{ "id": 2722654, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EUGENE LEWANDOWSKI, Defendant-Appellant", "name_abbreviation": "People v. Lewandowski", "decision_date": "1976-11-15", "docket_number": "No. 75-339", "first_page": "800", "last_page": "806", "citations": [ { "type": "official", "cite": "43 Ill. App. 3d 800" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "18 Ill. App. 3d 781", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2610880 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/18/0781-01" ] }, { "cite": "17 Ill. 2d 328", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5332878 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/ill-2d/17/0328-01" ] }, { "cite": "30 Ill. 2d 359", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2826177 ], "year": 1959, "opinion_index": 0, "case_paths": [ "/ill-2d/30/0359-01" ] }, { "cite": "47 Ill. 2d 70", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2903093 ], "weight": 2, "year": 1964, "pin_cites": [ { "page": "77" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/47/0070-01" ] } ], "analysis": { "cardinality": 865, "char_count": 17684, "ocr_confidence": 0.886, "pagerank": { "raw": 7.129596895503443e-08, "percentile": 0.4280454188641886 }, "sha256": "4538419ed245a76cf63db9ff54b79c4c5a627de96694a46832ac7be25aa71ac2", "simhash": "1:a9617c2593fa5aa0", "word_count": 2889 }, "last_updated": "2023-07-14T21:56:30.289259+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EUGENE LEWANDOWSKI, Defendant-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE RECHENMACHER\ndelivered the opinion of the court:\nThe defendant was charged with conspiracy to commit theft of property having a value in excess of *150 (Count 1) and with theft of property worth in excess of *150 (Counts 2 through 11). He was convicted by a jury and sentenced to serve 5 years\u2019 probation and pay a fine of *2,000.\nThe circumstances of the case are quite unusual. The defendant became employed by Lake Forest College in 1958 and was purchasing agent for the college from 1960 until 1974. He testified that his duties included making decisions as to what property should be bought or sold. One of his co-defendants, Fred Clavey, who had previously been in charge of the grounds at the college, but who left the college in 1971, testified that he visited with the defendant in March or April of 1973 at the college and during a conversation with the defendant over a cup of coffee he suggested to the defendant a plan whereby Clavey would use the Federal Surplus Property program, in which the college was participating, to make purchases on behalf of the college of property which would qualify for secondary utilization and could be resold at a profit. Clavey said he would undertake to obtain for the college a profit of at least 10% over and above the \u201cservice charge\u201d (purchase price) made by the State for such surplus property.\nAt this point it is perhaps desirable to outline briefly the practices and regulations adduced by the testimony as to the F ederal Surplus Property program. As explained by witness Dale Wilson, Director of the Office of Surplus Property (Department of Health, Education and Welfare), all government property no longer needed by the government is reported to the General Service Administration. If no use is found for the property it is reported to the Office of Surplus Property Utilization for allocation to State agencies for health, education and civil defense programs. The State agencies are then responsible for distributing the property to eligible institutions or donees within the State to be used for health, education and civil defense, eligible donees being tax exempt schools, universities and colleges, hospitals, clinics, health and civil defense centers. The State places the surplus property which has been allocated to it in various warehouses throughout the State and the donees come to the warehouse, inspect and select the property they want, sign the required documents (either at the warehouse or later) and take possession of the property. A nominal \u201cservice charge\u201d is made and apparently some institutions which have previously been qualified have identification cards and maintain an account with the particular warehouse operated by the State.\nAfter the selection is made an invoice describing the actual property selected by the donee\u2019s agent or employee at the warehouse is filled out by a warehouse employee, describing the property, which invoice shows the Illinois serial number, a general description of the property, the unit acquisition cost (original cost to the government) and the service charge. The property is then either shipped to the donee or picked up by such donee. The invoice is sent in duplicate to the donee\u2019s authorized agent who signs and returns onq copy.\nOn the back of the invoice are set forth certain regulations. Those pertinent to this decision may be summarized as follows:\n(1) That the donee certifies it is an eligible institution as defined by law and that the property requested is useable and necessary for education or health purposes in the State.\n(2) That the property will be used for the purpose for which acquired within 12 months of purchase. Property having an original acquisition cost of less than *2500 must be used for 1 year and property having an acquisition cost of over *2500 must be used for 4 years, unless otherwise permitted by the Department. During these restricted periods the property shall not be sold, leased, traded, loaned or otherwise disposed of without the prior written approval of the Department of Health, Education and Welfare. At the bottom of the reverse side of the invoice appears in large print the following:\n\u201cNotice: Prior authority must be obtained from the Department of Health, Education and Welfare before an item with an acquisition cost of *2500 or more can be cannibalized for component parts or dismantled for secondary utilization.\u201d\nThere is no definition of \u201csecondary utilization\u201d on the invoice and the meaning of this phrase became a critical question during the trial. It will be recalled that in the discussion between Clavey and the defendant, Clavey proposed that the property to be purchased from the Surplus Property warehouse be utilized for sale as \u201csecondary\u201d property (more properly referred to as secondary utilization).\nFollowing his conversation with the defendant at the college in early April, 1973, Clavey testified, he proceeded to obtain certain machinery and tools ostensibly to be used for Lake Forest College from the State warehouse. While the property was represented to the Illinois warehouse employees as being acquired for the use of Lake Forest College, secondary utilization was requested and Clavey then proceeded to sell the property to a dealer in used machinery. It appears that the dealer in question, Raco Industrial Corporation, dealt both with Clavey and with John Monahan. Clavey testified that he acted entirely on his own and that Lewandowski never knew what surplus machinery he was buying, or where and when he disposed of it, or for what price. Clavey did not sign any invoices. The invoices were made up at the State warehouse showing Lake Forest College as the purchaser and were sent to the attention of Mr. Munshower, the college business agent, or to the defendant, and the invoices were all signed by the defendant. No charges were paid by Clavey, who simply picked up the selected machinery, took it to Raco, android it.\nBoth Clavey and the defendant testified there was never any agreement between him and the defendant for a division of the proceeds of the sales; that the defendant did not know what price Clavey received for the property, or indeed, what property had been sold. The defendant testified he was never aware that Clavey had gotten more for the property than he gave the defendant. He denied that he had ever kept any of the proceeds for himself. His testimony was that he held the invoices until Clavey brought him the money for the article covered, and that he then reimbursed the college for the \u201cservice charge\u201d and deposited the remainder (the profit to the college) in a fund he had started some years prior known as the \u201cGarage Fund,\u201d a fund belonging to the college and made up primarily of donations solicited by the defendant.\nThe defendant, while admitting he had dealt with surplus property for over 10 years and had \u201conce or twice\u201d during this time, read the conditions appearing on the back of the invoice, denied he had exerted unauthorized control over any property. He said that he was under the impression he had authority to exercise the control he did, since it was his understanding that approval for \u201csecondary utilization\u201d meant that the donee could dispose of the property in question in any manner desired, including selling or destroying the property.\nIt appears from the evidence that *19,200 was paid by Raco for the surplus property it bought from Clavey and Monahan. The defendant testified that he had received (from Clavey) about *12,050. Of this he deposited about *10,000 in a general college account to repay the cost of the service charge and that he deposited the profit, approximately *2,050, in a \u201cGarage Fund\u201d account. While the college discharged the defendant before the trial started there is no evidence that the college suffered any financial loss due to the transactions described.\nThis appeal raises three issues \u2014 whether the evidence was sufficient to convict the defendant beyond a reasonable doubt; whether the verdict was the result of passion and prejudice induced by improper argument and evidence; whether the court erred in refusing to give certain of the defendant\u2019s proffered instructions.\nThe difficulty in resolving this case arises not so much from the complexities of the case itself \u2014 although the relationship between the college, the State of Illinois, the Department of Health, Education and Welfare, the vendee of the surplus property, and the defendant, doubtless offers some complexities \u2014 but rather the real difficulty is with the evidence itself. It is so full of contradictions, inferences and unresolved questions that a logical and orderly sequence of events and a fair and objective appraisal of motives and intentions is almost impossible to achieve without filling in certain gaps by our own speculation. This, of course, we cannot do since we are bound by the record before us. Nor can we believe that the jury was any more enlightened as to certain key questions than ourselves, even though it arrived at a verdict. The State, for example, chose to prosecute the case on the charge of theft and conspiracy to commit theft, a case based almost entirely on inferences from certain peculiar circumstances, in spite of the fact that the inferences derived from defendant\u2019s acts were refuted by the direct testimony of Clavey, the State\u2019s own witness and the alleged co-conspirator.\nThere was little or no testimony as to the formation or initiation of a conspiracy \u2014 from all that the testimony told us there was only an inconclusive conversation opened to inferences of a scheme to defraud but equally open to an innocent construction. We can only conclude that the State\u2019s failure to pin the conversation down to something more incriminating was due to the fact that Clavey did not choose to reveal his true intention to the defendant at the time of that conversation and therefor deliberately left the defendant in the dark as to his intentions. If this is true then we are reduced to speculation on the degree of the defendant\u2019s naivete in order to determine whether or not the jury was justified in inferring guilt from the admitted circumstances alone. Again, it would be logical to suppose that some discrepancies favorable to the prosecution would be found in the records of the college as to how and when deposits were made in its account vis-a-vis the Illinois Surplus Property account. Allegedly deposits were made in cash sums by the defendant to the college account, but the dates, allocation and number of these deposits were never brought to light. It must be assumed, however, that the records were in accord with the defendant\u2019s testimony since nothing to the contrary was established by the evidence.\nEven the interpretation of the phrase \u201csecondary utilization\u201d was unresolved although its meaning was of critical importance in determining whether the defendant knowingly exerted unauthorized control over the surplus property obtained by Clavey on defendant\u2019s authorization. If, as contended by the State and testified to by Wilson, the director of the Department of Health, Education and Welfare Surplus program, the phrase meant only that the property in question could be used for purposes other than originally manufactured for and in no event sold or otherwise disposed of during the period of restriction indicated on the back of the invoice, then the defendant\u2019s conduct in authorizing acquisition of the property in the name of the college with the intention of immediately selling it to any willing buyer, might reasonably be interpreted as aiding and abetting unauthorized control over the property. If, on the other hand, the phrase was generally accepted as giving authority to the donee to dispose of the property to donee\u2019s best advantage, whether by cannibalization, tradein or sale, then, at least so far as the defendant\u2019s state of mind was concerned, the intention to exert unauthorized control was not established since authority for \u201csecondary utilization\u201d was secured from the Department of Health, Education and Welfare on the form known as form \u201c484.\u201d Wilson\u2019s own definition of the phrase was impeached by a record of a conversation given in an official report of the Illinois Bureau of Investigation wherein Wilson explained the meaning to one of the investigators in much more liberal terms. In fact, Wilson, according to the investigator, said that permission for secondary utilization voided the restrictions (as to sale or other manner of disposal) on that piece of property. An official definition of the phrase, as set forth in HEW regulations, however, was never produced so that the proper meaning of this key phrase was left dangling like the sword of Damocles over the defendant\u2019s head.\nUndeniably, the events set in motion by the defendant\u2019s authorization to Clavey to buy property in the name of the college for immediate resale, precipitated a fraud on the Department of Health, Education and Welfare, the State of Illinois and possibly the college. His action in so doing showed inexcusably bad judgment, if nothing worse. But that it was criminal was not established by the evidence at trial beyond a reasonable doubt. Circumstantial evidence is perfectly good evidence and can certainly be a basis for a conviction. (People v. Branion (1970), 47 Ill. 2d 70; People v. Bernette (1964), 30 Ill. 2d 359; People v. Russell (1959), 17 Ill. 2d 328.) The rule has been applied in cases where the charge was aiding and abetting. In People v. Cannon (1974), 18 Ill. App. 3d 781, in confirming a conviction for unlawful use of weapons, the court said, page 786:\n* * \u00b0[T]here is no legal distinction between direct and circumstantial evidence as to the weight and effect thereof.\u2019 [Citation.] Any fact provable by direct evidence may also be proved by circumstantial evidence. In addition, upon another theory, circumstantial evidence may prove the existence of a common design to do an unlawful act and to show that the defendant assented to the commission of a crime and therefore aided and abetted.\u201d\nBut, the qualifying language of our Supreme Court in the Branion case cited above must not be overlooked either:\n\u201cTo support a conviction based on circumstantial evidence it is essential that the facts proved be not only consistent with defendant\u2019s guilt, but they must be inconsistent with any reasonable hypothesis of innocence.\u201d 47 Ill. 2d 70, 77.\nIn the case before us, due to the dearth of the evidence and the unresolved questions, a reasonable hypothesis of innocence was not rebutted. It is not inconceivable, given the casual background of the Illinois Surplus Property Administration and the uncertainty surrounding HEW requirements, that the defendant could honestly have believed he was not outside his authority as the college purchasing agent, in authorizing the sale of property to which the \u201csecondary utilization\u201d category had been applied. Had there been proof of unlawful gain to the defendant or an overt conspiracy to obtain unlawful profits, the inference flowing from the defendant\u2019s misguided acquiescence in Clavey\u2019s scheme would be greatly strengthened. But there was no such evidence adduced and Clavey positively rebutted the inference of defendant\u2019s participation in any illegal gain by testifying that he did not have any agreement with the defendant as to any personal gain to either, did not divulge his intentions to immediately \u201ccash in\u201d on the donated surplus property and that he did not share any of the profit with the defendant.\nClavey\u2019s testimony, together with the uncertainty surrounding the rules governing the disposal of property designated for \u201csecondary utilization,\u201d provide a reasonable hypothesis of defendant\u2019s innocence. We are persuaded that he was not proven guilty beyond a reasonable doubt on either the theft charges or the conspiracy charge.\nIn our view the motion for a directed verdict should have been granted. We therefore find it unnecessary to discuss the other points raised in this appeal.\nThe judgment of the circuit court of Lake County is reversed.\nJudgment reversed.\nT. J. MORAN, P. J., and SEIDENFELD, J., concur.\nIt should also be pointed out that it was stipulated that requested \u201csecondary utilization\u201d designation was approved by the United States Department of Health, Education and Welfare in each instance.\nThe defendant\u2019s actual testimony on this point was as follows:\n\u201cQ. (by Mr. Schwartz, defense attorney). Now, Mr. Lewandowski, you became familiar, I believe, with secondary utilization.\nA. Yes, I have.\nQ. What was in 1973 and is now your understanding of the meaning of that term?\nA. They explained to me all the years I have been involved with it, through Mr. Anderson and different members of the Federal Surplus and Gaspari, anything that was secondary, slashed cannibalization type of merchandise was in a sense junk. For any reason we could use the merchandise for and if we couldn\u2019t use it to dispose of it, which was my authority as presented in the purchasing manual.\nQ. And we are talking about the same Mr. Gaspari about whom the other witnesses testified was once the director of the State of Illinois Federal Surplus Property Section?\nA. Same as Mr. Gaspari, correct.\u201d", "type": "majority", "author": "Mr. JUSTICE RECHENMACHER" } ], "attorneys": [ "Berle L. Schwartz, of Highland Park, for appellant.", "William J. Scott, Attorney General, of Chicago, and Jack Hoogasian, State\u2019s Attorney, of Waukegan (Steven J. Rosenberg, James B. Zagel, and Jayne A. Carr, Assistant Attorneys General, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EUGENE LEWANDOWSKI, Defendant-Appellant.\nSecond District (2nd Division)\nNo. 75-339\nOpinion filed November 15, 1976.\nBerle L. Schwartz, of Highland Park, for appellant.\nWilliam J. Scott, Attorney General, of Chicago, and Jack Hoogasian, State\u2019s Attorney, of Waukegan (Steven J. Rosenberg, James B. Zagel, and Jayne A. Carr, Assistant Attorneys General, of counsel), for the People." }, "file_name": "0800-01", "first_page_order": 830, "last_page_order": 836 }