Bisno v. United States

• Decision Date: 31 January 1962
• Docket Number: No. 17239.,17239.
• Citation: 299 F.2d 711
• Parties: Alexander BISNO, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

299 F.2d 711 (1961)

Alexander BISNO, Appellant, v. UNITED STATES of America, Appellee.

No. 17239.

United States Court of Appeals Ninth Circuit.

November 21, 1961.

Rehearing Denied January 31, 1962.

COPYRIGHT MATERIAL OMITTED

Ronald E. Landers and Harvey R. Gerber, Los Angeles, Cal., for appellant.

Francis C. Whelan, U. S., Atty., Thomas R. Sheridan, Asst. U. S. Atty., Chief, Criminal Division, Robert E. Hinerfeld, Los Angeles, Cal., for appellee.

Before BARNES, HAMLEY and JERTBERG, Circuit Judges.

JERTBERG, Circuit Judge.

Appellant, hereafter referred to as Bisno, was indicted on a single count of knowingly and fraudulently concealing from a trustee in bankruptcy property belonging to a bankrupt estate in violation of Title 18 U.S.C.A. Section 152. This section provides, in pertinent part:

Whoever knowingly and fraudulently conceals from the trustee charged with the control or custody of property in any bankruptcy proceeding, any property belonging to the estate of a bankrupt shall be fined or imprisoned or both.

The indictment arose out of bankruptcy proceedings against Bisno which were commenced upon the filing of an involuntary bankruptcy petition against him on April 5, 1956, in the United States District Court for the Southern District of California, Central Division. Bisno was adjudicated a bankrupt on April 26, 1956. On May 28, 1956, a trustee was appointed. On June 4, 1956, Bisno filed a Schedule and a Statement of Affairs purporting to list all his assets and liabilities. A Supplemental Statement of Affairs was filed in September, 1957. The indictment lists ten specific items of property allegedly belonging to his bankrupt estate which Bisno allegedly knowingly and fraudulently concealed from the trustee of said estate. Responsive to Bisno's demand, the Government filed a Bill of Particulars more specifically describing and elaborating on the ten specific items of property alleged in the indictment to have been concealed.

In Schedule B of the original schedule of affairs filed on June 4, 1956, appellant listed as his total assets: (1) certain interests in real estate; (2) various enumerated negotiable and non-negotiable interests and securities; (3) office furniture and fixtures, subject to a $5000 chattel mortgage to one Millie Sterett; (4) $17,270 in debts due on open accounts; and (5) various unliquidated claims. Bisno listed under the items in the schedule for cash on hand and deposits of money in banks and elsewhere "none." The supplemental schedule filed in September, 1957, listed no cash on hand or bank deposits.

As alleged in the indictment the concealed items of property are: (1) approximately $45,000; (2) a loan receivable from Mildred Corvino in the sum of $8,200; (3) Bisno's interest in a note in the sum of $28,000 by Wilbur Dow and Wilma Dow, dated August 13, 1955, and his interest in a trust deed upon an apartment building in Las Vegas, Nevada, which trust deed was security for the payment of said note; (4) Bisno's interest in a parcel of land known as Sunset Manor in Las Vegas, Nevada, which interest had an approximate value of $8,000; (5) a chattel mortgage in the sum of $35,000 on the furniture and fixtures of the Moulin Rouge Hotel in Las Vegas, Nevada; (6) a note of the Exeter Hotel in the sum of $2,000 dated December 20, 1955, payable to Sally Bisno; (7) a cashier's check in the sum of $2,500, dated December 29, 1955, drawn on the Bank of America, Beverly Drive and Wilshire Branch, payable to "Al Bisno or Sally Bisno"; (8) 56 shares of stock, to-wit, 35 shares in Middle River Manor, Inc., and 21 shares in Riverdale Apartment, Inc., which stock was worth approximately $33,200.00; (9) furniture and fixtures at 241 South Beverly Drive, Beverly Hills, California, which furniture and fixtures had a value of approximately $3,000.00; and (10) a brokerage commission and interest in the sum of 2% per annum of the unpaid balance on a $100,000 investment in the Kimball Building, Boston, Massachusetts.

The case was tried by a jury, which returned a verdict of guilty of the one offense set forth in the indictment. Bisno appeals from the judgment of conviction which followed.

We will first consider Bisno's contention that the evidence is insufficient to sustain the conviction. While the indictment lists ten specific items of property which Bisno allegedly concealed, it is settled in this circuit that the fact that several different items of property are concealed does not multiply the offenses even though the concealment of any one of the items standing alone will constitute the offense denounced by the statute. Edwards v. United States, 265 F.2d 302 (9th Cir., 1959). In view of such rule of law we will first consider the sufficiency of the evidence as it relates to the first item of property described in the indictment, to-wit, the sum of approximately $45,000. In respect to this item, Item A in the bill of particulars furnished by the Government alleges that between January 1, 1956, and April 5, 1956, Bisno received $107,404.04 and disbursed from said amount only $60,004.18, leaving an amount of $47,399.86 unaccounted for anywhere in the schedules. In proof of this item, the Government offered the testimony of Grant Earl, a F.B.I. agent who specializes in accounting. Earl testified that he arrived at the sum of $47,399.86 after examining Bisno's accounting books and cancelled checks and following several conferences with Bisno. Earl testified to his computations item by item and indicated precisely how he arrived at the above figures.

From the $107,404.04 which Earl computed to be the total amount received by Bisno from January 1, 1956, to April 5, 1956, $92,504.18 is evidenced not only by book entries but also by cancelled checks or photostatic copies thereof. These checks consist of: three checks totaling $45,000, issued by one Marks in late December, 1955, payable to Bisno and endorsed by him; one check for $11,000 issued by one Wolonow in late December, 1955, payable to Bisno and endorsed by him; one check for $36,504.18 marked as payable out of an escrow held by the Long Beach National Bank dated February 15, 1956, payable to Anne Abrams, a nominee of Bisno, endorsed over to Combined Television Pictures, Inc., a corporation controlled by Bisno and bearing Bisno's endorsement. The remaining items making up the total arrived at by Earl are evidenced by book entries and memoranda.

An examination of the $60,004 total allowed for disbursements shows liberality toward Bisno. Thus, from the $45,000 received from Marks, a disbursement of $23,500 back to Marks from Bisno was allowed although evidenced by neither a book entry nor a check but only by statements of Marks and Bisno. From the escrow check of $36,504.18, $20,504.18 shown by a book entry to have gone into Bisno's business was allowed as a disbursement. Also $8,000 in cashiers' checks was allowed as a disbursement to Jules Bisno. This item reappears in connection with Item C alleged in the bill of particulars. Eight thousand dollars in cashiers' checks was allowed as a disbursement to Sally Bisno, wife of Bisno. This item reappears in connection with Items F and G, alleged in the bill of particulars.

Bisno's first contention is that his accounting records are so unreliable that the testimony of Earl must be completely discounted. In support of such contention our attention is directed to certain isolated remarks made by Earl suggesting deficiencies in Bisno's accounting methods and testimony of similar import by one Finkelman, who was Bisno's accountant up to 1955. We find this contention to be without merit. Earl's testimony stands unrebutted in the record. There is abundant evidence in the record to show that Bisno received and disbursed the amounts alleged by the Government in the bill of particulars. The difference between such amounts is a figure rounded off by the Government in the indictment at $45,000 which Bisno received and did not disburse. Such amount does not appear on the schedules and no explanation appears as to where such amount went except Bisno's unsupported estimate of gambling losses. Even under such estimate such losses would not total over $4050 ($300 per week for 13½ weeks). The evidence showed receipt by Bisno of a substantial amount of money in excess of disbursements immediately prior to bankruptcy, such amount being far in excess of the amount which might reasonably be expected to be expended for living expenses. No explanation appears as to where the money went. From such evidence the jury is entitled to infer that such amount was in the possession of Bisno and by him knowingly and fraudulently concealed from the trustee. Noell v. United States, 183 F.2d 334 (9th Cir.1950). See also Arine v. United States, 10 F.2d 778 (9th Cir.1926); United States v. Wodiska, 147 F.2d 38 (2nd Cir.1945); Cohen v. United States, 67 F.2d 449 (4th Cir.1933). Bisno's attack on the foundation laid for Earl's testimony goes to the weight and not its admissibility.

In our view the evidence above reviewed, standing alone, is sufficient to sustain Bisno's conviction of the single offense of knowingly and fraudulently concealing from the trustee property belonging to the bankrupt estate.

Briefs filed on behalf of Bisno are redundant with charges of "misconduct," `over-prosecution" and "prejudice." Bisno's contention is that the Government pictured as fraudulent, transactions "normal" to a big time real estate promoter, and by reference to "irrelevant" transactions, painted an aura of fraud around Bisno which distracted an "unsophisticated" jury from the specific issues before it, thus leading to a verdict "inflamed by passion and prejudice."

We find Bisno's charges of "misconduct and prejudice" unfounded. The facts in the case are complex. The trial lasted five weeks. The exhibits are voluminous and the transcript of testimony totals over 2,000 pages. The remarks of Government counsel were not on the whole...