United States v. Lawinski

• Citation: 195 F.2d 1
• Decision Date: 18 April 1952
• Docket Number: No. 10528.,10528.
• Parties: UNITED STATES v. LAWINSKI.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

195 F.2d 1 (1952)

UNITED STATES v. LAWINSKI.

No. 10528.

United States Court of Appeals Seventh Circuit.

March 5, 1952.

Rehearing Denied April 18, 1952.

Simon Herr, Chicago, Ill., for appellant.

Otto Kerner, Jr., U. S. Atty. Daniel P. Ward, Asst. U. S. Atty, Chicago, Ill., for appellee.

Before MAJOR, Chief Judge, and DUFFY and LINDLEY, Circuit Judges.

LINDLEY, Circuit Judge.

Defendant was charged in an indictment in seven counts with the unlawful transportation in interstate commerce of seven stolen Chevrolet automobiles, knowing the same to have been stolen, in violation of Section 2312, Title 18 U.S.C. In view of a variance between the averments and the proof, Count 4 was not submitted to the jury. Upon Counts 1, 2, 3, 5, 6 and 7 the jury returned a verdict of guilty. Defendant was sentenced to five years in the custody of the Attorney General, on each of Counts 1, 2 and 3, the sentences on Counts 2 and 3 to run concurrently with the sentence imposed on Count 1; five years on Count 5, to run consecutively to the sentences imposed on Counts 1, 2 and 3; five years on Counts 6 and 7 to run concurrently with the sentence imposed on Count 5. On appeal defendant assigns as error undue limitation of his cross-examination of the government witnesses, George Coulter, Virgil Wall, Henry Dybowski and Helen Ibsen.

Though the question presented on appeal is simply stated, its determination has involved a consideration of the factual issues at the trial and necessitated an examination of the evidence. The record reflects a sordid story of the adventures of three men in a concerted criminal undertaking. Henry Dybowski, also known as Jerome Stayer, a former bartender, Virgil Wall, a mechanic, and the defendant, Edwin Lawinski, a former racing driver, after some discussion, agreed that Lawinski would steal Chevrolet automobiles in Illinois; that Wall would change the motor numbers on the cars and that Dybowski and Lawinski would procure, through forged papers, Wisconsin licenses, and then dispose of the stolen vehicles. The proceeds of sale were to be shared by the three. That thieves do fall out is demonstrated by the fact that though Wall changed the numbers on the car first stolen and instructed defendant how to do so and received his part of the proceeds of sale of that car, his partners in crime apparently did not seek his aid as to any other of the six cars involved but handled the remainder of the operation themselves. Again illustrative of the truth, Dybowski, though he cooperated with defendant in the theft, transportation and disposition of the six cars mentioned in the indictment, apparently found it possible to dispense with Lawinski's help in disposing of fourteen other cars, with the theft of which defendant was not charged, at least in this case. In short, the evidence submitted by the government tended to prove and justified the jury in finding that defendant, in association with Dybowski, alias Stayer, stole the six automobiles, changed or caused the motor numbers thereon to be changed, by misrepresentation procured Wisconsin licenses therefor and then drove them, between the dates of November 23, 1949 and June 28, 1950 to Coon Rapids, Iowa, and there sold and delivered them to George Coulter, a dealer in automobiles and implements.

Coulter testified for the government that between November 23, 1949 and ending with June 28, 1950, at his place of business in Iowa, he bought the six vehicles from defendants, Lawinski and Dybowski, receiving with each car a bill of sale and giving to the two men his check for the purchase price. The evidence of titles received purported in each instance to represent valid Wisconsin titles. He said that he later reimbursed the persons to whom he sold the cars. This, in substance, was his entire testimony. He was questioned only as to transactions mentioned in the indictment and as to the automobiles delivered to him within the period covered by the indictment, that is, between November 23, 1949 and June 28, 1950. Though on cross-examination the court extended to his counsel liberal latitude, objections to certain interrogations were sustained.¹

On cross-examination the witness was permitted to testify that he never saw either Dybowski or defendant until they approached him, together, in November, 1949, when they told him that Virgil Wall had sent them to him. He was exhaustively cross-examined as to these statements without restriction. In addition, he was permitted to testify that he got other cars from Dybowski, twenty in all, and last saw him in November 1950. Though his direct testimony covered only eight typewritten pages, his cross-examination covered twelve.

Defendant complains of the rulings in four respects. It is apparent that the question as to how many times between June 28, 1950, the last date charged in the indictment, and November, 1950, Coulter had seen Dybowski alias Stayer, was clearly beyond the scope of anything brought out in direct examination. It was wholly immaterial and irrelevant to the issues before the jury how many times Coulter saw Dybowski after the period covered by the indictment. Defendant offered no explanation as to the relevancy of the question except to intimate that it was asked in order to test the memory of the witness. The other inquiries related to the same subject matter, namely: who accompanied Dybowski on other trips to sell Coulter on occasions when Lawinski was not present. In other words, though the direct examination was confined to Coulter's purchases from defendant and Dybowski, defendant sought to bring out on cross-examination, information as to what third parties did on other occasions, not related in anywise to the charges of the indictment and wholly beyond the scope of questions asked on direct examination.

The witness Virgil Wall testified that in November, 1949, he taught defendant how to change motor numbers, that he himself changed the numbers on the car mentioned in Count 1 and that he participated in the money received from Coulter for that car. The government confined its direct examination to the transactions of Wall with the defendant. The questions on cross-examination, to which objections were sustained² did not relate to those transactions but were in essence inquiries as to whether in 1948, long prior to the first date in the indictment, the witness was engaged in the theft of automobiles. This was clearly beyond the scope of the examination in chief. The trial court appreciated the fact that perhaps defendant was attempting to impeach the credibility of the witnesses and advised counsel that he might bring out, by means of cross-examination, evidence of participation by the witness in the charges against Lawinski as a matter of impeachment and that he might also, if he could, introduce evidence of previous convictions of the witness. The court remarked that it desired to allow counsel a wide latitude but that it did not want to get into collateral transactions not related to the indictment. The witness had testified that he had been convicted of the crime of transporting stolen automobiles. The court sustained objections to questions as to whether the witness had changed motor numbers on automobiles not involved in the indictment and as to how many stolen cars he had handled. What he had done with regard to cars not involved in this indictment was wholly irrelevant. If the questions were intended for impeachment purposes, proper methods of showing additional convictions of offenses, as advised by the court, might have been employed, if defendant was not satisfied with Wall's admission of convictions. Finally defendant complains that he was deprived of an opportunity to discover why Wall had not been indicted in this case, a question wholly irrelevant to the question of guilt or innocence of the defendant. True Wall was an accomplice but a liberal latitude was permitted in his cross-examination and why he had not been indicted in this specific case was a question not affecting defendant's guilt or innocence. Indeed the record discloses no evidence that Wall participated in the unlawful transportation. Inasmuch as Wall admitted he had been found guilty of other similar offenses, we think the limitation upon the cross-examination was sufficiently liberal as to protect fully defendant's rights.

Defendant's co-actor in crime, Dybowski, upon direct examination, testified that defendant agreed to steal cars and that he, Dybowski, "would get the titles in Wisconsin"; that defendant introduced him to Wall; that the three cooperated as to the car mentioned in Count 1. Lawinski was to steal the car, Wall to change the numbers and Dybowski to get the licenses. He said that defendant took him to Madison where he applied for and got licenses for the various cars mentioned in the indictment under assumed names; that defendant and he took the stolen cars to Coon Rapids; that defendant introduced him to Coulter as Stayer, a car dealer. He told the story of each car mentioned in the indictment. He said that after the first change of numbers, Wall changed no more but that defendant did and that thereafter the two split the proceeds two ways. On cross-examination he was permitted to testify that he had never engaged in stealing cars before he talked to defendant in 1949; that he never saw Coulter prior to November, 1949; that that was his first experience with stolen cars. He then testified as to other visits to Coulter, when defendant was not with him, delivering cars on which defendant had changed the numbers, admitted that he sold a car to Coulter in July, 1950, when defendant was not with him; said that he didn't know of anyone who changed numbers except Wall and defendant; that he didn't go to Coon Rapids in early December, 1949, or sell Coulter a car on December 6, 1949; that he had pleaded guilty to this charge and others and had made statements to the F.B.I. twice, and that he expected no reward or...