Kanner v. United States

• Decision Date: 08 August 1927
• Docket Number: No. 380.,380.
• Citation: 21 F.2d 285
• Parties: KANNER et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Second Circuit

21 F.2d 285 (1927)

KANNER et al. v. UNITED STATES.

No. 380.

Circuit Court of Appeals, Second Circuit.

August 8, 1927.

Irving E. Kanner, of New York City (Max D. Steuer, of New York City, Harold H. Corbin, of Saratoga Springs, and Edward J. Bennett, of Brooklyn, of counsel), for plaintiffs in error.

Charles H. Tuttle, U. S. Atty., of New York City (Ben Herzberg and Kenneth F. Simpson, Asst. U. S. Attys., both of New York City, of counsel), for the United States.

Before MANTON, L. HAND, and SWAN, Circuit Judges.

SWAN, Circuit Judge (after stating the facts as above).

It is urged that the indictment is wholly insufficient to support the conviction, because it does not set forth the offense with sufficient particularity to meet the requirements of criminal pleading. The point was raised at the beginning of the trial by a motion to dismiss.

The defendants' contention is supported by United States v. Lynch (D. C.) 11 F.(2d) 298. On the other hand, Greenbaum v. United States, 280 F. 474 (C. C. A. 6), and Keslinsky v. United States, 12 F.(2d) 767 (C. C. A. 5), are cited by the prosecutor to show that the indictment was good as a pleading. It is true that in each of those cases a bill of particulars, or its equivalent, was given. But a bill of particulars cannot cure an indictment fundamentally defective. Collins v. United States, 253 F. 609 (C. C. A. 9). In the Greenbaum Case the court does not seem to have relied upon the bill of particulars, for no mention of it is made in the opinion. It is true, also, that there the approximate value of the property was stated. But the value of the property concealed is not an essential part of the crime. The statement of it is therefore surplusage. 3 Bishop, New Criminal Procedure (2d Ed.) § 751 (2). Hence its inclusion in the indictment could not save the pleading if the specification of the property concealed was insufficient without it. In the Keslinsky indictment no value was stated, but the goods concealed were described as "certain goods, wares, moneys, merchandise, shoes, and personal property belonging to said bankrupt estate." This is scarcely more specific than in the case at bar.

Frequently, in statutory offenses, an indictment charging the crime in the substantial words of the statute has been held sufficient, though even in such cases the charge must be set forth so as reasonably to inform the defendant of the nature of the accusation against him. United States v. Simmons, 96 U. S. 360, 24 L. Ed. 819. The purpose of the rule being to enable the defendant to prepare his defense, it would seem that, if ever particularity may be dispensed with, it should be so in the crime of concealing assets. The crime is one which is peculiarly within the bankrupt's own knowledge, and one which may be committed under circumstances which render impossible a description of the assets concealed. Where the very essence of the crime is secreting property, how can it be necessary to allege knowledge of that of which the defendant's own acts prevent any knowledge? It is enough to excuse particularity of description of the manner of committing the offense for the grand jurors to allege that they do not know the details. Durland v. United States, 161 U. S. 306, 16 S. Ct. 508, 40 L. Ed. 709; United States v. Claflin, Fed. Cas. No. 14,798, 13 Blatchf. 178.

In the case at bar the indictment charges concealment of "moneys and properties belonging to the estate in bankruptcy," and the inducement makes it reasonably clear that the property was in part at least "dress goods." All that the grand jurors knew was what the accountant, Adler, told them, and the exact amount of the assets concealed was unknown to him, as was also the more particular description of the property. The proof itself was inferential, and did not disclose what pieces of dress goods were concealed, or where they were concealed, or whether they had not been turned into cash, which was concealed. No one but the defendants knew what the concealed property was, or in what form it was, or what they had done with it. The fact of concealment was inferable from the large discrepancy between the merchandise which the books showed to be on hand and what was actually found, coupled with the defendants' suspicious conduct, for example, in camouflaging the stock on their shelves and withdrawing money on the eve of bankruptcy. Such a discrepancy has been recognized as a link in the chain of proof of concealment in Stern v. United States, 193 F. 888, 892 (C. C. A. 3); United States v. Greenbaum (D. C.) 252 F. 259, 265; Frieden v. United States, 5 F.(2d) 556 (C. C. A. 4). The utmost that the grand jurors could have alleged was that the defendants concealed dress goods of the approximate value of $100,000, or the proceeds of such goods. This would have added nothing of substance. An allegation of the amount of the concealment, is not, as has been already stated, a material allegation. A specification of the facts known to the grand jurors would not have been definite enough to give the defendants any information as to the assets they are charged with concealing. We are satisfied...