United States v. Alfred Kowalski

crotch, By BARNETT: THE MISS WITNESS: Under short, the crotch would be too where Q. you took care of this When piece. set you marking, pre- actually did have you pare up Okay. the altera- a ticket to take THE What do COURT: tions ^[156] department? A. Yes, ma’am. call it when leg, on the outside you take out the fullness leg? Taper. THE WITNESS: you Q. you after would do What Taper, ticket? is what filled out that THE COURT:' marking peg. you Did call to the alterations Take them A. tapers? mark upstairs. department long generally you Taking Q. Yes, And how sir. THE WITNESS: you go back tapering could to wait until out and it. the flare get it? right. All THE COURT: depend on the season. It would A. Transcript p. 155-57. busy, too sometimes If we weren’t through couple of in a work would busy, days, some- we were but when week, much as it would be times know, school, you and sales back like that. alterations, did Q. As far as require you sold items

most America, STATES UNITED marking? kind of some Plaintiff-Appellee, had to on children A. Most slacks v. shortened, yes, ma’am. KOWALSKI, Defendant- Alfred Appellant. Q. ? about the suits What 74-1171. No. sleeves, Well, we usually the A. Appeals, Court United States those. have to alter would Circuit. Seventh you ever mark Did COURT: THE 3,1974. Argued June boys’ suits any pegs in the men’s and 19, Aug. 1974. Decided de- alterations taken to be out peg partment? what a know Do Sept. Rehearing Denied 1974. men’s is in a suit? Rehearing Rehearing En Banc No. THE WITNESS: Denied Nov. By BARNETT: MISS

Q. the alterations call Would at all ?

department assistance

would be like the coat A. pants, shortening Yes, something unusual, putting ma’am. Greenberg a collar Whenever gusset or shortening in a called ^[157] there paid

to take care of that. now, Putting a what THE COURT: gusset? pair

THE WITNESS:

pants. gusset? What is

THE COURT:

204 Pell, Judge, Circuit dissented Kelly, Peoria, 111., R. William for de-

opinion. fendant-appellant. MacKay, Atty., Spring- B.

Donald U. S. field, 111., Lipkin, Max J. Asst. U. S. Atty., Peoria, 111., plaintiff-appellee. for CLARK, Justice,* Before Associate SPRECHER, and PELL and Circuit Judges. CLARK, Associate Justice. Alfred Kowalski was convicted violating Title U.S.C. § 922(a)(1) [engaging in the business manufacturing importing, appeal On his six firearms]. points: raises (1) 922(a)(1) Is uncon- Section vague indefinite; stitutionally (2) support is the evidence sufficient to verdict; (3) it error to cross-exam- regarding pending ine Kowalski state charges; (4) may prior felony convic- twenty-five years old be tions more than impeachment; (5) error used for is it proof by hearsay to allow guns allegedly sold stolen; (6) prejudicial prosecutor to one of the characterize “sniper’s gun”, as a etc.

Wayne Stebins offered to sell a rifle holding (that on a Kowalski was $100 by Stebins) Krug, loan owed to David Treasury Agent. Krug, and an- Stebins Agent Treasury other went Kowal- gun. to obtain the While house ski’s * (Retired) Supreme of tlie Court of United States Associate Justice Tom sitting by designation. Clark O.

205 typical acts, Agents truck, of those used Columbia remained a van Stebins “loitering”; “leading an such terms as into house and returned went Kowalski’s profligate life”, immoral And etc. with the which he sold alone Krug vague. properly money $125.00, it was held Ricks v. Stebins Columbia, U.S.App.D.C. paid later Thereafter 134 Kowalski. District (1968). uphold Lucas, 201, informer, We F.2d Junior Government Agents the Act involved here. to Kowalski’s house and took guns any inquired if he had of Kowalski 2. attacks the evi Kowalski “a sale. The latter said that he had for support dence as insufficient to dickering after some varmint rifle” and However, reading the verdict. price, the to over the Kowalski sold rifle transcript three sales reveals at least Krug $150.00, with ammuni- some prohibited weapons, a .225 Winches later tion thrown in. Some two weeks 16-gauge pistol rifle, and a ter .45 parties the same returned to Kowalski’s shotgun. addition, received In Kowalski target purchased house and caliber .45 gun proceeds prohibited of a fourth gauge pistol for and an old 16 $150.00 sale, a rifle. Moreover state .30-30 shotgun for $30.00. by ments agents Kowalski to the Government regularly employed Kowalski was as a at and admitted Kowalski but Compa- Transport truck driver Ruan just, like trial claimed to “That was be: ny, years age was 60 and married. wind-ing say, just bit, play it I ing a little 1973, 7, 2, From until June 1973 October got bigger it than I should have and any purchase did not sell or myself ille into trouble” other indicate any spend other nor did firearms he gal activity in under the Act. These locating time additional firearms to sell. receiving shipment of ten stolen cluded rifles, he after which tried contact question provides The statute in Krug he but could not find him and so except importer, for a licensed licensed others; trying sold them to that he was manufacturer, dealer, or licensed it gun supply; went to re-stock his that he engage “shall be unlawful ... Michigan get some importing, in the business of manufac- got good; he one and it was no and that turing dealing in firearms or ammu- ” got guns and out all the time for sale. nition. . . We hold that statute quite believe sufficient. We vague; unconstitutionally engaged Kowalski was “in the business 3. Kowalski claims that . . . . .” . prosecutor’s questions on cross-examina thereof; in violation and that there is tion if he had ever been convicted of a points. no merit in remainder of his felony years, e. were all too remote i. 1932, the eases 1937 and 1948. However vagueness claim, 1. As to the contrary. to the are See United upheld we find that Circuit has Dow, (7th v. States 1972); 457 F.2d 246 Cir. cases, Act under that attack in two v. Morefield, United States 411 United States v. 444 F.2d Zeidman, 1051 1186, 1969); (7th F.2d Cir. 1188 United (1971) Gross, and United States v. Escobedo, 14, 18-20, States v. 430 F.2d (1971). F.2d 1355 In the latter case the (7th 1970), den., Cir. cert. 402 U.S. impermissibly Act was found “not 91 S.Ct. 29 L.Ed.2d 122. vague”, Id. at 1357. Likewise three ad upheld ditional During interrogation circuits have Kane it: States, prior shiro v. United felonies, 445 F.2d 1266 to also (9th 1971); Day, Cir. United States v. asked “You have been Kowalski: (6th 1973) charged 476 F.2d 562 Cir. and United in state court in Bureau and La Wilkening, (8th States v. County”, 485 F.2d 234 Salle and the was: answer 1973). single Cir. The case cited Ko “conspiracy”. then wholly inapposite. walski is charges It involved many pending asked: “How vagrancy statute in you there, sir”, the District of whereupon objec- Agent Krug gun tion objection The court sustained that he had was made. told charges.” stolen at Granville. At trial Ko- he testified “to target he had traded .243 rifle for walski then a mistrial moved gun it at show in Princeton. He court instruct said: was denied. The jury questioning disregard question anybody “I was around if “to question implications a smaller that I it.” could trade agree guy around. we asked at have been asked me to look place, it.” “right said, The trade took criticism Assistant dissent’s Attorney. edge United However we where States —where objection people all note made no that Kowalski show—where the previous question. were.” Indeed he an- Kowalski remembered prosecutor then asked was in swered it. The 1971 but could not remember the spe- day, light of the court’s details. the month “didn’t even ask (the seller) that the cific him” his name. “He didn’t charges as and to the be stricken ask me mine.” they disregard question “the prosecutor’s the Nor was any implications it”, find we it harm- gun might comment that the per’s gun” prejudicial. be a “sni- light less, especially in of the entire rec- gun The be- ord. jury, scope fore the had a on guilt The direct evidence of over- gun” by called “a varmint Kowalski. whelming it was admitted —indeed referenced characterization is not claim- point Kowalski save for the as to wheth- ed to have to referred aas er the number of sales etc. was suffi- sniper. It was fair comment under the engaged cient to find that he in the evidence. business of in firearms. The other claims Kowalski friv- jury point found him on un- this judgment olous and the is der the court’s to which there Affirmed. objection. was no There was no indica- part gov- tion of bad faith the on PELL, Judge Indeed, previous question (dissenting).

ernment. Circuit being charged as to Kowalski in “Bu- per opinion, a recent curiam United County” already reau and LaSalle Dilts, Cir., (7th States F.2d v. 501 531 any objection. been answered without 1974), panel of this court stated: question We reiterate the should not previously compelled felt “We have asked, have been and the criticize Assistant United States posing censured it, for but in view of Attorney departing for from the overwhelming guilt evidence of record. United v. Her- [See States well as the manner and time in which nandez, (7th 486 F.2d 618 Cir. asked, we find that 1973).] history, In view of this we prejudice. there was no have the need considered for an exer- supervisory power cise of our a de- hearsay 5. The claimed nature of the prosecutorial terrent to deliberate evidence as to one of the involved Cf., United misconduct. States v. Tru- being stolen correct. It is not is true tenko, (7th 490 F.2d Cir. tracing gun that in the sale 1973). concluded, however, We have Agent received information as to the se- flagrant that since the misconduct oc- quence purchasers. However, upon us, curred before rather than in the going purchaser, to the ultimate court, judgments trial these found that was stolen. He then (At 8, not be reversed.” footnotes County contacted Putnam Sheriff omitted.) report who forwarded the official show- ing Moreover, involving was stolen. Ko- Now case we another walski admitted on cross-examination same United Attor- Assistant States my engaged what, opin- on ney in The trial in this commenced in who January 15, 1974, All evi- flagrant at 10 m. sufficiently misconduct a. ion, was submitted, arguments dence was final court we should exercise p. made, jury charged 4:30 power and the supervisory reverse a our day. on after m. same Sometime judgment earmarks of what has following p. jury m. sent the 9:00 of that miscon- trial because an unfair votes, judge: “After 10 we respectfully note Accordingly, dis- duct. a verdict. able to have not been come sent. any of of reversal of We see no chance dispute no brooks of The record later, re- hour the votes.” An on Kowalski sold fact in- turned the courtroom where He was more than one occasion. structions reread to the veniremen. however, guns, charged, with sale midnight, fifteen minutes before At guns, possession prohibited with guilty its verdict. returned of deal- the business During compact exercise ing the line in firearms. Just where justice, the conclu- administration of by a dealer between sales drawn aged 60, Kowalski, then sion of which engaged an own- the business guilty would of a which was found crime casual, engaged in a occa- er of firearms three incarceration result his draw. is a difficult sional sale years, At- the Assistant United States prescribe does not statute legal torney, experienced and veteran an determining per- when a standards engaged practitioner, in conduct “engaged in business.” Unit- son is by designedly appears to be and to me Zeidman, 444 F.2d ed v. States denigrating improper de- of the means (7th 1971). conceive I do not Cir. appointed by fense advanced Kowalski’s interpreted to that the statute should be Unfortunately, counsel. counsel his person ac- a effect that once has the preserve have not record the that quired forever aft- a firearm he should however, occasions; on these been made disposing precluded of from erwards part of the I errors on the consider the prison by sen- of a threat substantial prosecutor to have affected substantial if so. tence he does rights a of and basis therefore considering customary the for On basis reversal. Rule Fed.R.Crim.P.1 appeal on from a evidence criminal the Impeachment Proceedings light favorable to conviction most might Government, the well this court agree majority as the with the that involving ordinary affirm the case trial, and as law stood at the time the only sales of firearms two occasions. on compas- despite it now stands more the However, record the does not reflect the realistic) (and probably sionate more ordinary one in case but instead ten-year in Rule limitation reflected part prosecutor conduct on the of the 609(b) Proposed Evi- Rules of say such it was cannot dence for United District Courts States tipping factor in toward the close case Magistrates, the remoteness any event, side of our su- conviction. excluding quer- crime not a basis pervisory power should have been called prior to a ies witness about his criminal play. aspect, into The remoteness convictions. shipment Kowalski’s counsel also embarked on wliat of narcotics that he wanted to you?” apparently necessary lie trial sell line considered This first introduced despite prosecutor throughout objection pursued the tactic Kowalski’s counsel was judge. apparently and the admonition The tactic the the to demonstrate only charitably unique. just engaged big can be described defendant was in a lot of Treasury agent Krug nothing When federal talk else. minimize It did not being cross-examined, aspersions prosecutor, if asked him cast counsel agent, Kowalski hadn’t then effect told the under of which was to make Kowalski going get possessor cover, he, Kowalski, generalized “was attributes. criminal only part however, during period, of the cumula- time and exception this picture. particular of this tive of- involving fense the one his offer opened trial, prosecutor At narcotics, to obtain he has no criminal phase of Ko- of his cross-examination working record and has been and has asking him to whether walski not been in no trouble.” of a certain crime convicted been place instead at a certain time and prosecutor apparently was suffi- Kowalski, “Now, asked, have ciently impressed with Kowalski as felony?” A of a ever been convicted present law-abiding citizen general objection overruled and Ko- probation that he recommended on a “Well, responded, I don’t know walski guilty plea. Nevertheless, when the felony or not. I was whether it was accept guilty plea court declined to convicted—” being granted probation on the basis of prosecu- trial, went pursuing further But before proceeded interrogation tor on a line of cross-examination, it should be noted which I can conceive was de- fully aware signed impres- leave with the record. At a the defendant’s criminal sion that this defendant was a menace hearing prior a month more than community. trial, referring after to a state charge conspiracy deliver a controlled following pertinent portions substance sometimes referred to as transcript of evidence are noted: “speed,” which emanated from “Q. talking Do know I’m what the same transactions as the federal about, sir? indictment, stat- following: Well, ed just “A. if—I don’t know by ‘felony.’ what mean I know addition, “In defendant’s record jail days 1932 I went to for 90 indicates that since 1942 the defend- manslaughter charge on an automobile ant has not been involved or does accident.” charges against felony him. no ’35 with deadly weapon. being intoxicated. defendant deadly weapon, and ’49—one ‘ADW’means. He has had several “MR. LIPKIN: Assault with a “It is true that back “THE disposition. vagrancy CLERK: each. charged but no conviction I don’t know what charges I and in ’37 with Assault with a should —for at the ’30’sthe one say point ’47, and ’48 year? that? “A. ^[*] “Q. “A. Well— “Q. “Q. “A. “Q. jail -X- Yes, How about You were sentenced youDo And in Right. stealing I remember ^[*] remember that ? some -X- December, do copper. you remember that, ^[*] to one I went 1937? -X- he had 30 tion. three with scene of an made, except ing the dent and was fined a dollar and served auto Correction; theft, manslaughter arising months but no and in ’32 he was days on the House of Correc- disposition in the House of vagrancy charge automobile was ever charged leav- acci- battery. it? (cid:127)X- “A. That “Q. “A. Yes. “Q. “A. Yes. With What ^[*] was that charge -X- deadly weapon, ^[*] was assault charge -x- ? wasn’t ^[*] and right? “Q. gun, aWith investigation, “One further I as indicated, rifle, claim. indicates that since “A. .22 Manslaughter “Q. you guilty of ordi- found 501 F.2d at 533. And were felony. Ill.Rev.Stat., charge? narily ch. §§ (1973). However, far as 9-3 9-2 and “A. No. record, only told from the it was can be “Q. Sir? charge felony, which was a and “A. don’t think I was found apparently was then a minor. guilty. that the It is clear conviction had some- “Q. you Did have a trial ? leaving thing to do with the scene of an Yes, “A. I had a trial. accident, and far as can told from “Q. he could have been convicted the record And weren’t found plea charge guilty guilty of a lesser con- on a ? leaving the nected with scene of an acci- judge “A. The . . . let’s see. penalty dent. The for a violation of this quite I don’t I think I recall. done appears at the time to have been statute probation on that. imprison- fine not to exceed and $200 “Q. Well, you guilty found county jail in the ment year, exceed .to placed probation, and he on 95a, or both. Cahill Ill.Rev.Stat. right? 1142(1) (1931). Kowalski, Apparently Well, yes, “A. it was believe $1, equiva- fined in the who was served right. (The county jail. lent of a “Q. Now, your in connection with hearing pretrial had referred with Mr. con- conversations Barrett Cahill’s, Correction.) the House of See cerning you have testified supra, question, ch. 67. At the time in about, charged in' have been State felony defined in as an of- Illinois County. in Bureau and Court LaSalle punishable imprison- fense death or Cahill’s, penitentiary. in the su- ment conspiracy. For “A. pra, |f38 614.2 charges “Q. many How are reputation for credibili- against you Character there, sir ? ty honesty precious commodities Objection to the last was sustained seems, not be besmirched and, question de- motion for mistrial was precise by anything than clear and less jury instructed nied and “the will be proof. admissible disregard any implica- only admoni- tions of it.” This was Further, not clear whether it is only ap- given jury to the tion theft, as for auto in 1937 was conviction parent in the reference had said to which consider must disposi- “[t]he hearing no pretrial there was properly admitted copper as tion, the theft of some or for case.” candidly a admitted Kowalski to which year. convic- The 1948 troubling aspects of of the an- sentence are There being final conviction jury tion, third and paraded the the before cient crimes Again, ambiguous. the at shown, is also remoteness. de- their other than hearing prosecutor asserted cognizant pretrial the obviously not fendant was if this felony. But no conviction. there was a or was not what was permitted defendant his fact he to in was the crimes adverted three earlier testimony memory obviously hazy im- may felonies. from an have been well It is not by impeaching peach a conviction. himself to the the discussion as See charge assault was not clear whether aspects convictions of misdemeanor battery ADW. Un- supra, and Dilts, involving turpitude, or assault ADW moral course, but, were these the federal as well as the I have assumed that this being caliber, impeaching convic- not not of in the state committed other offenses were incidentally, record, indicates tions. in this re- is silent of Illinois. spect The record tried, charges charges a were exception when these state that hung jury pending resulted. the time of at in the state courts least, of other cumulative effect not for the procedures law present Illinois der engaged in Assistant the latter and misdemeanor is a former Attorney. 12-2 United States felony. ch. §§ Ill.Rev.Stat. ais (1973). 12-4 and I that assume if we Even convictions clearly three court instructed The district established approxi- was felonies, clearcut definition of last of that is no “[t]here century engaging before in the busi- quarter mately what constitutes might well trial, in firearms” and that ness of present single credibility im- was act term “means more than that determined single that learned had not The number or frequency transaction.” peached if undoubtedly simultaneously pending in charges of transactions system. weight determining court whether state in has some two counties right engaged brought person down matter the business. This pat- in num- Apparently the criminal aware of the value that and showed date presented young bers, not been shak- its man had Government of a tern witness, Wayne Stebins, who, reasons obvious while District courts first en. testifying gun transaction, a mistrial to declare as to a clear- are reluctant scrap completed testify trial. practically ly as to a transaction Jack- Here, however, I Justice made a There was think Mr. which Kowalski sale. na- testimony quoted words that “[t]he in its often no contradiction showing his son’s prejudicial assumption pawned effects had his ive Stebins instructions practicing overcome own with Kowalski to secure a loan can be lawyers $100; jury, all ... that when Stebins had been unmitigated agents approached fiction”3 know to be about the sale gun, gone apropos. Kowalski, particularly of a he had se- agents gun, it to the cured sold inclined to attribute be would given and had the entire $125 impropriety of ask- into the embarkation ing Kowalski had told him that he amount. charges pending overzeal- about owed had Stebins $100 hotly case if the contested in a ousness keep “told him to the whole amount as a I find no door it. Here warranted facts opeping supposed favor. Because I was to have requiring prosecutorial clos- been back within a week for the just ing. commenced The trial two I told him instead was weeks. So morning not indi- the record does keep the extra for his trouble.” $25 vigorous presence confronta- cate the any Further, I fail to find evidence of note counsel. tions between dealing in firearms from the business of prosecutor had the same in Dilts that loan in which Kowalski transaction of a misde- a conviction asked about buyers and in had no contact with about a meanor and selling gun. panel which his own Dilts, Stebins a witness. I cannot to be harmless. held the error agree objection no made to Since there was it and, harmless testimony, line of nor was there a event, present the be- it, proba- motion to strike the admission having presented ginning pattern of a bly standing require alone would not re- itself, my opinion there ignored However, versal. it cannot be supervi- our in the exercise of reversal picture in the overall of whether Kowal- sory-power. ski received a fair trial. gun with Ko- The transactions Other Misconduct agents in were involved walski which August September 5, The of of this the exercise occurred on 22 and might power be a closer one if it were Yet the indictment which was be- 1973. 440, 723, States, 453, 716, (1949). 3. Krulewitch v. 790 United 336 U.S. S.Ct. 93 L.Ed. Krug response question, tive to first charged en- jury that Kowalski fore replied to the second that firearm about June gaged from the business in Granville, in “was stolen a residence date of the Ste- This was 1973. Illinois, along testimony approximately thirty with transaction, hav- bins’ jury challenge firearms.” other No effort was made to ing gone in without creating there remove this evidence as a may that factor very concluded well have inference, beginning presumption, if an not a illegal with that transactions were possession recently proper- of stolen by in June. the sale Stebins ty equatable knowledge with of its II tainted character. The thought gun the fact that the was stolen argument of The final worthy closing of mention in his ar- smearing brush with the continued gument although got he somehow criminality: know general “I didn’t three number at instead of one. that of bullets kinds are the these that Now, practice. target people use purpose, I am at a as to loss what oth- it than gentlemen about more you know creating preju- er that of than manifest that these think But I don’t I do. against Kowalski, dice the fact theft practice. target are used that bullets had to do with Kowalski’s innocence or got in this three guilt We’ve charged, crime which was stolen. shows that being dealing business in fire- an ideal would be think that . possessing The arms. he said it gun what sniper’s than rather stolen nor stolen for.”4 used firearms. placed scope had been on the rifle prosecutor, possibly encouraged removed he had by after Kowalski there privilege the somewhat carte blanche gun his. When from another as to the introduction of evidence ac- by prosecutorial changed characteriza- objections, corded the lack of defense dispose weapon vermin to tion from a having gotten the evidence of theft be- to- type one directed to of the animal fore the leave the matter say humans, to it difficult I find ward agent Krug Instead, there. he recalled finger was not governmental that testify to the stand on rebuttal as to possessor of pointed as the at investigation objected which was illegal pur- weapon kept for an a lethal transcript the defense. The reflects say suppose possible to that pose. it is following: sniping that at varmints one is you Krug, recall “Q. Mr. will presents concept term that the not the previous on the examination testi- (Third Edi- International me. Webster investiga- fied that had made an defining agree appears 1966) tion, respect tion with Ex- Government’s exposed sniper fires “one who as gun scope, hibit enemy’s force.” ofmen an having been stolen. Will tell the gun the date that was sto- III len? apparently had been one Objection, your “MR. KELLY: Government’s evidence stolen was proper Honor. Without a foundation. During direct examina- Exhibit 3. I don’t think that this man has Krug agent Government tion of personal knowledge. objection, asked, without he was witness He he “MR. LIPKIN: said investi- investigation to an made whether gated it. the result and what trace the “By Lipkin: investigation. After an affirma- hastily as to evidence even Upon challenge, dis-. court could the district separately. posed dealt -will be only theft. of one recall evidence “Q. Okay, report in- “And he at the will tell us the said police vestigation you station. made ? “I then called the of Put- Sheriff capa- Yes, Bureau “A. our has County nam and he forwarded me Act, to bility, the Gun Control since report which included the Winchester give Washington go and we call —we .225.” gun, of the se-

them the model number firearm and then agent testify number of the permitted rial they manufacturer, only investigation call the will as to what case was Winchester. made what he discovered as a result pure simple thereof. This Objection, your “MR. KELLY: hearsay and over and above the lack Honor, think that calls to that. materiality relevancy hearsay part. on and a conclusion his being tried, hearsay which was its as- tell he did or I think he can what pects precluded should have its admis- he what he knows but when starts sion. This is not a matter of admissibil- ity talking— ordinary kept of records in the Objection “THE is over- COURT: course of business. As a of fact matter ruled. records, where there was a reference to “By Lipkin: Mr. g., report, e. the sheriff’s the record it- “Q. ahead. Go put self was not into evidence but May agent’s “THE answer what report COURT: of what was in the re- investigation port. he made. In addition to the rule hearsay evidence there also would be in- Washington, they re- “A. I called application volved an of the best evi- gun plied me that had been dence rule. shipped to a whole- from Winchester Owen, say suggested saler Wisconsin. It is no answer as is majority opinion upon going object con- KELLY: “MR. purchaser, agent to the ultimate presence versation outside gun found that was stolen. The hearsay. It the defendant. would be purchaser statement of remains objection Well, “THE COURT: hearsay. If the status of the firearm as sir, again, will be overruled weapon a stolen had been relevant to the ques- have to make it on don’t each issue before the court the Government objection is overruled to tion. easily brought could as a witness investigation. this man’s legal gun owner of the could who “By Lipkin: weapon have identified it as a stolen from his home. “Q. What did tell ? I do not believe that this further em- “A. That the firearm had been phasis. on the theft can be classified as shipped from Winchester to a whole- gun harmless error. The fact that the Owen, Wisconsin, saler in in turn who may have been stolen was not contro- shipped Spring Valley, the firearm to by any verted evidence. Kowalski testi- Illinois, to a dealer there. He turn acquired he fied that had it trade sold the firearm to individual an gun from someone aat fair. The fact Illinois, Standard, who turn sold had been stolen does Neubaum, the firearm to a Kelvin of negative testimony Kowalski’s as to how Granville, Illinois. acquired he had in- unless he, “I went himself, to Kelvin Neubaum’s house ferred that had done stealing. and talked to him told me If that is the inference that the intending he had had two thefts of his to leave then it house, matter, approxi- at his .attempting the first theft improper, is a also mately $7,000, by proof the second theft some- to convict of one crime what less than that. commission another. any certainly of a case fair trial Conclusion person’s liberty not a where is at stake. not that The defense asserted regard I this case as one where While guns on two no sale of there had been sufficiently the defendant received less rather than Kowalski had occasions but require trial than a fair as to a reversal engaged making not in sales trial, a new I am to reluctant fault dealing in of firearms. This business experienced judge trial in this re- showing of that the form defense took spect. It is true that the burden of con- agents whose identities the two ducting continuing a fair trial obli- ap- agents not to known Kowalski gation resting upon judge, neverthe- They appeared proached to Kowal- him. less, sponte supervision a constant sua hippie types. he reasona- to That ski bly be proper objec- prompt in the absence of impression was have could had this places only tions not unfair an burden reasonably have It not denied. could judge, primary capacity on the whose that been determined from arbiter, should be as an but could itself engaging intention of no prop- form of interference with the dealing in firearms in the business of development er of the trial. opportunity presented an with guns

but was unloading on a he owned of some unsympathetic I not am also with the couple not he did re- of fellows whom may prose- beset the frustrations goodly price he spect that attempts present cutor’s to the case of along “string” both them about would alleged an the Government crim- instruc- A tendered and narcotics. inal. The Assistant United States At- although entrapment denied tion on torney present involved in the case in question of for a there is some basis argument before court stated engage in the proclivity to crime following: of in firearms view business lawyer any- “The defendant’s can do particular defense asserted. thing works, he if it wants because got not-guilty not-guilty plea, he’s reviewing trial, In record of any verdict, and it make dif- doesn’t consummated from selection which was happened got ference what or how he delibera- to the retirement for of prosecutor, trying only it. It’s to day, I am tion in less than a full court job Kelly says, do his I’m feeling uneasy dispel that —As unable think, your prefer I overzealous. respects justice subverted in the Honor, just pretty I’m good, not over- have indicated to the extent zealous.” Whether, requires plain reversal. error to which I of the factors the absence if defense counsel does The answer is adverted, jury would have questionably improper tactics resort found the asserted defense sufficient should look the judge course, acquittal is, problematical. of so to handle the situation preserve a for the significant fair trial not whether matter is not but for the Government as defendant rather would would not have but not to resort to the well. The answer is have re- triers of fact should type same of tactics. case from smear of ceived the free egregious potentially prejudicial This, course, con- does not in sense a, prosecutor not mean that should un- duct. vigorous advocacy. and forceful dertake n referring dispatch forget not, however, He should which this trial was consummated have federal importance intended to demean the government segment functionary disposition expeditious of criminal designated Department as the Prompt disposition, however, Department cases. but as the Prosecution purchased expense not be at the Justice.

Case Details

Case Name: United States v. Alfred Kowalski

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Nov 26, 1974

Citation: 502 F.2d 203

Docket Number: 74-1171

Court Abbreviation: 7th Cir.