United States v. Abraham, 14750.

• Decision Date: 26 July 1965
• Docket Number: No. 14750.,14750.
• Citation: 347 F.2d 395
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joseph P. ABRAHAM, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

347 F.2d 395 (1965)

UNITED STATES of America, Plaintiff-Appellee, v. Joseph P. ABRAHAM, Defendant-Appellant.

No. 14750.

United States Court of Appeals Seventh Circuit.

June 15, 1965.

Rehearing Denied July 26, 1965.

A. Bradley Eben, Edward Atlas, Chicago, Ill., for appellant.

Edward V. Hanrahan, U. S. Atty., John Peter Lulinski, John Powers Crowley, Robert S. Atkins, Irwin I. Katz, Asst. U. S. Attys., Chicago, Ill., for appellee, Arthur D. Rissman, Asst. U. S. Atty., of counsel.

Before HASTINGS, Chief Judge, and DUFFY and CASTLE, Circuit Judges.

(En Banc).

CASTLE, Circuit Judge.

The defendant, Joseph P. Abraham, was convicted, after a jury trial, on an indictment charging him with filing a false claim under oath in a bankruptcy proceeding.¹ He was sentenced to imprisonment for a period of eighteen months.

The contested issues presented by the defendant's appeal concern, among other things, the sufficiency of the evidence to support the conviction, whether the court erred in its rulings on the admissibility of evidence and in instructing the jury, whether improper prejudicial argument of the prosecutor deprived defendant of a fair trial, and whether suppression of evidence by the prosecution deprived the defendant of due process.

In our consideration of defendant's contentions that the evidence is insufficient to sustain the conviction we must view the evidence and draw the inferences therefrom in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680.

The indictment charged defendant with filing a false claim under oath on July 28, 1958, in a bankruptcy proceeding in which Lurie Bros., Inc., had been adjudicated a bankrupt. Lurie Bros. was a retailer of household appliances. The claim was alleged to be false in that one of the invoices attached thereto set forth and claimed $2,328.00 due the defendant for advertising for "Radio schedule for May on station WEAW" whereas the true indebtedness for such item was for no more than $720.00. A Bill of Particulars furnished by the government in response to defendant's request for specification as to the basis on which the amount of $720.00 was arrived at, set forth that the number of radio spots (commercial announcements) used on station WEAW for Lurie Bros. during the month of May, 1958, was determined from the station's records; that the rate between the station and the defendant was a matter of private contract as was the rate between defendant and Lurie Bros.; and that both such rates were determined from a course of conduct during the period preceding May, 1958.

From our review of the record we are satisfied that there is ample evidence from which the jury could have concluded that the rate Lurie Bros. actually paid the defendant, an advertising representative, for spot announcements on station WEAW was $3.00 per spot but that the defendant submitted invoices to Lurie Bros., apparently originating from the radio station but actually prepared by the defendant, which through inflation of the charges indicated a $6.00 rate, and that such billing device was followed so as to enable Lurie Bros. to obtain payment of its entire advertising expenditures from advertising allowances made to it by appliance distributors which were intended to cover only a percentage (usually 50% but in a few instances 75%) of the amount expended by Lurie Bros. in advertising the distributor's product.

One of defendant's contentions is, in substance, that the record supports the conclusion that both Lurie Bros. and the appliance distributors knew of the billing device, but even if it be conceded that the distributors did not have such knowledge, the fact that the defendant and Lurie Bros. may have been defrauding the distributors does not make defendant's claim false or fraudulent as to Lurie Bros. But this argument overlooks the fact that, in any event, if as the record indicates, Lurie Bros. was obligated to...