Goldberg v. United States, 1663-1665.

• Decision Date: 05 February 1924
• Docket Number: 1663-1665.
• Parties: GOLDBERG v. UNITED STATES (two cases). [1] CLUCK v. UNITED STATES.
• Court: U.S. Court of Appeals — First Circuit

295 F. 447

GOLDBERG v. UNITED STATES (two cases). ^[1]

CLUCK v. UNITED STATES.

Nos. 1663-1665.

United States Court of Appeals, First Circuit.

February 5, 1924

James F. Cavanagh and Leon R. Eyges, both of Boston, Mass., for plaintiffs in error.

Essex S. Abbott, Sp. Asst. U.S. Atty., of Boston, Mass. (Robert O Harris, U.S. atty., and Joseph V. Carroll, Sp. Asst. U.S Atty., both of Boston, Mass., on the brief), for the United States.

Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.

ANDERSON Circuit Judge.

The plaintiffs in error, herein called defendants, were convicted of conspiracy to conceal assets from the trustees in bankruptcy of the United Jewelry Company (which was indicted with them), a corporation in which the defendants were the sole stockholders and officers. The corporation was organized in 1919, and did business until July, 1921, when, on an involuntary petition filed July 16, it was adjudicated bankrupt. One Kantor was appointed receiver on July 29, and appointed and qualified as trustee on September 7, 1921. Shortly after, the business was sold out. Later the Goldbergs went into the jewelry business and Cluck into the dry goods business.

The gist of this case is that the personal defendants conspired to have their corporation buy on credit a large quantity of jewelry; that then, through a fake robbery, most of it should disappear-- thus concealing it from the trustee appointed in the resultant, contemplated bankruptcy. The evidence, while circumstantial, was highly persuasive. The defendants themselves took the witness stand. The jury obviously declined to believe their testimony. No exceptions were taken to the charge to the jury. The exceptions relate merely to minor rulings as to admitting and excluding evidence, and to the court's refusal to give certain requested instructions. Only a very plain and substantial error of law would warrant upsetting a verdict so based. 40 Stat. 1181 (Comp. St. Ann. Supp. 1919, Sec. 1246; Camp. v Gress, 250 U.S. 308, 39 Sup.Ct. 478, 63 L.Ed. 997; Horning v. District of Columbia, 254 U.S. 135, 41 Sup.Ct. 53, 65 L.Ed. 185; Garcia v. Hernandez (C.C.A.) 270 F. 455.

We find no error.

The questions before us require but brief and meager outline of the pretty elaborate circumstantial evidence. There was little direct conflict in the evidence. The questions were as to the truth of the testimony and as to the inferences to be drawn from the testimony, so far as found true, and from findings, if any, that the testimony of the defendants was false.

On evidence, practically undisputed, it appeared that in the six months prior to the alleged robbery, which was on July 12, 1921, the defendants had, through purchases of jewelry, incurred an increased indebtedness of about $69,000, of which $45,000 became due in July, August, and September, 1921; that during this period their sales amounted to less than $57,000, while their payments were about $50,000-- approximately the cost of the goods sold; that of the gross sales, Cluck, the immediate victim of the alleged robbery, sold, out of town, less than $6,000 worth, or about 10 per cent. of the gross business done. Without further elaboration, it is enough to say that the evidence was ample to warrant the jury in finding that the defendants had, shortly before the alleged robbery, greatly increased their stock and their debts for no legitimate business purpose.

In the spring of 1921, an automobile was bought, in which Cluck, with a chauffeur, made some business trips. Later he obtained a license; but he had never taken a trip alone, over night, without a chauffeur, until the trip during which the alleged robbery took place. Cluck testified that on July 11, 1921, he drove from Boston to Springfield; that on the 12th he visited stores in Springfield; that at about 7:50 in the evening he started for Hartford in the automobile, with a wallet containing about $85,000 worth of diamonds; that he also had $45 and a revolver with him; that as he neared Hartford, which is about 26 miles south of Springfield, a touring car passed him and stopped in front of him, so that he had to stop his car to avoid a collision; that a man jumped up on each side of his automobile; that one of them struck him a blow over his left eye, rendering him unconscious; and that the next thing he knew he was lying in the woods, bound and gagged with his own handkerchief. Some truck drivers picked Cluck up in Springfield, perhaps 2 miles south of the police station, after midnight, and took him to the Springfield Police Station.

Assignments 1, 2, 6, and 7 all rest on the unsound contention that the court erred in admitting evidence concerning the financial condition and business dealings of the defendants prior to July 1, 1921, the date of the conspiracy as alleged in the indictment. It is elementary that the government is not, in such case, held to proof of the exact date set up in the indictment. See United States v. Sheridan-Kirk Co. (D.C.) 149 F. 809, 812; Wharton's Crim. Ev., Sec. 103; Hume v. United States, 118 F. 689, 696, 55 C.C.A. 407.

Moreover even if the government were held to proving the conspiracy strictly as of July 1, 1921, the evidence was competent as showing the conditions...