Goldstein v. United States
| Decision Date | 06 February 1926 |
| Docket Number | No. 4588.,4588. |
| Citation | 11 F.2d 593 |
| Parties | GOLDSTEIN v. UNITED STATES. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Jos. E. Pottle, of Milledgeville, Ga., and Wallace Miller, of Macon, Ga., for plaintiff in error.
F. G. Boatright, U. S. Atty., of Cordele, Ga., and B. S. Deaver, Asst. U. S. Atty., of Macon, Ga.
Before WALKER, BRYAN, and FOSTER, Circuit Judges.
Plaintiff in error, who had been adjudicated a bankrupt, hereafter called defendant, was convicted on two indictments charging the concealing of his assets from his trustee in bankruptcy and operating a scheme to defraud by use of the mails, which were consolidated and tried together without objection. Sentences of two years' imprisonment were imposed on each indictment, to run concurrently, so that the effect is a single sentence, not exceeding what could have been imposed on any count of either indictment.
In the course of the bankruptcy proceedings the trustee filed a petition against defendant to recover certain assets of the estate alleged to be in his possession. On this the referee made the following order:
At the hearing on the rule to show cause, plaintiff in error gave certain testimony. The record does not disclose whether he took the stand voluntarily, or was called as a witness by the trustee. We assume that he took the stand in his own behalf, for the purpose of defeating the recovery sought by the trustee; but, in the view we take of the case, that is immaterial.
On the trial of the indictments the testimony given at the hearing before the referee on the rule to show cause was offered in evidence by the government. Defendant objected, on the ground that the testimony was privileged under the provisions of section 7 of the Bankruptcy Act (Comp. St. § 9591), and on no other ground. The objection was overruled, and the testimony admitted.
The only error assigned is to the admission of this testimony. Section 7 of the Bankruptcy Act of 1898, provides:
"Duties of Bankrupts. — a. The bankrupt shall (1) attend the first meeting of his creditors, if directed by the court or a judge thereof to do so, and the hearing upon his application for a discharge, if filed; * * * and (9) when present at the first meeting of his creditors, and at such other times as the court shall order, submit to an examination concerning the conducting of his business, the cause of his bankruptcy, his dealings with his creditors and other persons, the amount, kind, and whereabouts of his property, and, in addition, all matters which may affect the administration and settlement of his estate; but no testimony given by him shall be offered in evidence against him in any criminal proceeding. * * *"
It is evident that the intent of the law is to make it the duty of a bankrupt to make a full disclosure regarding his affairs, for the purpose of facilitating the administration of his estate, and to that extent be compelled to testify, although in doing so he might give testimony that would tend to incriminate him, on the theory that the provision of subdivision 9 affords full protection.
On the other hand, it is clearly not the policy of the law to extend the privilege to any one but the bankrupt, nor to the bankrupt himself when called merely as a witness, in a proceeding in which it is not made his duty to testify. Section 21 of the Bankruptcy Act (Comp. St. § 9605), by virtue of which any person, including the bankrupt and his wife, may be examined concerning the acts, conduct, or property of a bankrupt whose estate is in process of administration, does not grant any protection against the subsequent use of the testimony in another proceeding. McCarthy v. Arndstein...
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...the witness in subsequent criminal proceedings. Ensign v. Pennsylvaia, 227 U.S. 592, 33 S.Ct. 321, 57 L.Ed. 658 (1912); Goldstein v. United States, 11 F.2d 593 (5th Cir.) cert. denied, 271 U.S. 667, 46 S.Ct. 483, 70 L. Ed. 1141 There are inherent limitations as to the permissible scope of s......
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