Slakoff v. United States
| Decision Date | 29 September 1925 |
| Docket Number | No. 3286.,3286. |
| Citation | 8 F.2d 9 |
| Parties | SLAKOFF v. UNITED STATES. |
| Court | U.S. Court of Appeals — Third Circuit |
Henry W. Braude (of McAvoy & Braude), of Philadelphia, Pa., for plaintiff in error.
George W. Coles, U. S. Atty., and L. Le Roy Deininger, Asst. U. S. Atty., both of Philadelphia, Pa.
Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.
Benjamin A. Slakoff, defendant below, was indicted, tried, and convicted for having devised a scheme and artifice to defraud and for obtaining property by means of false and fraudulent representations, and for using the mails for the purpose of executing the scheme, in violation of section 215 of the United States Criminal Code (Comp. St. § 10385).
He was engaged in manufacturing and selling clothing at the southeast corner of Twenty-Second and Arch streets, Philadelphia, Pa., under the name of B. A. Slakoff & Co. The indictment contains eight counts. In the first, second, third, and sixth he was charged with sending through the mails to prospective creditors a statement of which the following is a copy, representing his net worth to be $49,098.45 on December 30, 1922:
State of Financial Condition as of December 30
1922
Assets
Cash on hand and in bank (National
Bank of Commerce) .............. $ 4,287.60
Accounts receivable .............. 31,012.19
Inventory ........................ 28,614.23
Machinery and fixtures ........... 9,849.06
Liberty bonds .................... 350.00
Real estate ...................... 7,850.00
Building & Loan Association ...... 1,651.25
__________
$83,614.33
Liabilities
Notes payable .................... $15,500.00
Other notes payable .............. 1,499.81
Accounts payable ................. 13,416.07
Mortgages ........................ 4,100.00
__________
Total ......................... $34,515.88
Net worth ..................... 49,098.45
__________
$83,614.33
In the fourth, fifth, seventh, and eighth, he was charged with sending through the mails a similar statement representing his net worth to be $57,006.95 on September 1, 1923. The first statement was sent out on January 6 and February 19, 1923, and the second on September 6, October 29, November 2, 3, and 6, 1923.
The statements were admittedly false, in that they did not correctly represent the assets, liabilities, and net worth of the defendant when they were made. Both statements contained an overstatement of his assets — the first one by $18,000 and the second by $17,000.
On the basis of these statements, credit was extended to him. He seeks to relieve himself of the consequences of his alleged wrongdoing by the plea of ignorance, that he did not knowingly and willfully devise the scheme. His counsel, summing up the substance of the testimony, said
That the defendant did the acts charged is not, and cannot be, denied, but he may not be convicted and punished unless he knowingly and willfully did them with the intent to defraud and obtain credit and property. An incorrect statement, grossly misrepresenting facts, does not amount to fraud in law, unless the false representation was knowingly and willfully made with fraudulent intent. Gilpin v. Merchants' National Bank, 165 F. 607, 91 C. C. A. 445, 20 L. R. A. (N. S.) 1023; Cooper v. Schlesinger, 111 U. S. 148, 4 S. Ct. 360, 28 L. Ed. 382. It was the defendant's duty, however, to make such investigation as was necessary to enable him honestly to sign and send out the statements. If he did not do this, but acted with such gross carelessness and indifference to the truth of the representations contained in the statements as to warrant the conclusion that he acted fraudulently, then his conviction may stand. Kaplan v. United States, 229 F. 389, 143 C. C. A. 509; Yusem v. United States (C. C. A.) 8 F.(2d) 6.
The evidence, however, tended to establish that the defendant himself was responsible for the statements. He himself prepared them in part and furnished the bookkeeper with the figures which she put into them. If he did this, knowing the representations to be false, he was guilty of the crime charged. Whether or not he knew the falsity of the statements, and made and sent them out with fraudulent intent, are questions upon which there was sufficient evidence, if the jury believed it, to sustain the verdict. The evidence was correctly submitted to the jury. The court charged that "there must be in the case, not only a finding that the statements were false, but that they were sent out with the intent to defraud." The verdict settles the fact of intent, and the conviction must stand unless the trial judge otherwise committed reversible error.
This the defendant says he did in admitting in evidence his schedules in bankruptcy. Under section 21 (a) of the Bankruptcy Act of 1898 (Comp. St. § 9605), the bankrupt must testify and produce his books and papers when required to do so, but section 7 (9), being Comp. St. § 9591, provides that "no testimony given by him shall be offered in evidence against him in any criminal proceeding." This provision is simply the recognition of the constitutional immunity from self-incrimination of the Fifth Amendment. Testimony within the...
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