In re Kaplan Bros

• Decision Date: 22 May 1914
• Docket Number: 1826.
• Citation: 213 F. 753
• Parties: In re KAPLAN BROS.
• Court: U.S. Court of Appeals — Third Circuit

213 F. 753

In re KAPLAN BROS.

No. 1826.

United States Court of Appeals, Third Circuit.

May 22, 1914

Alfred Aarons, of Philadelphia, for plaintiffs in error.

J Howard Reber and Francis Fisher Kane, U.S. Atty., both of Philadelphia, for defendants in error.

Before BUFFINGTON, HUNT, and McPHERSON, Circuit Judges.

J. B McPHERSON, Circuit Judge.

The plaintiffs in error, Charles Kaplan and Max Kaplan, were sentenced to imprisonment as a punishment for contempt of court. They were members of the bankrupt firm of Kaplan Bros (no proceeding was taken against the third partner), and were called before the referee on May 13, 1913, for examination at the first meeting of creditors. Their answers and demeanor were so unsatisfactory that the referee (Joseph Mellors, Esq.) officially and of his own motion certified as follows:

'That in the course of the proceedings in this cause the said bankrupts were called for examination before me, and their answers to pertinent questions put to them showed that their whole testimony was practically a perfectly transparent case of intentional and willful evasion and refusal to make any explanation of the facts connected with their bankruptcy under the pretense of defective memory, ignorance, and stupidity, and a manifest and deliberate determination to conceal all material facts within their knowledge.

'The bankrupts are intelligent and have an average acquaintance with the English language and have been engaged in business many years.

'Their recollection, when they desired to exercise it, convinced the referee, as he watched them, that, when they desired to give facts, they could.

'The testimony taken before the referee shows to his mind a determination to refuse to give the trustee and the creditors any information whatever as to the disposition of their property. They pretended to be ignorant of facts which could have been known to any one who had sufficient intelligence to perform the most ordinary business affairs.

'Although the bankrupts failed, owing about $56,000 to creditors, with tangible assets not much more than nominal, yet their manner on the witness stand was anything but serious, but, on the contrary, they were sometimes flippant and at other times defiant.

'During the examination the bankrupts repeatedly and continually testified (as the reading of their testimony will show) in a vague, unsatisfactory, ambiguous, and contradictory manner, with the intention of obstructing the administration of justice and preventing the collection and distribution of their property and the discovery of the whereabouts of the same.

'When they were asked regarding transactions directly within their knowledge, and facts which they must have known, they expressed ignorance or lack of recollection.

'Charles Kaplan, during an examination covering only 48 pages of testimony, answered to pertinent and important questions, 'I don't know,' and 'I don't remember,' 118 times. His brother, Max Kaplan, in an examination covering only 29 pages, answered to pertinent questions, 'I don't remember,' and 'I don't know,' 117 times.

'Even with the aid of the referee, counsel were unable to elicit proper and truthful answers to all of the pertinent questions put to these witnesses, and were therefore obliged to suspend the examination.

'From the foregoing facts the referee finds that the said bankrupts have refused to submit themselves to 'an examination according to law.'

'The referee therefore finds that the said bankrupts, in refusing to submit themselves to 'an examination according to law,' are now in contempt before him.'

It will be observed that the plaintiffs in error were not charged with perjury, so that the case of Magen v. Campbell, 26 Am.Bankr.Rep. 594, 186 F. 675, 108 C.C.A. 531, does not apply. A recent decision on the same subject is U.S. v. Appel (D.C.) 211 F. 495. After the referee's certificate had been filed, the trustee petitioned the district court for a rule on the bankrupts to show cause why they should not be punished for contempt, and the rule was granted, returnable on October 29th. Thereupon they filed an answer, setting up inter alia that the trustee's petition was 'insufficient to support any order whatsoever, in that it is beyond the power of a private citizen to petition for the infliction of criminal penalties, such as are sought to be inflicted by the said petition. ' Apparently this objection was regarded as well founded, and the proceedings upon that petition were abandoned.

But, as the referee's certificate had been brought to the attention of the District Court, Judge Thompson himself took action thereon, and on October 31st entered a new rule on the bankrupts requiring them to appear on November 3d 'to show cause why they should not be held in contempt. ' No objection was made to the regularity of this order, and the bankrupts appeared and filed answers thereto. An oral hearing also was held, and the bankrupts were further examined at their own request; the final result being that the court adjudged them to be guilty of contempt and sentenced them to imprisonment for 60 days. This order is now complained of on several grounds, all of which call for consideration.

1. The first objection is, that the stenographer's notes of the bankrupts' testimony at the creditors' meeting were received in evidence; the argument being that this was in violation of section 7, cl. 'a' (9), of the Bankruptcy Act. That clause requires a bankrupt to submit himself to examination concerning the conduct of his business, etc., but protects him by providing that 'no testimony given by him shall be offered in evidence against him in any criminal proceeding. ' It is only necessary to reply that this provision has been declared by the Supreme Court to refer to past transactions concerning which the bankrupt may be charged with criminal conduct. Glickstein v. United States, 222 U.S. 139, 32 Sup.Ct. 71, 56 L.Ed 128; Cameron v. U.S., 231...