Rudin v. United States

• Decision Date: 19 April 1958
• Docket Number: No. 13330.,13330.
• Citation: 254 F.2d 45
• Parties: Benjamin J. RUDIN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

254 F.2d 45 (1958)

Benjamin J. RUDIN, Appellant, v. UNITED STATES of America, Appellee.

No. 13330.

United States Court of Appeals Sixth Circuit.

April 19, 1958.

Fred R. Walker, Detroit, Mich. (William G. Comb, Detroit, Mich., on the brief), for appellant.

Robert E. DeMascio, Asst. U. S. Atty., Detroit, Mich. (Fred W. Kaess, U. S. Atty., Detroit, Mich., on the brief), for appellee.

Before MILLER and STEWART, Circuit Judges, and MATHES, District Judge.

SHACKELFORD MILLER, Jr., Circuit Judge.

Following trial by jury and a verdict of guilty, the appellant received a sentence of six months imprisonment for fraudulently concealing from the Trustee in Bankruptcy of the Detroit Central Wholesale Grocery Company certain cash and merchandise inventory which was property belonging to the estate of the bankrupt, in violation of Section 151, Title 18 U.S.Code. On this appeal he contends that the District Court erred (1) in denying his motion to dismiss the indictment, made prior to the trial of the case and renewed at the close of the Government's case, upon the grounds (a) that the statute of limitations had run prior to the return of the indictment and (b) that the indictment did not charge an offense within the purview of the statute, and (2) in denying his motion for judgment of acquittal, made at the conclusion of the Government's case, upon the grounds that the evidence was not sufficient to submit the case to the jury or to support a conviction.

The indictment, which was returned on March 10, 1953, charged that on or about March 16, 1950, the appellant did unlawfully and fraudulently conceal "from Orland H. Ellis, Trustee of Detroit Central Wholesale Grocery Company, a Michigan Corporation, cash in the amount of $66,013.30 and merchandise inventory consisting of miscellaneous groceries in the amount of $57,665.07, which were the property of said corporation; said defendant then being the President and Treasurer of said corporation and which said corporation was duly adjudicated a bankrupt on January 27, 1950, in the United States District Court in Detroit, Michigan; said Orland H. Ellis being appointed Trustee by Arthur A. Koscinski, District Judge, March 1, 1950, and becoming duly qualified by filing bond in the amount of $10,000.00 on March 4, 1950, * * *."

The applicable statute of limitations is three years. Section 3282, Title 18 U.S.Code. Appellant contends that the statute of limitations commenced to run when the trustee qualified by filing the required bond on March 4, 1950, at which time the assets of the bankrupt estate were concealed from him, and that the indictment, having been returned on March 10, 1953, was beyond the three-year period.

Section 3284, Title 18 U.S.Code, provides that the concealment of the assets of a bankrupt shall be deemed to be a continuing offense until the debtor shall have been finally discharged or a discharge denied, "and the period of limitations shall not begin to run until such final discharge or denial of discharge." Section 32, sub. a, Title 11 U.S.C.A., provides that the adjudication of any person, except a corporation, shall operate as an application for a discharge and that a "corporation may, within six months after its adjudication, file an application for discharge in the court in which the proceedings are pending." The bankrupt corporation did not make an application for discharge in bankruptcy, nor was an order entered denying the bankrupt a discharge. The indictment alleges that the corporation was adjudicated a bankrupt on January 27, 1950. Accordingly, it had until July 27, 1950, to apply for its discharge. Computing the three-year statute of limitations from that date means that the indictment was returned well within the required time. Winslow v. United States, 9 Cir., 216 F.2d 912.

In support of his contention that the indictment did not charge an offense within the purview of the statute, appellant points out that the indictment charges him with concealing from the Trustee in Bankruptcy of Detroit Central Wholesale Grocery Company, a Michigan Corporation, cash and merchandise "which were the property of said corporation" and that it failed to charge that the property concealed belonged to the estate of the bankrupt. Section 152, Title 18 U.S.Code, under which the indictment was brought, provides that whoever fraudulently conceals from the trustee in any bankruptcy proceeding "any property belonging to the estate of a bankrupt" shall be guilty of an offense. In other words, it is contended that the indictment charges that the concealed assets were the property of the corporation rather than that they belonged to the estate of the bankrupt. This contention disregards other allegations of the indictment, namely, that the defendant was "the President and Treasurer of said corporation and which said corporation was duly adjudicated a bankrupt on January 27, 1950 in the United States District Court in Detroit, Michigan."

It is, of course, settled law that in order for an indictment to be valid it must allege all of the elements which are necessary to constitute a violation of the statute. But it is not necessary that the indictment follow the exact wording of the statute. Dunbar v. United States, 156 U.S. 185, 190, 15 S.Ct. 325, 39 L.Ed. 390; United States v. Marcus, 3 Cir., 166 F.2d 497, 501. The test of the sufficiency of an indictment is that it must sufficiently apprise the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, that the record show with accuracy to what extent he may plead a former acquittal or conviction. Hagner v. United States, 285 U.S. 427, 431, 52 S.Ct. 417, 76 L.Ed. 861; Anderson v. United States, 6 Cir., 215 F.2d 84, 86-87, certiorari denied, Lewis v. United States, 348 U.S. 888, 75 S.Ct. 208, 99 L.Ed. 698, rehearing denied, 348 U.S. 922, 75 S.Ct. 291, 99 L.Ed. 723. As stated by the court in United States v. Debrow, 346 U.S. 374, 378, 74 S.Ct. 113, 98 L.Ed. 92, it is inconceivable to us how the defendant could possibly be misled as to the offense with which he stood charged. Reading the indictment in its entirety, it is clear that it charges the appellant with concealing from the Trustee in Bankruptcy property belonging to the estate of the bankrupt, although the exact words of the statute were not followed. Pallett v. United States, 5 Cir., 228 F.2d 671, 672, Rule 52(a), Rules of Criminal Procedure, 18 U.S.C.

With respect to the merits of the case, the evidence showed the following. A Receiver was appointed for the Detroit Central Wholesale Grocery Company, who took possession of the premises on December 27, 1949.^* He made a physical inventory of the assets on the premises as of the time they were taken over by him, which was in the amount of $57,690.11. The Company was adjudicated a bankrupt on January 27, 1950. A Trustee in Bankruptcy was appointed, who qualified on March 4, 1950. He received the books and records from the Receiver and took over the bankrupt estate. The books showed an inventory of $184,320.66 at the close of the fiscal period April 30, 1949. An examination of the books and records was made for the Receiver by an accountant, Duffield, and for the Trustee by an F. B. I. Agent-Accountant, Berglund. In making his examination and analysis of the affairs of the bankrupt, Berglund also interrogated certain employees and other persons who had done business with the bankrupt. The Government relied mainly in presenting its case upon the testimony of Duffield and Berglund who stated what their respective examinations disclosed. The books and records which formed the basis for their testimony were introduced in evidence and made available for inspection and examination and for use in cross-examination. Under the general well settled rule, their testimony was admissible and was properly received in evidence. United States v. Johnson, 319 U.S. 503, 519, 63 S.Ct. 1233, 87 L.Ed. 1546; United States v. Marachowsky, 7 Cir., 201 F.2d 5, 18, certiorari denied, 345 U.S. 965, 73 S.Ct. 949, 97 L.Ed. 1384; Hoyer v. United States, 8 Cir., 223 F.2d 134, 138.

Duffield testified that he considered the inventory on hand on April 30, 1949, to which he added purchases in the amount of $703,361.66 during the period from May 1, 1949, to the close of business on December 27, 1949, making a total of $887,682.32 of merchandise available for sale. For the same period there were total sales in the amount of $732,009.71. He reduced the sales to cost by deducting a markup of 6.7 per cent of cost, based on other evidence hereinafter referred to, resulting in the figure of $682,965.06. The sum of the inventory on hand at the close of business and the amount of sales for the period of May 1, 1949, through December 27, 1949, namely, $740,655.17, represented the total merchandise accounted for. He subtracted this from the total merchandise available for sale, $887,682.32, to determine the amount of merchandise not accounted for. The resulting shortage was $147,027.15.

Appellant criticises Duffield's analysis and...