United States v. Weinbren, 312.
| Decision Date | 07 July 1941 |
| Docket Number | No. 312.,312. |
| Citation | 121 F.2d 826 |
| Parties | UNITED STATES v. WEINBREN et al. |
| Court | U.S. Court of Appeals — Second Circuit |
Brower, Brill & Tompkins, of New York City (Bernard Tompkins and Theodore Ness, both of New York City, of counsel), for appellant Weinbren.
Edward T. Beldegreen, of New York City (D. S. Romanov, of New York City, of counsel), for appellant Rosenfeld.
Harold M. Kennedy, U. S. Atty., of Brooklyn, N. Y. (Vine H. Smith, Asst. U. S. Atty., of Brooklyn, N. Y., of counsel), for appellee.
Before L. HAND, CHASE, and FRANK, Circuit Judges.
The appellants were tried in the District Court for the Eastern District of New York on an indictment charging in one count that they concealed assets from a trustee in bankruptcy in violation of 11 U.S.C.A. § 52, sub. b(1) and in another count that they conspired so to do contrary to the provisions of 18 U.S.C.A. § 88. They were convicted on both counts and were sentenced to imprisonment on each; the sentences to run concurrently. Relying upon contentions of an insufficiency of the government's evidence to support the indictment and of errors committed during the trial, the appellants now seek a reversal of the judgment.
The evidence clearly gave the jury the right to find that appellant Weinbren had been president and appellant Rosenfeld the general manager of Exquisite Shops, Inc., a corporation which operated a retail dress store on Flatbush Ave., near Albemarle Road in Brooklyn, N. Y., from the time it was organized with a capital of $5,500 some time in February, 1937, throughout its existence and that each owned a one-half interest in it; that the business of Exquisite Shops, Inc., was not financially successful and that in November, 1937, if not before, larger purchases of merchandise on credit were made than would ordinarily have been expected then in that business; that in December, 1937, the corporation's liquid assets were insufficient to meet the current demands of creditors, and appellant Rosenfeld consulted attorneys regarding the making of an effort to arrange for a settlement with creditors. These attorneys then notified creditors of a meeting to be held at their offices on December 13, 1937. The day before the proposed meeting was spent by the appellants, with the son of appellant Weinbren, in the store of the corporation ostensibly taking an inventory and getting information desired by the attorneys for use at the meeting of creditors.
When appellant Rosenfeld went to the store on the morning of December 13th the front door could not be opened from the outside and he got in by calling the janitor, who, with the aid of a stepladder, succeeded in reaching through a transom over the door to open it from the inside. The store had been looted and Rosenfeld called it a robbery which the janitor reported to the police. The investigation by the police disclosed, according to statements appellants made to them, that merchandise of the value of about $8,000 had been taken from the store and of which no trace was ever found. The police also discovered that the rear door had been forced open from the inside and that there were marks on the inside of the transom over the front door tending to show that the "burglary" was an inside job intended as a cover for the removal otherwise of the goods. Neither of the appellants appeared at the creditors' meeting called for that day and on the following day an involuntary petition in bankruptcy was filed against Exquisite Shops, Inc. It was adjudicated a bankrupt on January 7, 1938, and on February 28, 1938, a trustee was elected and qualified. He was not shown to have had anything to do with either of these appellants who were in Miami, Fla., a few weeks after the removal of the goods from the store, where one of them had about $900 in cash and some jewelry.
Such inconsistencies and contradictions as there were in the evidence were only of the kind often present in a jury trial and, having been resolved adversely to the appellants by the jury, are of no particular moment now. Appellants do, however, point out one claimed failure in essential proof which does require notice. Neither count in the indictment covers more than (1) the concealment or (2) the conspiracy to conceal the assets of a bankrupt from the trustee. There is no allegation of any concealment of, or agreement to conceal, the assets of a bankrupt in contemplation of bankruptcy as was the situation we had in United States v. Knickerbocker Fur Coat Co., 66 F.2d 388,...
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