Conetto v. United States

251 F. 42, 163 C.C.A. 292, 1918 U.S. App. LEXIS 1669

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 6, 1918
• Docket: No. 3087
• Status: Published

Opinion

GILBERT, Circuit Judge

(after stating the facts as above). [1] It is contended that the indictment does not charge the commission of an offense against the United States, and that where an indictment is the sole basis for removal, and fails to charge an offense, the District Court has no jurisdiction to order the removal of the accused. The extent to which inquiry may be made into the validity of an indictment on removal proceedings is outlined in Benson v. Henkel, 198 U. S. 1, 10, 25 Sup. Ct. 569, 570 (49 L. Ed. 919), as follows;

“Wo have had frequent occasion to hold generally lhat technical objections should not be considered, and that the legal sufficiency of the indictment'is only to bo determined by tlie court in which it is found. * * * Of course, tills rule has its limitations. If the indictment were a mere information, or obviously, upon inspection, set forth no crime against the United States, or a wholly different crime from that alleged as the basis for proceedings, * * * tlie commissioner could not properly consider it as ground for removal. In such cases resort must be had to other evidencio of probable cause.”

The objections to the indictment are, in brief, first, that it does not appear therefrom that the. plaintiff in error has ever been adjudged a bankrupt, and that, not having been adjudged a bankrupt, he is incapable of committing the offense for which he is indicted; and, second, that it does not appear from the indictment that at any time since the appointment of the trustee the plaintiff in error has concealed from the trustee any of the property belonging to the estate in bankruptcy. Assuming that the indictment does not allege that either of the individual members of the firm was adjudged a bankrupt, and that from the language of the indictment it is to be inferred, as the plaintiff in error contends, that the partnership only was adjudged a bankrupt, and that the property alleged to have been concealed belonged to the partnership estate in bankruptcy, it does not follow that the individual members of the firm were not subject to indictment for concealing the property.

[2] We think the proper answer to the first objection is this: The partnership was adjudged bankrupt. The property belonged to the partnership, and the members of the partnership are alleged to have concealed it. As so alleged, the concealment was a partnership act. The members of the copartnership cannot claim immunity from the consequences of their acts on the ground that they individually were not adjudged bankrupts. A partnership is a “person,” under the provisions of section 1 of the Bankruptcy Act, and it should be held to be a person within the meaning of section 29b. The question whether officers of a corporation may be prosecuted for concealing the property of a bankrupt corporation has been the subject of several decisions, and although in United States v. Rabinowich, 238 U. S. 86, 35 Sup. Ct. 682, 59 L. Ed. 1211, the court said that it'was at least doubtful whether the crime of concealing property belonging to the bankrupt estate can be perpetrated by any other than a bankrupt, the de cided weight of authority, and we think the weight of reason, affirm the liability of such officers to criminal prosecution under section 29b. United States v. Young & Holland Co. (C. C.) 170 Fed. 110; United States v. Freed (C. C.) 179 Fed. 236; Roukous v. United States, 195 Fed. 353, 115 C. C. A. 255; Kaufman v. United States, 212 Fed. 613, 129 C. C. A. 149, Ann. Cas. 1916C, 466; Wolf v. United States, 238 Fed. 902, 152 C. C. A. 36. If the officers of a corporation may thus be held answerable for concealment of the corporation property, by the stronger reason the members of a partnership should be held answerable for the concealmeht of partnership property.

In answer to the second objection, it is sufficient to say that the indictment charges that the property alleged to have been concealed was the property of the bankrupt, that it was concealed knowingly and unlawfully, and that although concealment began before the appointment of the trustee, and was therefore at that time no offense, it continued after the appointment of the trustee. The concealment is alleged to have consisted in the failure of the accused to deliver the property to the trustee, or to account for the same, or to disclose their possession thereof, and thereby concealment from the trustee was clrarged, and the completion of the offense was sufficiently set forth. Kaufman v. United States, 212 Fed. 613, 129 C. C. A. 149, Ann. Cas. 1916C, 466; Warren v. United States, 199 Fed. 753, 118 C. C. A. 191, 43 L. R. A. (N. S.) 278; Cohen v. United States, 157 Fed. 651, 85 C. C. A. 113.

The order is affirmed.