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People v. Lewandowski





APPEAL from the Circuit Court of Lake County; the Hon. HARRY D. STROUSE, JR., Judge, presiding.


The 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' probation and pay a fine of $2,000.

The 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 "service charge" (purchase price) made by the State for such surplus property.

At this point it is perhaps desirable to outline briefly the practices and regulations adduced by the testimony as to the Federal 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 "service charge" 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.

After the selection is made an invoice describing the actual property selected by the donee's 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's authorized agent who signs and returns one copy.

On the back of the invoice are set forth certain regulations. Those pertinent to this decision may be summarized as follows:

(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.

(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:

"Notice: 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."

There is no definition of "secondary utilization" 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 "secondary" property (more properly referred to as secondary utilization).

Following 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. *fn1 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, and sold it.

Both 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 "service charge" and deposited the remainder (the profit to the college) in a fund he had started some years prior known as the "Garage Fund," a fund belonging to the college and made up primarily of donations solicited by the defendant.

The defendant, while admitting he had dealt with surplus property for over 10 years and had "once or twice" 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 "secondary utilization" meant that the donee could dispose of the property in question in any manner desired, including selling or destroying the property. *fn2

It 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 $s2,050, in a "Garage Fund" account. While the college discharged the defendant before the ...

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