People v. Levinson

• Decision Date: 13 August 1979
• Docket Number: No. 76-722,76-722
• Citation: 75 Ill.App.3d 429,31 Ill.Dec. 307,394 N.E.2d 509
• Parties: , 31 Ill.Dec. 307 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Melvin E. LEVINSON, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 509

394 N.E.2d 509

75 Ill.App.3d 429, 31 Ill.Dec. 307

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Melvin E. LEVINSON, Defendant-Appellant.

No. 76-722.

Appellate Court of Illinois, First District, First Division.

Aug. 13, 1979.

Rehearing Denied Sept. 24, 1979.

James J. Doherty, Public Defender of Cook County (Mary Therese Woodward, Ronald P. Alwin, Asst. Public Defenders, of counsel), for defendant-appellant.

Bernard Carey, State's Atty. of Cook County (Marcia B. Orr, Rimas F. Cernius, Asst. State's Attys., of counsel), for plaintiff-appellee.

CAMPBELL, Justice:

At the conclusion of a bench trial the defendant, Melvin E. Levinson, was found guilty of criminal contempt and was sentenced to five years imprisonment.

On appeal the defendant presents the following issues for review: (1) whether the statute of limitations bars the prosecution of the defendant for criminal contempt; (2) whether documentary evidence was properly admitted at the trial where such evidence was first obtained by a grand jury; (3) whether the defendant was properly precluded from testifying as to prior conversations with his co-defendant father; and (4) whether the sentence was illegal and excessive. We affirm.

Both parties have stipulated as to the contents of the record on appeal and no issue has been raised as to the sufficiency of the proof or any question relating to proof of guilt beyond a reasonable doubt.

Leo Ziv (decedent), an Illinois resident, died intestate on September 4, 1965, leaving a substantial estate consisting mainly of stocks and cash deposited in large part with various banks in safety deposit boxes and savings accounts. The only surviving heirs were the decedent's three sisters, Sylvia Kessler, Flo Ziv and Bertha Pinsky, and his brother, Sol Ziv, all of whom resided in California. On September 9, 1965, I. Harvey Levinson, an attorney with offices in Chicago, was appointed administrator of the decedent's estate by the circuit court of Cook County, Probate Division, at the request of the aforementioned heirs. Shortly thereafter attorney Melvin E. Levinson, the son of I. Harvey Levinson and the defendant herein, was retained by his father as attorney for the estate. The administrator and the defendant shared the same suite of offices during the initial phases of the administration of the estate.

In view of the absence of any issue raised on appeal as to the sufficiency of the evidence, it is unnecessary to set forth all of the facts in detail surrounding the handling of the estate by the administrator and the attorney for the estate. It is sufficient for our purposes to briefly set forth the allegations contained in the amended petition for a rule to show cause for criminal contempt and as established by the proof in this cause. The petition alleges generally and the proof establishes that the defendant inter alia committed the following acts:

(1) The defendant and the administrator of the estate sold the decedent's substantial stock holdings without leave of court and then deposited the proceeds in various bank accounts in the name of the estate and proceeded to withdraw the same or similar amounts on the same day or within a few days of the initial deposit without leave of court.

(2) The defendant endorsed some of these deposited checks, signed the signature cards on file at the banks, as well as other documents, in the name of the administrator.

(3) The defendant filed or participated in the filing of various inventories with the probate court containing false reports as to the assets in the decedent's estate. For example, an amended inventory prepared by the defendant was filed on July 29, 1966. The defendant failed to list $57,885 discovered by the administrator in a safety deposit box at First Federal Savings and Loan which was owned jointly by the decedent and his brother, Sol Ziv. The $57,885 was listed in subsequent inventories only after its omission was discovered by other parties.

(4) On or about September 13, 1967, the defendant received a check drawn on the Exchange National Bank for $6,000 from Diamond Jim's Inc. which was made payable to the administrator. Of the said $6,000, $5,000 was for the settlement of a debt due the decedent and $1,000 represented the proceeds from the sale of 121/2 shares of Diamond Jim stock. No portion of said $6,000 was listed as having been received by the estate in any accounting filed by the defendant or the administrator. Nor was any portion of said $6,000 distributed to the heirs.

(5) The defendant knew of certain dividends received by the administrator which should have been included as assets of the estate. The administrator failed to report, account for, or distribute $14,254.94 in said dividends.

(6) The defendant filed or participated in the filing of accounts on February 16, 1968, June 26, 1968, November 21, 1969 and again on January 6, 1970, which had attached to them vouchers indicating that the accountant for the estate had signed for and had been paid $2,500 when in fact the accountant had received approximately $1,000 and had not signed the attached vouchers.

(7) The defendant signed the name of the administrator on the account filed November 21, 1969. This account indicated that $28,475.14 in federal estate taxes had been paid when, in fact, they had not been paid. Also the defendant knowingly participated in the preparation and filing of a final account entitled "Returns and Disbursements" on January 6, 1970. This final account indicated again that said taxes had been paid when in fact they had not been paid and further indicated that a receipt had been obtained from the federal government for said payment when no such receipt had been issued or received.

(8) The final account also indicated that $12,000 had been distributed to the heirs when in fact no such distribution had taken place. No receipts were attached to this account indicating that the heirs had received all or any part of this sum.

(9) In addition, the final account indicated that the heirs had received certain shares of the decedent's stock when in fact no such distribution of said shares was made and no vouchers reflecting such distribution was attached to the final account.

(10) The defendant failed to advise the Court of misstatements in the final account in the period subsequent to the filing of the final account.

(11) The defendant and the administrator prolonged the administration of the estate necessitating the hiring of a California attorney by the heirs to investigate the handling of the estate.

(12) The defendant and the administrator deliberately misrepresented the status of the estate and failed to cooperate with the California attorney necessitating the additional hiring of an Illinois attorney to examine the handling of the estate.

(13) The defendant failed to cooperate with respect to turning over certain documents of the estate to the California or Illinois attorney, or to the other interested parties involved in the administration of the estate.

(14) The defendant and the administrator wilfully and wrongfully converted to their own use $136,252.98 or more from the estate and refused to restore said funds or properly distribute the same in breach of their fiduciary duty to the estate.

These are some of the acts alleged in the amended petition for a rule to show cause and as established by the proof in this cause. There is ample evidence to demonstrate other improprieties on the part of the defendant and no question is presented on appeal as to the sufficiency of the evidence of guilt beyond a reasonable doubt.

Although the record is unclear as to when the defendant withdrew as the estate's attorney, the defendant testified at the trial that he had nothing further to do with the estate after the filing of the November 25, 1969 final account. The record reveals that on November 26, 1969, Ira Schultz was granted leave to file his appearance as the attorney for the estate by court order.

On September 2, 1971, I. Harvey Levinson was removed as administrator and Gregory Gelderman, a Chicago attorney, who had been appointed previously amicus curiae to investigate the estate was appointed administrator de bonis non on October 26, 1971. Gelderman immediately began making collections from the surety of the estate to recover the assets of the estate. He also began making distributions of the estate's assets to the heirs. The recovery and collection process ran from February 22, 1972 through March 8, 1974 by Gelderman and he was further directed by court order to pay, on March 15, 1972, the federal estate taxes alleged to have already been paid.

On November 22, 1971, Gelderman filed a rule to show cause against both Levinsons to recover the assets of the estate and against the defendant specifically for failure to deliver the estate's books and records. Continuances were granted to both Levinsons on the rules to show cause. Thereafter, on February 25, 1972, the State filed a motion for the defendant to produce certain documents. Several witnesses testified that the defendant had not been cooperative with respect to turning over documents of the estate.

On February 5, 1973 the State of Illinois by leave of court filed a petition for a rule to show cause directed against both Levinsons as to why they should not be held in criminal contempt of court for conduct which had obstructed the administration of justice. On March 21, 1973, the State, with leave of court, filed an amended petition for rule to show cause and a second amended petition was filed on June 28, 1973. This later amended petition for rule to show cause forms the basis of this appeal.

In March of 1973, while the above proceedings were pending in the Probate Division, there was a Cook County grand jury investigation looking into the conduct of the defendant and I. Harvey Levinson in connection with the decedent's estate. Subpoenas were issued and evidence was gathered...