Beitel v. United States

• Citation: 306 F.2d 665
• Decision Date: 25 July 1962
• Docket Number: No. 18984.,18984.
• Parties: Robert C. BEITEL and Ebbie F. Brownrigg, Appellants, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

306 F.2d 665 (1962)

Robert C. BEITEL and Ebbie F. Brownrigg, Appellants, v. UNITED STATES of America, Appellee.

No. 18984.

United States Court of Appeals Fifth Circuit.

July 25, 1962.

COPYRIGHT MATERIAL OMITTED

James Otis Herrington, San Antonio, Tex., for appellants.

K. Key Hoffman, Jr., Wayne F. Speck, Asst. U. S. Attys., Ernest Morgan, U. S. Atty., San Antonio, Tex., for appellee.

Before RIVES, BROWN and WISDOM, Circuit Judges.

RIVES, Circuit Judge.

Beitel and Brownrigg were convicted on a two-count indictment. The first count charged that they "did knowingly and unlawfully conceal assets of the value of $2,987.26 from Casey Golightly, receiver in bankruptcy of the Estate of the said ROBERT C. BEITEL, said assets belonging to said estate in bankruptcy."¹

The second count charged that Beitel and Brownrigg "combined, conspired, confederated and agreed to commit an offense against the United States, said combination, conspiracy, confederation and agreement continuing to and through August 31, 1960, the exact date of the termination being to the Grand Jurors unknown, the said offense being as follows, to-wit: to conceal assets belonging to the estate in bankruptcy of ROBERT C. BEITEL from Casey Golightly, duly appointed and qualified receiver of the estate in bankruptcy of the said ROBERT C. BEITEL, in violation of Title 18, United States Code, Section 152 * * *." Beitel was sentenced to serve five years on the substantive count and one year on the conspiracy count, the sentences to run consecutively. Brownrigg was sentenced to serve five years on both counts concurrently.

Upon appeal they make three claims of error concerning respectively: (1) the district court's failure to return property seized from Brownrigg and to suppress its use as evidence; (2) the denial of their motions to dismiss each count of the indictment; and (3) the denial of their motions for judgment of acquittal.

(1) Beitel owned and operated "Johnson's Hardware Store" located in San Antonio at 3217 South Presa Street. Brownrigg claimed to be the owner and operator of "Progress Metal Works," which did business in the rear part of the premises of "Johnson's Hardware Store" until shortly after an involuntary bankruptcy petition was filed against Beitel. "Progress Metal Works" was then moved to 714 North Alamo Street. The latter premises were searched under a warrant obtained upon an affidavit. See Rule 41, Federal Rules of Criminal Procedure, 18 U.S.C.A. The officers seized a large quantity of merchandise in boxes labeled "Johnson's Hardware," consisting of electrical supplies, lawn sprinklers, garden tools, etc., which were located under a tarpaulin in a storeroom on said premises.

Brownrigg insists that both the affidavit in support of the search warrant and the resulting seizure were insufficient because the property was not in any of the categories listed in subdivision (b) of Rule 41, supra.

"A warrant may be issued under this rule to search for and seize any property

"(1) Stolen or embezzled in violation of the laws of the United States; or

"(2) Designed or intended for use or which is or has been used as the means of committing a criminal offense; or

"(3) Possessed, controlled, or designed or intended for use or which is or has been used in violation of Title 18, U.S.C., § 957."

In support of that insistence, the brief cites Papani v. United States, 9 Cir., 1936, 84 F.2d 160, and Harris v. United States, 1947, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399. In the latter case the Supreme Court comments:

"This Court has frequently recognized the distinction between merely evidentiary materials, on the one hand, which may not be seized either under the authority of a search warrant or during the course of a search incident to arrest, and on the other hand, those objects which may validly be seized including the instrumentalities and means by which a crime is committed, the fruits of crime such as stolen property, weapons by which escape of the person arrested might be effected, and property the possession of which is a crime."

331 U.S. at p. 154, 67 S.Ct. at p. 1103. Among other cases cited in support of that text is Matthews v. Correa, 2 Cir., 1943, 135 F.2d 534, at 537, where Judge Clark had said:

"The line between fruit of the crime itself and mere evidence thereof may be narrow; perhaps this turns more on the good faith of the search than the actual distinction between the matters turned up. In any event, the articles in question are more than evidential; they are the very things withheld."

In the present case the merchandise seized is the very property which the Government claims to have been unlawfully concealed. We find both the search and the seizure to be reasonable and proper.

(2) The defendants moved to dismiss each count of the indictment on the ground that it did not describe any property allegedly concealed with sufficient particularity to enable the defendants to prepare their defense or to form the basis of a plea of former jeopardy. The description in the first count was simply "assets of the value of $2,987.26," in the second count "assets belonging to the estate of Robert C. Beitel."

Judge Swan for the Second Circuit has commented:

"The crime is one which is peculiarly within the bankrupt\'s own knowledge, and one which may be committed under circumstances which render impossible a description of the assets concealed. Where the very essence of the crime is secreting property, how can it be necessary to allege knowledge of that of which the defendant\'s own acts prevent any knowledge? It is enough to excuse particularity of description of the manner of committing the offense for the grand jurors to allege that they do not know the details. Durland v. United States, 161 U.S. 306, 16 S.Ct. 508, 40 L.Ed. 709; United States v. Claflin, Fed.Cas.No. 14,798, 13 Blatchf. 178."

Kanner v. United States, 2 Cir., 1927, 21 F.2d 285, 287. In the present case, however, there is, and could be, no averment of lack of knowledge on the part of the grand jury.

Each count employs the word "assets" instead of "property" as used in 18 U.S. C.A. § 152. See footnote 1, supra. We deem it somewhat hypercritical to comment that "assets" include not only tangible property but debts due the bankrupt or any person for his use and any cause of action which the bankrupt has against any person arising from contract. 4 Words & Phrases Assets pp. 461, 462. Two cases decided by this Court on the same day are pertinent. In United States v. Goodman, 5 Cir., 1960, 285 F.2d 378, 380, we said:

"The defendant further criticizes Count 6 for using the word `assets\' instead of the statutory word `property\', and contends that `assets\' has a broader meaning than `property.\' However, where `assets\' is used in the count, it is in each instance described or limited by such a phrase as `represented by monies of the said corporation\' or `represented by the following: followed by a complete description of various checks\' Clearly, as so limited or described, `assets\' is the legal equivalent of `property.\'"

On the other hand, in United States v. Strauss, 5 Cir., 1960, 285 F.2d 953, 955, after a detailed discussion, we held:

"When the indictment is construed as a whole, that is the general averments of paragraph 9 with the specific allegations of paragraphs 10 and 11, it fails to charge a fraudulent transfer of any reasonably identified property of Strauss Jewelers, Inc.

"In our opinion, the indictment does not inform the defendant of the nature and cause of the accusation with such reasonable certainty that he can make his defense and protect himself after judgment against another prosecution on the same charge.5

"5. Amendment 6 to the Constitution; United States v. Cruikshank, 1876, 92 U. S. 542, 544, 558, 23 L.Ed. 588; United States v. Simmons, 1878, 96 U.S. 360, 24 L.Ed. 819; Burton v. United States, 1906, 202 U.S. 344, 26 S.Ct. 688, 50 L.Ed. 1057; Bartell v. United States, 1913, 227 U.S. 427, 33 S.Ct. 383, 57 L.Ed. 583; Hagner v. United States, 1932, 285 U.S. 427, 431, 52 S.Ct. 417, 76 L.Ed. 861; United States v. Debrow, 1953, 346 U.S. 374, 376, 74 S.Ct. 113, 98 L.Ed. 92."

In Dunbar v. United States, 1895, 156 U.S. 185, 191, 15 S.Ct. 325, 39 L.Ed. 390, in speaking of an indictment for smuggling opium, the Court said:

"The rule is that if the description brings the property, in respect to which the offence is charged, clearly within the scope of the statute creating the offence, and at the same time so identifies it as to enable the defendant to fully prepare his defence, it is sufficient."

That test was adopted by Judge Walker for this Court in ruling upon an indictment charging a bankrupt with concealing property:

"Greater particularity in the description of such moneys, shoes, and other goods was not required, as the property in regard to which the alleged crime was committed was so identified as to enable the accused to prepare his defense. Dunbar v. United States, 15 S.Ct. 325, 156 U.S. 185, 39 L.Ed. 390; United States v. Greenbaum (D.C.) 252 F. 259."

Keslinsky v. United States, 5 Cir., 1926, 12 F.2d 767, 768.

Specifically, as to the concealment of property in violation of 18 U.S.C.A. § 152, most of the pertinent cases are collected in 2 Collier on Bankruptcy, 14th ed., Section 29.05, p. 1177, to support the following text.

"In charging concealment of property the most important requirement and one about which there is disagreement, is a description of the property. Generally, the indictment is held sufficient if the description is in somewhat general terms, such as `certain goods, wares, moneys, merchandise, shoes, and personal property,\' or where the bankrupt was in the jewelry business simply to charge `certain jewelry.\' In such instances, however, it is probably necessary that a more particular description was impossible because of lack of knowledge on the part of the grand jury."

The appellants rely particularly upon ...