Wapnick v. United States

• Decision Date: 18 January 1966
• Docket Number: Docket 29949.,No. 181,181
• Citation: 355 F.2d 136
• Parties: Harold WAPNICK, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

355 F.2d 136 (1966)

Harold WAPNICK, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 181, Docket 29949.

United States Court of Appeals Second Circuit.

Argued November 16, 1965.

Decided January 18, 1966.

Frances Kahn, New York City, for petitioner-appellant.

Harold Wapnick, pro se.

Leonard J. Theberge, Asst. U. S. Atty., Brooklyn, N. Y. (Joseph P. Hoey, U. S. Atty. for Eastern District of New York, Brooklyn, N. Y., on the brief), for respondent-appellee.

Before MEDINA, WATERMAN and FRIENDLY, Circuit Judges.

MEDINA, Circuit Judge.

Harold Wapnick was convicted with others on December 7, 1961 of the crimes of transporting or causing to be transported in interstate commerce stolen motor vehicles and conspiracy, in violation of 18 U.S.C., Sections 2312, 2 and 371. On direct appeal to this Court the judgment was affirmed in all respects. United States v. Wapnick, 2 Cir., 1963, 315 F.2d 96, cert. denied, 374 U.S. 829, 83 S.Ct. 1868, 10 L.Ed.2d 1052. As the last of a considerable variety of attempts to set aside or vacate the judgment of conviction, Wapnick initiated the collateral attack now under consideration, alleging that his constitutional rights had been infringed. Judge Bartels denied the application in an unreported opinion, and this appeal followed. The application was made under 28 U.S.C., Section 2255 and the hearing consisted of legal argument only, Wapnick's petition for a writ of habeas corpus ad testificandum having properly been denied.

The gist of Wapnick's contention is that his conviction on the 16 substantive counts of the indictment, on which he was given concurrent sentences separate from the consecutive sentence imposed for his conviction on the conspiracy count, cannot stand because 18 U.S.C., Section 2(b) which had previously read "Whoever causes an act to be done, which if directly performed by him would be an offense against the United States, is also a principal and punishable as such" was amended in 1951 to read "Whoever wilfully causes * * *"; that the case was submitted to the jury without reference to "wilfully," an omission not noticed by any of the lawyers, or by the trial judge; and that this alleged error permeated the entire proceeding from indictment to conviction. Wapnick's assertion of constitutional infirmity is based not only on the above contention. He also claims due process of law was lacking because his own lawyer failed to notice the amendment introducing the word "wilfully," and that his failure to raise the point demonstrates his incompetency, made the trial a "mockery of justice," and deprived appellant of the effective assistance of counsel.

Except for the fact that the trial judge did read to the jury the entire Section 2 as it read before the 1951 amendment,¹ there is no substance whatever to appellant's contention. As far as we are advised, even before the 1951 amendment the definition of a "principal" as one who "aids, abets, counsels, commands, induces or procures" the commission of a federal crime or "causes" an act to be done that would be a federal crime "if directly done by him or another" has uniformly been interpreted as meaning one who did these acts "wilfully" or "knowingly." In any event, immediately after reading Section 2 to the jury, Judge Bartels plainly stated this interpretation in the following words:

"Thus anyone who does not commit the offense himself but who aids or abets an offender or causes an act to be done, which if directly performed by him would be an offense against the United States, is a principal. In other words, anyone who shares in the criminal intent of the principal and is wilfully associated with the venture in a way that by his action he wilfully participates or assists in bringing about the ultimate result is, under this section, in the same position as a principal."

Thus the case was tried and submitted to the jury on the theory that Wapnick must be acquitted if he did the acts charged against him innocently. Whatever error the trial judge may have made in reading the unamended statute in his charge was, therefore, cured by his explanation of its meaning to the jury.

But this is not all. The very counsel who is charged with incompetency argued the direct appeal to this Court on the theory that knowing participation must be established. Thus, Point III of his brief, referring to the same 16 substantive counts now under consideration, asserted that there was no evidence to warrant a finding that Wapnick "transported or caused to be transported in interstate commerce" the stolen automobiles referred to in Counts One through Sixteen, "nor, as a matter of law did the evidence warrant a finding that the appellant knowingly aided or abetted in the commission of the alleged crime." (Emphasis added.)

A scrutiny of the evidence adduced at the trial by the prosecution demonstrates beyond any shadow of doubt that the jury had ample justification for a finding that what Wapnick did he did "wilfully," "knowingly" and with the deliberate intention of masterminding a gang of thieves in an extensive "hot car" racket. It was he who originated the scheme, and he was a financial backer. It was he who procured and furnished the thieves who actually stole the cars, and it was he who devised the elaborate plan of concealment by the purchase of wrecks, the removal of the serial number identification plates and the affixing of such plates to cars purposely stolen because they were of the same year and make as the wrecks. The trial judge instructed the jury that there could be no conviction...