Edwards v. United States, 16057.

• Citation: 265 F.2d 302
• Decision Date: 07 April 1959
• Docket Number: No. 16057.,16057.
• Parties: Max T. EDWARDS and Gilbert Edwards, Appellants, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

265 F.2d 302 (1959)

Max T. EDWARDS and Gilbert Edwards, Appellants, v. UNITED STATES of America, Appellee.

No. 16057.

United States Court of Appeals Ninth Circuit.

April 7, 1959.

Preston, Thorgrimson & Horowitz, Charles Horowitz, Seattle, Wash., for appellants.

Charles P. Moriarty, U. S. Atty., Joseph C. McKinnon, Asst. U. S. Atty., Seattle, Wash., for appellee.

Before STEPHENS, Chief Judge, HAMLEY and JERTBERG, Circuit Judges.

JERTBERG, Circuit Judge.

By indictment returned December 13, 1956, the appellants were charged with violation of Section 152, Title 18 U.S. C.A. The relevant portions of that section provide:

"Whoever knowingly and fraudulently conceals from the receiver, custodian, trustee, marshal, or other officer of the court charged with the control or custody of property, or from creditors in any bankruptcy proceeding, any property belonging to the estate of a bankrupt; or * * * "Whoever, while an agent or officer of any person or corporation, and in contemplation of a bankruptcy proceeding by or against such person or corporation, or with intent to defeat the bankruptcy law, knowingly and fraudulently transfers or conceals any of the property of such person or corporation; * * *

"Shall be fined not more than $5,000 or imprisoned not more than five years, or both."

The indictment contained 21 counts; the first 20 counts charged both appellants, and the 21st charged only the appellant Gilbert Edwards.

Count 3 of the indictment reads as follows: "That on and after May 7, 1953 at Seattle in the Northern Division of the Western District of Washington, Max T. Edwards and Gilbert Edwards did knowingly and fraudulently conceal from the receiver, custodian, trustee, marshal, and other officers of the court charged with the control and custody of property, and from creditors in a bankruptcy proceeding, property belonging to the estate of a bankrupt, to wit, Edwards Shaver Departments, Incorporated, to wit, the sum of $4,000.00.

"All in violation of 18 U.S.C. § 152."

Counts 6, 8, 12, 15, 18, 20 and 21 contain exactly the same language as appears in count 3 except as to the amount or type of property concealed, and in this respect count 6 alleges the concealment of $15,000; count 9, $5,000; count 12, $7,500; count 15, $2,000; count 18, $3,000; count 20, one cash register; and count 21, one adding machine.

Counts 1, 4, 7, 10, 13 and 16 charged that on or prior to certain specified dates in December 1952 and January 1953, the earliest date being December 15, 1952 and the latest date being January 22, 1953, the appellants wrongfully and unlawfully conspired to commit offenses against the laws of the United States, to wit, Section 152 of Title 18 U.S.C.A., in that being officers and agents of a corporation, Edwards Shaver Departments, Incorporated, and in contemplation of a bankruptcy proceeding by and against said corporation and with intent to defeat the bankruptcy law, to knowingly and fraudulently transfer and conceal property of the corporation, and to effect the object of the conspiracy the appellant Max T. Edwards transferred from Seattle, Washington, to Vancouver, British Columbia, the sums of money respectively set forth in counts 3, 6, 9, 12, 15 and 18.

Counts 2, 5, 8, 11, 14 and 17 charged that on or about the same dates in December of 1952 and January of 1953, as specified in the conspiracy counts, the appellants, being officers and agents of the corporation, in contemplation of a bankruptcy proceeding by and against the said corporation and with intent to defeat the bankruptcy law, did knowingly and fraudulently transfer to Vancouver, British Columbia, the sums of money respectively set forth in the conspiracy counts.

Count 19 charged that on or about May 6, 1953, the appellants, being officers and agents of the corporation, in contemplation of a bankruptcy proceeding by and against the corporation, and with intent to defeat the bankruptcy law, knowingly and fraudulently transferred to Vancouver, British Columbia, one cash register, the property of the corporation.

Jury verdicts were returned finding each appellant not guilty of the offenses set forth in counts 1, 2, 4, 5, 7, 8, 10, 11, 13, 14, 16 and 17.

Jury verdicts were returned finding the appellants guilty of the offenses set forth in counts 3, 6, 9, 12, 15, 18, 19, and 20. A jury verdict was returned finding the appellant Gilbert Edwards guilty of the offense set forth in count 21.

At the close of the appellee's case, the appellants moved the court for a judgment of dismissal as to each count of the indictment, which motion was denied. The motion was predicated upon the insufficiency of the evidence. Following the return of the jury verdicts, the appellants moved the court, pursuant to Rule 29, Federal Rules of Civil Procedure, 28 U.S.C.A., for a judgment of acquittal as to the counts on which guilty verdicts were returned, and for a new trial pursuant to Rule 33, Federal Rules of Civil Procedure. The district judge denied both motions.

The appellant Max T. Edwards was committed to the custody of the Attorney General for a period of three years on count 19 of the indictment, and for the same period of time on each of counts 3, 6, 9, 12, 15, 18, and 20, the sentences on each of such counts to run concurrently with the sentence imposed on count 19. The appellant Gilbert Edwards was committed to the custody of the Attorney General for a period of two years on count 19 of the indictment, and for the same period of time on each of counts 3, 6, 9, 12, 15, 18, 20 and 21, the sentences on each of such counts to run concurrently with the sentence imposed on count 19.

The appellants seek reversal of the judgments pronounced and sentences imposed upon them on several grounds, which may be summarized as follows: that the evidence is insufficient to sustain the order of the trial court denying appellants' motion for judgment of acquittal made at the close of the plaintiff's case; that the evidence is insufficient to sustain a conviction of either appellant on any of the counts on which they were convicted; that the district court prejudicially erred in rulings on evidence; that the district court prejudicially erred in denying appellants' motions for judgment of acquittal and a new trial; that the district court prejudicially erred in failing to instruct the jury on certain issues of law; and that, as to appellant Max T. Edwards, the venue laid was not proved.

Before considering these specifications of error, we will briefly outline the history of this case leading up to the return of the indictment against the appellants.

The appellant Max T. Edwards is a Canadian subject. Prior to 1946 and since, he was the owner and manager of a retail shaver business in Vancouver, British Columbia, known as Edwards, Ltd. Since 1949 he has owned and operated a retail cutlery business in Vancouver under the name of Lewis Cutlery, Ltd. In 1946 he commenced his own retail shaver business in Seattle, Washington, under the name of Edwards Electric Sales and Service Company. This business was incorporated in 1946, under the laws of the State of Washington, and Max T. Edwards became and remained the sole stockholder. In 1946 he organized a corporation under the laws of the State of California, under the name of Edwards Electric, Inc., to operate retail shaver stores in California. The names of these two corporations were later changed to Edwards Shaver Departments, Incorporated. Originally the two corporations were treated as separate entities, but by 1952 they were operated for all practical purposes as one corporation. Both appellants were officers and directors of both corporations, appellant Max T. Edwards being the president. The appellant Gilbert Edwards became associated with these corporations in 1949, and was the manager of concessions and the principal assistant to Max T. Edwards in the operation of the business of the corporations.

On March 27, 1953, an involuntary petition in bankruptcy was filed against the California corporation. On March 11, 1953, a receiver for the Washington corporation was appointed by a Washington state court on application of petitioning creditors. On May 7, 1953, an involuntary petition in bankruptcy was filed against the Washington corporation on application of petitioning creditors. The bankruptcy proceedings in California were dismissed on condition that all assets be transferred to Washington, and that the two corporations be treated as one for the purposes of the proceeding. The record does not disclose the date on which a receiver or trustee was first appointed by the Federal Court in Washington, but the first adjudication in bankruptcy was on May 27, 1953.

We have carefully reviewed the transcript of the record in this case and, for the reasons hereinafter set forth, have reached the conclusion that the judgments pronounced must be reversed and the case remanded to...