge any specific grounds for their inadmissibility. Our review of the record reveals no error in the admission of this proof.

2. Evanco objects, more specifically, to the admission of the testimony of Marie Judge that Evanco frequently visited the home of her next door neighbor in Buffalo, one Mary Macey. Mary Macey was referred to several times as Mrs. Macey, and a defense exhibit showed that Evanco was a married man.

Mrs. Judge's testimony had some probative value, showing that Evanco had access to the Macey phone through which he had received a call from a Chicago phone available to Burns. The trial Judge, in his discretion, felt that the probative value of the evidence outweighed the possible prejudice to Evanco which might arise through any inferences as to the nature of his relationship with Mary Macey. The record is clear that no such inferences were suggested to the jury. We find no error in the admission of Mrs. Judge's testimony.

3. It was necessary to have Mrs. Judge testify concerning Evanco's access to the Macey phone, because the government knew Mary Macey would refuse to testify on ...