United States v. Deutsch, 12003

• Decision Date: 19 April 1957
• Docket Number: 12004.,No. 12003,12003
• Citation: 243 F.2d 435
• Parties: UNITED STATES of America v. Irving DEUTSCH, Appellant, Jerome Deutsch, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

243 F.2d 435 (1957)

UNITED STATES of America v. Irving DEUTSCH, Appellant Jerome Deutsch, Appellant.

Nos. 12003, 12004.

United States Court of Appeals Third Circuit.

Argued January 10, 1957.

Decided April 19, 1957.

Marvin Comisky, Philadelphia, Pa., for appellant.

W. Wilson White, U. S. Atty., Philadelphia, Pa., for appellee.

Before GOODRICH, KALODNER and HASTIE, Circuit Judges.

HASTIE, Circuit Judge.

This is an appeal by two individuals from their conviction of violation of that provision of Section 371 of Title 18, United States Code, which makes it a crime to "conspire * * * to commit any offense against the United States."

The principal argument before us has been whether the evidence sufficiently established and the trial judge adequately explained the essential elements of a conspiracy fraudulently to transfer and conceal property in contemplation of bankruptcy. However, we find a difficulty at the very threshold of inquiry to which neither party has alluded either in the trial court or on this appeal. The charging portion of the indictment itself fails to designate or in any appropriate way describe any conspiracy in which the defendants are said to have joined.

The indictment was drawn in two counts. The first count charged a substantive offense, to wit, that the "defendants did, * * * while said corporations were then and there bankrupt, knowingly, willfully, unlawfully, fraudulently and feloniously conceal a portion of the bankrupts' estate from said * * * receivers * * *." However, at the conclusion of the trial and on motion of the prosecutor, the court dismissed this substantive charge of actual concealment of assets from receivers during bankruptcy.

The defendants were convicted solely on the second count which purported to charge a conspiracy. The charging portion of this count reads:

"* * * defendants, did unlawfully, willfully and knowingly combine, conspire, confederate and agree together and with each other and with divers other persons, whose names are unknown to the Grand Jurors, to commit offenses against the United States, and more particularly, with intent to defeat the Bankruptcy Law (Title 18 U.S.C. Section 152), and while the said corporations were then and there bankrupt, did knowingly, willfully, unlawfully, fraudulently and feloniously conceal a portion of the bankrupt estate from the said receivers in violation of Title 18 U.S.C., Section 371."

As we understand it, this language charges two things, a conspiracy and a course of action. The charge of conspiracy is in itself a wholly inadequate generality, stating merely that the defendants "conspired to commit offenses against the United States." What follows says nothing about conspiracy or agreement but rather charges substantive activity of the defendants after bankruptcy in actually concealing assets from the receivers. Indeed, the charge here is the very offense described in the first count which was dismissed. It may well be that the government intended to charge that the defendants conspired to do these substantive wrongs, but we think a statement that the substantive offense has been committed cannot reasonably be substituted for or treated as the equivalent of a statement of conspiratorial agreement in connection therewith. This is not to deny that substantive conduct such as is alleged in the concluding part of the present count may afford impressive evidence of some properly charged scheme or agreement. But the allegation of such evidentiary matter is no substitute for charging the essence of the conspiracy itself. Hamner v. United States, 5 Cir., 1943, 134 F.2d 592; cf. United States v. Britton, 1883, 108 U.S. 199, 2 S.Ct. 531, 27 L.Ed. 698; Joplin...