United States v. Greenbaum

• Citation: 252 F. 259
• Decision Date: 16 May 1918
• Docket Number: 5855.
• Parties: UNITED STATES v. GREENBAUM.
• Court: U.S. District Court — Eastern District of Michigan

252 F. 259

UNITED STATES v. GREENBAUM.

No. 5855.

United States District Court, E.D. Michigan, Southern Division.

May 16, 1918

John E Kinnane, U.S. Dist. Atty., of Detroit, Mich.

Selling & Brand, of Detroit, Mich., for defendant.

TUTTLE District Judge.

This matter is before the court on a demurrer to the indictment. The indictment charged the defendant with having knowingly and fraudulently concealed, while a bankrupt, certain property, belonging to the bankrupt's estate, from the trustee in bankruptcy. The gist of the indictment is found in the following allegation therein:

'And the grand jurors aforesaid upon their like oaths further present that on, to wit: the fifth day of July, A.D. 1916 the said Joseph Greenbaum at the city of Detroit in the said division and district and within the jurisdiction of this honorable court, who was then and there a bankrupt as aforesaid, and while he was such bankrupt, did unlawfully knowingly, and fraudulently and feloniously conceal a certain large portion of his property belonging to the bankrupt estate of the said Joseph Greenbaum from the said Harry C. Moulthrop, trustee as aforesaid of the property belonging to the estate in bankruptcy of the said Joseph Greenbaum, said property then and there consisting of money and merchandise of the value of, to wit, thirty thousand dollars lawful money of the United States, said merchandise comprised in said portion of said property being then and there of the following nature and character, to wit, women's and children's clothing and ready to wear garments, general clothing, dry goods, and merchandise, and being of the general kind and description manufactured and handled at wholesale and retail by said Joseph Greenbaum at his place of business at, to wit, No. 285 Gratiot avenue in said city of Detroit, a more particular description of said merchandise being to these grand jurors unknown, and a more particular description of the denomination, kind, and character of said money being also to these grand jurors at this time unknown-- contrary to the form, force, and effect of the act of Congress in such case made and provided, and against the peace and dignity of the United States of America.'

Defendant demanded a bill of particulars, specifying and describing the property which he is charged with having concealed, and the place, time, and manner of such concealment. The court having ordered the furnishing of as definite a bill of particulars as was possible, the district attorney filed what he termed 'the government's bill of particulars as far as it is now able to furnish such,' as follows:

The following is the government's bill of particulars as far as it is now able to furnish such, to wit:

Amount of merchandise and assets on hand per statement of Jan. 1, 1916 ..................................................... $20,090.27 Less liabilities then owing ......................................... 6,764.49 ---------- Leaving net assets and property ................................... $13,325.78 Plus net equity in house and lot .................................... 3,500.00 ---------- Total net worth Jan. 1, 1916 ................................. $16,825.78 Merchandise purchased by defendant on credit between Jan. 1, and May 18, 1916 (the date of filing petition in bankruptcy), over and above amounts paid ...................................... $36,352.43 ---------- Total property and assets .................................... $53,178.21 Less total property surrendered and turned over to his trustee ........................................ $6,000.00 Less expenses and probable losses ....................... 5,000.00 $11,000.00 --------------------------- $42,178.21

Such bill of particulars also recited that the government was unable to furnish the bill of particulars desired by defendant, because the information demanded by defendant was from the very nature of the case not within the knowledge of the government, but was well known to defendant. It was alleged that the government . . .

'is unable to state the exact kind, quantity, and value of the merchandise and chattels concealed by defendant, or the portion of such property that was in the form of money, or the kind of money, or denominations thereof, for want of knowledge, such being peculiarly within the knowledge of defendant, upon whom rests the burden of proof to show that he turned over to his trustee all of his assets and to explain the apparent disappearance of property traced to and owned by him.'

Defendant thereupon filed a demurrer to the indictment on 16 different grounds, which may be grouped under three heads, as follows: First, that the indictment does not state any crime or misdemeanor punishable under the statutes of the United States; second, that said indictment does not sufficiently describe the time, place, or manner of the alleged concealment; third, that said indictment does not sufficiently describe the property alleged to have been concealed.

1. The contention that the indictment does not state any offense punishable under the statutes of the United States is based on the ground that there is no allegation in the indictment that the property alleged to have been concealed was not exempt from execution under the laws of the state of Michigan, wherein the defendant was domiciled for the six months immediately preceding the time of the filing of such indictment, and counsel refers to section 6 of the Bankruptcy Act (Act July 1, 1898, c. 541, 30 Stat. 548 (Comp. St. 1916, Sec. 9590)), which provides that such act . . .

'shall not affect the allowance to bankrupts of the exemptions which are prescribed by the state laws in force at the time of the filing of the petition in the state wherein they have had their domicile for the six months or the greater portion thereof immediately preceding the filing of the petition.'

The provision of the Bankruptcy Act upon which this indictment is based is found in section 29b (section 9613), which provides, among other things, 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 concealed while a bankrupt, or after his discharge from his trustee any of the property belonging to his estate in bankruptcy.'

The contention of counsel just stated is clearly without merit. If it is the claim of the bankrupt that the property which he is thus charged with having knowingly and fraudulently concealed from his trustee consisted of his exemptions, and that for that reason he could not be guilty of having knowingly and fraudulently concealed such property, that is a matter of defense, to be presented upon his trial.

It will be noted that the section of the Bankruptcy Act on which this indictment is based does not contain any express exception or refer to the exemptions of the bankrupt; and it is well settled that, unless a statute creating an offense so defines such offense that the latter cannot be properly described without negativing an exception, an indictment charging a violation of such statute need not negative the exception. United States v. Cook, 17 Wall. (84 U.S.) 168, 21 L.Ed. 538; Stokes v. United States, 157 U.S. 187, 15 Sup.Ct. 617, 39 L.Ed. 667; United States v. Stone (D.C.) 135 F. 392; United States v. Freed (C.C.) 179 F. 236. As was pointed out in United States v. Cook, supra:

'Such an offense must be accurately and clearly described, and if the exception is so incorporated with the clause describing the offense that it becomes in fact a part of the description, then it cannot be omitted in the pleading; but if it is not so incorporated with the clause defining the offense as to become a material part of the definition of the offense, then it is matter of defense, and must be shown by the other party, though it be in the same section, or even in the succeeding sentence.'

It is entirely plain that this contention must be overruled.

2. Nor am I able to agree with the contention that this indictment does not specify in detail exactly the time, place, or manner of the alleged concealment, and that it is therefore defective. It will be noted that such concealment is alleged to have taken place at the city of Detriot in this district and on, to wit, July 5, 1916. It therefore certainly cannot be said that the time and place of the alleged offense are not specified in the indictment.

It is urged that the word 'conceal' has no such settled technical meaning that its use sufficiently denotes every element necessary to constitute an offense under the statute, and it is insisted that, as section la (22) of the Bankruptcy Act of July 1, 1898 (Comp. St. 1916, Sec. 9585), provides that the word "conceal' shall include secrete, falsify, and mutilate,' it is not sufficient to allege a concealment by using the word 'conceal,' without stating how and in what manner the alleged concealment was accomplished.

The purposes of an indictment are to inform the accused, with reasonable certainty, of the nature of the offense with which he is charged, so that he may make proper preparation for his defense, to enable him to use his acquittal on such charge, if he is subsequently again accused of the same crime, and to enable the court to determine in advance of the trial whether the acts of the accused alleged to constitute a crime would, if proved in court, warrant a conviction for such crime. United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588; Evans v. United States, 153 U.S. 584, 14 Sup.Ct. 934, 38 L.Ed. 830; Cochran v. United States, 157 U.S. 286, 15 Sup.Ct. 628, 39 L.Ed. 704; Burton v. United States, 202 U.S. 344, 26 Sup.Ct. 688, 50 L.Ed. 1057, 6 Ann.Cas. 392. In the language of the Supreme Court in ...