Radin v. United States

• Decision Date: 10 April 1911
• Docket Number: 195.
• Citation: 189 F. 568
• Parties: RADIN et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Second Circuit

189 F. 568

RADIN et al. v. UNITED STATES.

No. 195.

United States Court of Appeals, Second Circuit.

April 10, 1911

Judgment was entered upon the verdict of a jury finding defendants above named guilty under section 5440 of the U.S. Revised Statutes (U.S. Comp. St. 1901, p. 3676) of conspiracy to conceal the property of H. Feinberg & Son, bankrupts, from their trustee under section 29b of the bankruptcy act. The defendants Herman Feinberg and Samuel Medlin were convicted and fined respectively $100 and $500; they have not appealed. Radin was sentenced to pay a fine of $1,000 and imprisonment for one year and Minsky to pay a fine of $500 and imprisonment for five months. The indictment against Isabelle Minsky, the wife of Abraham Minsky, was dismissed.

The indictment as found contained two counts, the first relating to a conspiracy alleged to have been formed on the 29th of October, 1908, and the second to a conspiracy formed on the 5th of November, 1908. At the close of the government's case it elected to go to the jury on the first count and the second count was dismissed as to all of the defendants. The trial commenced on the 7th of October, 1909, and was concluded on the 27th of the same month, occupying 16 court days. Two counsel appeared for the prosecution and five for the defendants.

Boothby Baldwin & Hardy (Ernest E. Baldwin, of counsel), for plaintiffs in error.

Henry A. Wise, U.S. Atty., and Felix Frankfurter, Asst. U.S. Atty.

Before LACOMBE, COXE, and WARD, Circuit Judges.

COXE Circuit Judge.

The first count of the indictment upon which Radin and Minsky (hereafter called defendants) were convicted charges, in substance, that on the 29th day of October, 1908, Herman Feinberg and his son Henry were doing business in furs and skins at 48 East Tenth street, New York, and also in London. England, under the firm name of H. Feinberg & Son, the father taking care of the New York branch and the son, Henry Feinberg, the London branch. That on said day Herman Feinberg, having a large quantity of furs and skins on the premises of the firm in New York, received information from London that the firm was in business difficulties and thereafter the defendants above named, together with Herman Feinberg, Samuel Medlin, Isabelle Minsky and others contemplated, anticipated and planned that Herman Feinberg should commit an act of bankruptcy by removing from the firm's premises and concealing the said furs and skins with intent to defraud the firm's creditors. That the parties above named also contemplated, anticipated and planned that an involuntary petition in bankruptcy should be filed and the said Herman and Henry Feinberg should be adjudicated bankrupts and a trustee should be appointed of their estate in bankruptcy. The indictment further charges that the persons above named, in the circumstances as stated wilfully and unlawfully conspired to commit an offense against the United States by corruptly and fraudulently agreeing that Herman Feinberg knowingly and fraudulently should conceal, while a bankrupt, from the trustee of his estate in bankruptcy, the said furs and skins and the money which might be received from a sale thereof together with other property and choses in action which belonged to the said firm.

The indictment further charges that to effect the object of the conspiracy the said conspirators, on the 30th of October and the 1st day of November, 1908, took part in the removal of furs and skins belonging to the said firm from 48 East Tenth street and shipped a portion thereof to Canada, well knowing that said goods would in due course belong to the estate in bankruptcy of the said H. Feinberg & Son. That in order to effect the object of the conspiracy, certain of the conspirators removed books of account from the firm's place of business, that Herman Feinberg went to Jersey City on November 2nd and remained there for four weeks and that when the receiver in bankruptcy went to No. 48 East Tenth street to take possession of the bankrupts' property he was informed by one of the conspirators that the furs and skins on the premises did not belong to the estate in bankruptcy.

The evidence tended to establish the truth of these allegations. We do not regard it necessary to review the testimony in detail because it can hardly be questioned that if the jury credited the witnesses called by the prosecution, they were entirely justified in finding that when it became evident that the firm of H. Feinberg & Son was in financial straits Radin and Minsky, with the other defendants, conspired together to prevent the firm's creditors from receiving any of the firm's property.

Bankruptcy was anticipated and means were taken to prevent any stock or accounts from coming into the control of the court in bankruptcy. Feinberg went into hiding in New Jersey where process could not reach him. The books were removed and the bookkeeper secreted herself. A fictitious company was created to which part of the stock was transferred and Minsky went to Canada as the agent of this company and sold goods there which had been shipped from New York. The accounts were assigned and collected by the conspirators, Radin receiving the assignment of several. In short, when the conspiracy had concluded its preliminary activities, the assets of the firm had substantially disappeared, nothing tangible was in sight; if the creditors recovered the property which had been transferred it could only be at the end of protracted litigation.

We do not, of course, intend to say that the testimony tending to show the conspiracy and the overt acts thereunder was not disputed. There were sharp conflicts on many of the essential issues, but the jury were justified in determining them in favor of the government.

The evidence was largely presumptive. The agreement was not reduced to writing and signed by the conspirators. It was not proved by direct oral evidence. From the nature of the case such proof was impossible. Conspiracies are not formed in that way. Conspirators do not go out upon the public highways and proclaim their intention. They accomplish their purpose by dark and sinister methods and must be judged by their acts.

If the proof shows a previous meeting and a concert of action thereafter, each of the parties doing some act contributing to accomplish an unlawful purpose, a jury is justified in finding that they were conspiring together to accomplish that purpose. One who commits an unlawful act knowing that it is unlawful cannot be heard to say that he did it with innocent intent. The law presumes that every sane person intends the necessary consequences of his acts. If the jury believed that the defendants did the acts sworn to by the witnesses for the prosecution they were justified in drawing the conclusion that a conspiracy existed.

The trial judge, during a charge which stated impartially the conflicting evidence and the deductions to be drawn therefrom, asked the jury to answer the following question:

'Was there an agreement to do what was done with intent to conceal Feinberg's goods and property from such trustee in bankruptcy as might be appointed thereafter?' The jury answered the question in the affirmative and as there is no reason for setting their verdict aside, we must consider the questions of law which will be discussed hereafter in the light of the facts as found, viz., that a conspiracy existed to conceal Feinberg's goods from a trustee who might be appointed in the future and that pursuant to such conspiracy they were so concealed.

The most important question, and the one which has given us the greatest concern, arises under the first proposition argued by the defendants. It is asserted that:

'The indictment is defective in that there is no allegation that the alleged conspiracy was continued and persisted in after the appointment of a trustee.'

It is true that there is no such averment and no proof was offered of the appointment of a trustee, indeed, at the argument, it was admitted, ore tenus, that no trustee was appointed. What exigency required the finding of this indictment at a time when it could not be alleged that a trustee had been appointed and that the conspiracy was a continuing one as to him, we, of course, do not know. It would seem, however, that the risk of having so perplexing a question in the record might easily have been avoided if the, apparently, simple precaution had been taken of procuring the appointment of a trustee before the finding of the indictment.

In approaching this question it is well to bear constantly in mind that this is an indictment under section 5440 of the Revised Statutes and not under section 29b of the bankruptcy act.

Section 5440 is as follows:

'If two or more persons conspire either to commit any offense against the United States or to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy all the parties to such conspiracy shall be liable to a penalty of not more than ten thousand dollars, or to imprisonment for not more than two years or to both fine and imprisonment in the discretion of the court.'

Section 29b is as follows:

'A person shall be punished by imprisonment for a period not to exceed two years, upon conviction of the offense of having knowingly and fraudulently (1) concealed while a bankrupt, or after his discharge, from his trustee, any of the property belonging to his estate in bankruptcy.'

The words 'any offense against the United States' in section 5440 have been construed to include any offense made a crime by the laws of the United States. It, therefore makes it a crime for two or more persons to conspire that a bankrupt shall knowingly and...