Alexander Bisno v. United States

BARNES, Before HAMLEY and JERTBERG, Judges. Circuit JERTBERG, Judge. Circuit Appellant, hereafter referred to as single was a indicted on count of knowingly fraudulently concealing bankruptcy a trustee in belonging bankrupt to a estate in viola- of Title 18 tion U.S.C.A. Section 152. provides, pertinent part: This section knowingly fraudulently Whoever conceals from the trustee custody with the control prop- erty any bankruptcy proceeding, belonging any property to the estate bankrupt of a shall be fined im- prisoned or both. The indictment arose out bank- against ruptcy proceedings Bisno filing upon commenced of an in- voluntary bankruptcy Rouge petition tures the Moulin Hotel Las Vegas, Nevada; April 5,1956, (6) him on States in United the Exeter note of District Hotel District Southern Court sum of dated Decem- California, 20, 1955, Sally Bisno; (7) payable ber Division. Central April adjudicated bankrupt $2,500, was cashier’s check in the sum of ap- May 28, 1956, 29, 1955, dated 1956. On trustee December drawn on pointed. 4, 1956, America, Beverly filed Bank On June Drive and Wil- pur- Branch, payable of Affairs shire Schedule and a Statement to “A1 Bisno or Sally porting Bisno”; stock, to list all assets and liabilities. to- shares wit, Supplemental Manor, A Affairs was Statement of in shares Middle River September, Inc., Apart- filed in The indictment and 1957. 21 shares in Riverdale specific property ment, Inc., al- ap- lists ten which stock was worth belonging bankrupt legedly proximately (9) $33,200.00; his estate furniture allegedly knowingly Beverly Drive, and which Bisno and fixtures at 241 South fraudulently Beverly Hills, California, the trustee concealed from furni- Responsive approxi- of de- said estate. Bisno’s ture and fixtures had a value of mand, mately brokerage $3,000.00; (10) of Par- a Bill the Government filed and describing specifically and ticulars more elaborating commission and interest sum of specific per of unpaid items on the ten annum of balance on 2% alleged property $100,000 indictment to in the investment Kimball in the Building, Boston, been concealed. Massachusetts. by jury, original The case was tried which re- In B of the schedule Schedule guilty turned a verdict of of one of- appellant of affairs filed on June (1) fense set forth appeals Bisno the indictment. certain listed as his assets: total judgment estate; (2) from the of conviction various enu- in real terests non-negotiable negotiable which followed. and merated securities; (3) furni- and office interests will first consider Bisno’s con subject fixtures, chat- and $5000 ture tention evidence is insufficient to Sterett; (4) mortgage Millie tel to one sustain the conviction. the indict While accounts; open $17,270 in debts due specific property ment items lists ten of (5) unliquidated claims. various and allegedly concealed, which Bisno items in the sched- listed under the Bisno settled this fact that circuit deposits of hand and cash on ule for money property different of several items are “none.” and elsewhere in banks multiply concealed does not the offenses Sep- supplemental filed in schedule The tember, 1957, though even concealment of one hand no cash on listed standing items will alone consti deposits. bank by the offense denounced tute the statute. alleged the con- the indictment As Edwards v. United (1) ap- property are: Cir., 1959). In view of such rule of cealed (2) $45,000; receiv- sufficiency loan proximately will first consider law we in the sum of Mildred Corvino from evidence as it able relates to the first (3) a note in Bisno’s interest in item of described in $8,200; indict by to-wit, ment, Dow and approximately Wilbur sum of sum August 13, 1955, $45,000. item, Dow, to this Item A dated Wilma particulars upon apart- by deed an the bill furnished in a trust interest his alleges building Vegas, Nevada, January that between in Las Government ment April 5, 1956, security deed was received trust which payment note; $107,404.04 and disbursed Bisno’s in- from said said only $60,004.18, leaving amount parcel of land known as Sun- an a terest $47,399.86 Vegas, Nevada, which amount unaccounted Las Manor set anywhere proof approximate in the schedules. In value of had interest mortgage item, the Government offered this the tes (5) a chattel $8,000; agent timony Earl, Grant a F.B.I. fix- who furniture and $35,000 on the sum accounting. Bisno’s first contention is testified Earl speciali2;es in accounting $47,399.86 records unreliable are so sum at the arrived that he accounting testimony Earl must be com examining books after following pletely support sev- discounted. checks and cancelled contention testi- our attention is directed Earl Bisno. eral conferences by certain isolated remarks made Earl item computations item fied to suggesting deficiencies in Bisno’s ac arrived at precisely he how indicated counting methods and of simi figures. above import Finkelman, lar one who com- $107,404.04 Earl From the up Bisno’s accountant find 1955. We received puted amount the total contention without merit. April 1, 1956, January Earl’s stands unrebutted in the 1956, $92,504.18 evidenced record. is abundant evidence in There checks cancelled also book but entries the record to show that Bisno received These copies photostatic thereof. alleged by disbursed the amounts totaling checks three of: checks consist particulars. Government in the bill of late De- $45,000, Marks in issued one The between such amounts is difference cember, 1955, payable and en- to Bisno figure by rounded off the Government $11,000 him; by is- one check dorsed $45,000 the indictment which Bisno December, by in late sued one Wolonow received and did not disburse. Such by and endorsed payable to Bisno appear amount does not on the schedules $36,504.18 him; marked check for one explanation appears and no as to where Long by the payable escrow held out of an except unsup went such amount Bisno’s February dated Bank Beach National gambling ported of estimate losses. Abrams, a nominee payable Anne Even under such estimate such losses to Combined over endorsed ($300 per would not total over $4050 n Inc;, corporation Pictures, Television weeks). week for The evidence 13% bearing by and Bisno’s controlled by receipt showed Bisno of a substantial remaining mak- The endorsement. money in amount of excess of disburse by ing up Earl are arrived at the total immediately prior bankruptcy, ments and memo- book entries evidenced being such amount far excess of the randa. reasonably amount which ex pected expended living expenses. $60,004 to be al- total An examination appears liberality explanation No as to shows where the for disbursements lowed money Thus, $45,000 went. From such from evidence the Bisno. toward Marks, jury is entitled to infer that a disbursement of such from amount received possession in the Marks from Bisno was was Bisno and him back knowingly although fraudulently and neither a evidenced concealed allowed States, from the Noell v. only by trustee. entry nor a check but state- book (9th Cir.1950). 183 F.2d also See and Bisno. From the es- of Marks ments (9th Arine v. United 10 F.2d $36,504.18, $20,504.18 check crow Cir.1926); Wodiska, United States v. gone entry to have into a book shown (2nd Cir.1945); Cohen F.2d v. United was allowed as a dis- business Cir.1933). 67 F.2d Bis- $8,000 in cashiers’ Also bursement. no’s attack on foundation laid for allowed as a was disbursement checks testimony goes weight Earl’s and reappears in This item con- Bisno. Jules admissibility. alleged Item with C the bill nection Eight particulars. thousand dollars our view the evidence above review- standing alone, ed, cheeks was is sufficient allowed as a dis- cashiers’ sustain single Sally Bisno, wife Bisno’s conviction of Bisno. offense bursement knowingly fraudulently reappears concealing and connection item This alleged G, property belonging the trustee F and the bill of Items bankrupt particulars, estate. lyzed by jury composed persons in re- are Briefs filed on behalf of Bisno ordinary “misconduct,” charges walks life. dundant with n ‘over-prosecution” “prejudice.” Bis- and light contentions, of such we have no’s contention is that the Government pictured painstaking made a review of the record fraudulent, “nor- transactions relating remaining to the nine big promoter, mal” to a time real estate property which the Government contends “irrelevant” transac- reference to knowingly fraudulently were likewise tions, painted around an aura of fraud review, From are concealed. such we “unsophisti- Bisno which distracted satisfied the evidence offered specific issues be- cated” from the relating Government other items it, leading “in- a verdict fore thus material, relevant, by passion prejudice.” flamed abundantly charges supports the con- allega- tained in indictment and charges “mis We find Bisno’s particulars. tions in the bill of prejudice” conduct and The unfounded. complex. trial facts in the ease The are appears It to us that it un would are lasted five weeks. The exhibits necessarily opinion extend this to an un transcript testi voluminous length, due were we to summarize all of mony 2,000 pages. totals The re over abundantly the evidence which substan marks of Government counsel were charges. tiates such con inflammatory the whole or over-zeal sists of the of numerous wit remarks, diligently ous. Those few ex nesses, voluminous exhibits the form separate places tracted from tran account, of Bisno’s books of cancelled script, which characterized as cheeks, legal correspondence and docu clearly improper come within the follow ments all taken from Bisno’s business ing Court, Supreme admonitions of the files, pertaining and all alleged to the transac particularly appropriate: which are tions indictment and bill of every by “If remark made counsel totality particulars. The of the evidence outside of were relating transaction, pieced to each when ground reversal, comparatively for a together, convincingly establishes the stand, since, few verdicts would commission of the offense in re advocacy of the ardor and in ex- spect to each transaction. trial, of citement even the most ex- evidence, In our examination of the we occasionally perienced counsel are recurring patterns have noticed some away by temptation.” carried which merit comment. Bisno did not Dunlop United 165 U.S. legal specified have title to several of the 498, 375, 379, 17 41 L.Ed. S.Ct. property items of on the date bank- (1897). 799 ruptcy filed, or when his schedules were long “The trial was and the inci- diligent yet by tracing and assiduous by petitioners few. relied dents funds, the Government’s evidence es- guard magnifi- must items, that such tablished ruptcy, after bank- appeal of instances which cation up wound one form or another importance little in their were through who dealt nominees. setting.” Glasser v. United they These nominees testified that dummies, were 457, 471, 86 U.S. 315 no had interest in the items to (1942). L.Ed. they legal only held title and acted further contends that in accordance with Bisno the Gov- Bisno’s instructions. guilty “over-prosecution” disclosesthat was Bisno directed ernment “prejudiced” by every super- Bisno was act nominees and negotiated testimony which, by irrelevant vised transactions in rela- mass weight, such items so crushed Bisno and that such which tion sheer places arrive alt could not be followed and ana- would in filing initiating petition re- bank- purposes. of ruptcy proceeding forms which suited prop- wher- spect to all documents of concealed to several items A relating property. ever erty, partial located disclosure. Bisno made Bankruptcy re- full disclosure “document” as failure make used Such book, deed, “any interest Act shall sulted in concealment of Bisno’s include writing.” less have led Title U.S.C.A. in such items and would suspicious strument Dutcher, 1(13). fur- refrain from See also Babbitt v. trustee investigation. ther 54 L.Ed. (1910). A the introduc- foundation for laid to review record has Our tion of said was laid a witness exhibits rest merit in Bisno’s contention employed by who was tary Bisno a secre- fatally the Government contaminated February, 1955, date until the entire case of irrelevant introduction of the trial. testified This witness beyond scope prejudicial matters outgoing green copies corre- blue particu- bill the indictment and the spondence persons and other clearly lars. To our minds the evidence working ain in his maintained officewere compre- shows that on a Bisno embarked chronological The witness identified file. hensive scheme to conceal substantial material contained said exhibits part en- of his from the trustee assets chronological constituting file. deavoring appear as- to make it that such admissibility Bisno attacks the belonged sets him not to but to others. grounds. of said on several exhibits Finally, our com- view of First, Bisno that said exhibits contends pletely destroys principal ad- defense “subject protective provisions were trial, vanced Fourth, Amend Fifth and Sixth that he did ac- the best he could without ments of the Constitution of the United counting help disclose what remained rights Bis- It is clear that no States.” of a any and that shattered business structure the Fourth Amend no under Sixth which he in The records violated. ment failed disclose resulted from inadvert- were not from Bisno volved recovered knowingly and were not and fraudu- ence any or kind vested a search but seizure lently concealed. by bankruptcy operation in the trustee in We will now consider other contentions filing law as of the date may appeal, raised sum- rights petition bankruptcy. un Hence marized as follows: That the District not in der the Fourth Amendment are (1) prejudicial Court committed error: receipt in said evidence of volved. receiving in evidence over ob- any is not shown to be'related in exhibits jections Government’s 58A-65A exhibits rights by guaranteed way to Sixth inclusive; (2) in the refusal cer- to respect to Fifth Amendment. Bisno; by tain instructions Amendment, is contends that he refusing require the return rights against assert the self- entitled to special by respect a verdict guaranteed by Fifth incrimination each ten transactions set forth production to the Amendment specifications in the indictment. These ground is records on that he such will be considered ad seriatim. by required law turn over such records The exhibits 58A-65A cor- and cannot so. consist of the trustee refuse do respondence analogy files Bisno and formed a to draw between Bisno seeks part compulsory of his business records and the testi which were this situation by acquired by required bankrupt bankruptcy mony the trustee in is operation 21, 110, 11 of law. Title 11 sub. a exami U.S.C.A. Title U.S.C.A. § in a § provides expressly pertinent parts sub. a is that Such nation. proceeding bankrupt the trustee of in a criminal the estate a from use Bankruptcy barred by (Title operation by shall Act itself. 11 be vested of law with (10).) bankrupt Bisno’s con- the title of a sub. of the date U.S.C.A. entry otherwise, in a book or tention In Johnson as a is foreclosed. made any act, memorandum action, or record of trans- * * * (1913) appears occurrence, 57 ing language: L.Ed. the follow- or events regular if made in the course of busi- ness, regular and if it was course of pro- party privileged “A is from such business make such memorandum ducing from its the evidence but not act, or record at the trans- time by production. bank- The transfer action, occurrence, or event or within ruptcy is no a transfer different from reasonable mere time thereafter.” The a con- execution of a volume fact that the memoranda from taken fly fession It is written on the leaf. chronological files of let- are in form protect held criminal cannot operate ters does not the mate- to remove legal by getting himself corporate title to rial in Exhibits the Offi- 58A-65A from omit- books. [Citations cial Records Act. the fact Neither does proposition ted] But the is converse that some of the written letters not may keep true, no means he admissibility Bisno himself affect the protection the introduction from act, such letters under since documentary that he provides “all act other circumstances of it, would had while retained have he making writing record, the cluding of such possession after the title and knowledge personal lack of gone to some else. one maker, may entrant or be shown affect is true “It that the transfer of the weight, but such circumstances shall against books have been the de- admissibility.” not affect its areWe will, compelled fendant’s but it admissibility aware that the of evidence necessary law as a incident under the OfficialRecords Act is not es- property, distribution of merely tablished because the material order to obtain criminal evidence sought to be introduced has taken been against course, him. Of man can- from business file. A foundation must protect being be laid to establish the memoranda attaching pay used to his debts sought to be introduced were made in the it disclosure crime. If the docu- regular Otherwise, course of business. mentary confession comes a third is not admissible. Nieder- intuitu, did, hand alio as this the use R., (9th krome v. C. F.2d I. Cir. compel of it in court does not the de- 1958); Company Standard Oil of Cali- fendant to a witness him- Moore, fornia v. Cir. self.” 228 U.S. 33 S.Ct. 572. 1958). There that said ex- chronological place, from

In the hibits came files second Bisno con de- signed correspondence preserve of tends that some the in to all record of out- him, going correspondence said exhibits was not written from Bisno’s office argues letters, distinguished regularly that files and that such main- entries, of records events book secretary. tained Bisno’s Sufficient exception not admissible an are to the permit receipt was laid foundation the to hearsay permitted by rule the Official recog- exhibits into of such evidence. We Act, Records types U.S.C.A. 1732. Title nize that certain of records are not position Bisno’s that It is “Official the under admissible the OfficialRecords Act does regularly Records Act not extend to documents if even maintained. See Pal- simply purport recitals, Hoffman, to which like v. mer kept 477, those are not 87 L.Ed. letters. And records In re Hol- Inc., (7th Sons, zapfel’s 249 F.2d due course of business in at all.” the We Cir. regard pointed nothing 1957). the Official Bisno has do not Records Act as being permits or of so restrictive. This act the form substance the the about spondence corre- “any appearing into evidence of Exhibits introduction writ 58A- record, ing or an which removes it from whether form of 65A the ambit the of yond places doubt, out- de- reasonable the or the Records Act Official may produce hear- fendant exceptions to elect no evi- policy side the all, dence say prose- contemplated act. if that he feels rule cution has not carried its burden con place, Bisno In the third respect.” court the trial it was error tends that “Where circumstantial is evidence ex of said permit the introduction presented, use evidence to of such under masse. hibits en He contends support guilty proper a verdict of is court trial Act Records Official only where such circumstantial evi- upon the separately required is admissibility to rule dence is inconsistent with innocence which document each guilt and consistent with the com part While said exhibits. the accused.” many plains contain that said exhibits point writings, failed validity has “The irrelvant he of the Trust’ ‘Bisno any exhibits in said question material is not an out issue here. The further He be irrelevant. claims whether he or not the creditors masse en contends that the introduction the defendant Moulin or prejudiced Rouge him nothing paid, exhibits will be do has point jury. eyes he fails Yet of the with this case.” exhibits material in said out re connection erroneously influenced misled quested relating instruction advice to the on jury. In his attack the verdict counsel, evidence discloses cer ruling Bisno relies of the court engaged Bisno ney the services of an attor language in Schmeller tain States, prepare Bis- the schedules filed Cir.1941). We F.2d 544 attorney no. The testified that he was in- and find it such case have examined any prop never asked Bisno conceal case. apposite the instant to the facts of erty and that when he was about doubt suggests that some While Bisno any particular item, the status he exhibits in said documents contained would mention such item and let the transactions draw trustee He his own conclusions. utterly indictment, failed to he has further testified that due to extensive specify what such documents operations nature of Bisno’s documents. prejudicial of such nature inability to hire accountant task no case of this find under the facts preparing very the schedules was diffi rights of Bisno prejudicial to error attorney cult. The in his did admission of said 58A- Exhibits allegedly mention some of the assets pursuant business to the 65A as records concealed Bisno. There no Official Records Act. in the record that assets which were not instructions which mentioned schedules were omitted district court and which the refused attorney’s up because advice based give are: knowledge full of all material facts. by bankrupt upon “The reliance foregoing may constitute While some attorney or of an an ac- the advice good faith, it evidence falls short of by you is to be considered countant proof required justify minimum an an in defendant’s de- as element relating to instruction advice counsel. fense.” requested instruction The not com plete are to statement of defense to “You draw no adverse infer- which may have been from the fact that entitled. defendant Advice ences regarded argued not, separate is not as a counsel for the did of counsel but prosecution, introduce distinct defense rather as a and cir indicating good faith in this case. The certain evidence cumstance proof upon of fact is entitled to is at all times trier consider burden prosecution prove of fraudulent the issue intent. case be- The negating most that counsel as a an accused is entitled to fraud- cii’cumstance only requested relating showing upon ulent advice intent instruction v. Bisno of counsel a full is set forth in Williamson made of all rele- disclosure page attorney, vant and at material to his facts jury page L.Ed. 278 nor is cautioned such de- (1908), only fense is raised wherein the court stated: if counselhad advised that, law, aas matter of he “Having you placed now before required not to include in his schedules law, de- timber and nounces, what stone and it specific jury items which found permits, and if a what it general had been concealed. Under the honestly good man faith seeks and given by instruction court on the district lawyer of a as to what he advice specific intent, was entitled to loaning lawfully indo the matter of consider the of Bisno’s counsel money applicants it, and under for what it was worth and more. We fully honestly lays and all facts find no error in the refusal re- counsel, good before his and in faith quested instruction. honestly advice, and follows such relying believing upon requested it and to the instruction correct, concerning and be intends of Bisno’s wife to failure lawful, testify acts shall be he could not it is to be noted neither she convicted of Appropriate crime which involves nor Bisno testified. instruc- intent; concerning wilful and unlawful even if tions the failure Bisno to testify given. such advice were inaccurate con- But, struction of the law. propriety instruc- wilfully hand, other knowingly no man can tion arises in relation to two law, ex- violate property set forth indictment. consequences cuse himself from the $2,000 pay- These items are a note made by pleading thereof that he followed able to Bisno’s wife cashier’s $2500 the advice of counsel.” payable her, check made which items Merritt, See also re represented proceeds of the sale Cir.1928). Hotel, the Parkview title which stood testify Since Bisno did as wit- record in the name of Bisno’s wife. case, ness in the record is silent The Government introduced sought good to whether he faith the form of a memorandum taken fully honestly advice of counsel and pur- Bisno’s business files that Bisno laid all of the facts before his counsel chased his wife’s interest in these assets good honestly and in faith upon delivery followed to her of in cashier’s believing advice, relying upon it and posi- checks. It was the Government’s Moreover, toit be correct. advice of belonged property tion that these counsel has been held be no defense in to Bisno. Bisno maintains he should not gen- a situation in which the accused is concealment assets to erally advised counsel but counsel is which his wife had title. Bisno made no specific not shown to have advised the attempt to call his wife as a witness on action with course the accused behalf to rebut evidence that his wife v, charged. See United States McCor- rights had transferred her in such items mick, (2 Cir.1933); 67 F.2d McNiel to Bisno for consideration. (5 Cir.1907). v. United 150 F. Counsel for the Government commented testify. on the failure Bisno’s wife to Even if the facts in this case giving justified the question In instruction on order to resolve the as to counsel, requested propriety advice the instruc the of the refusal of the district completely inadequate. is instruction, tion the re court to the quested development instruction the is not ad we must review the of the subject. vised that it should consider advice of law on this In Graves v. United

721 may interpreted L.Ed. be the courts 118,14 States, light the United States in the of rea- on trial (1893), the accused experience.” son that the There was murder. company with was seen accused’s wife Following guideline, this federal person to claimed and the the accused have courts garding further refined the rules re near the scene murdered have been competency a of an of wife did not the accused murder. The wife testify accused to in a criminal case. appear in the courtroom. a witness as Thus, although competent a wife is now on her commented counsel Government testify, to the accused husband retains presence in absence, pointing that her out privilege the testify to refuse to allow her to might aided wit- have the courtroom against agree him even if she identifying The the accused. nesses doing able to so. Hawkins' v. United recognized existence Supreme Court States, 358 U.S. 79 S.Ct. 3 L.Ed. party “if a law rule that common (1958). privi 2d 125 lege The wife also has a produce power to peculiarly has it testify, not to and she exercise eluci- would whose witnesses privilege by refusing testify this to either transaction, he does fact that date the against for or her husband. Mills v. presumption that do it creates States, (4 Cir.1960). 281 F.2d 736 testimony, produced, un- be if would Applying present these rules to the favorable.” situation, appears it that the Government Court, however, Supreme restrict- The could tify have called Bisno’s to tes- wife are com- to who ed rule witnesses this objections. over his On other testify. law petent Under common to hand, Bisno’s wife could have testified at the in federal courts rules in effect behalf but Bisno could not have case, a wife was time of the Graves compelled so, her do to since she could testify competent to her husband testify refused to at all. Since Supreme The trial. Court criminal record any request silent as to whether made Bisno have commented on held it was error to testify him, that his wife from the courtroom. wife’s absence is not it known whether she would have willing do been to so. competency rules as to testify turnWe now to accused in a trial in- of an wife consideration of governing changed volving non-pro- rules comment on husband have since her of a duction In Funk United U. witness. See United Graves. v. States (1933), Jackson, (3 Cir.1958). v. 257 F.2d 41 L.Ed. 369 S. Supreme (9 held that a wife is Samish United Court testify Cir.1955), competent prose- on behalf her hus- this circuit held that in that a criminal trial. The court char- cutor case could comment band on de- secretary rule acterized the new as a modification fendant’s failure call his changed testify behalf, law rule due to on his of common con- since the close asso- secretary noted ditions. The court that there was ciation with the defend- pertaining made it ant unreasonable no federal the mat- consider her statute a neutral witness. ter. This view of the function federal court fashion rules We thus have situation where comports with Federal Rules of Criminal reasonably expected Procedure, 26, U.S.C.A., Rule subse- testimony of Bisno’s would wife be favor enacted, provides quently part: but where the able Government admissibility right call her as “The evidence and witness over has no privileges objection. competency Thus wit- situation governed, phraseology shall except nesses of the narrower rule fits the Congress when an act of in Graves that Bisno “had it announced these power produce” provide, prin- peculiarly within his rules otherwise argues ciples they of the common as a witness. law his wife power to testimonial evidence. within his Admit- he did not it have tedly, may testify favor circumstantial in his evidence compel to his wife testify point wholly some a cases to incor- refused to have she because could equally rect Yet this is true should result. and, therefore, trial court the his testimonial evidence. both in- on permitted comment adverse have legally stances, jury weigh a asked is the do an act failure to correctly argument chances the impossible This do. for him to points guilt possibility his had called merit if inaccuracy ambiguous testify had re- infer- him and she wife to both, jury attempt ence. must use made no fused to do so. experience people with and events and therefore his wife as witness call weighing probabilities. de- argument If the too much. his assumes jury beyond is convinced testify her husband reason- cision to on behalf doubt, require able can solely do not we no more.” wife. We rested with (348 rely pages privilege, at U.S. on can believe that Bisno pages 138) ad- wife, defeat personal in order to to his is It Government. comment verse Baking See also Continental Co.v. United with in connection to be remembex-ed States, (6th Cir.1960) ex- check above-men- the note and cashier’s pressly overruling prior authority using charged with Bisno was tioned contrary light circuit in the 6th wife to conceal association with his above rule stated Holland. haveWe If such items items from the trustee. given examined the instructions on belonged property in truth subject of reasonable doubt and find that wife, then hers could no better adequately such instructions cover on behalf of Bisno. have been secured subject. find no We error in the refusal any attempt make of Bisno to give The failure requested instruction. produce when he alone her requested In connection with the proper opportunity to do so awas had the concerning instruction “Bisno subject to make We wish of comment. Trusts,” gave we find that the court Bisno’s wife was clear this case that following instruction: on his behalf and as a witness not called only you “The issues before are privilege refuse to her did not exercise specifically spelled those out in the testify. indictment, plea and the of not consider the re now guilty.” We will on circumstantial evi quested instruction give The refusal of the district court to v. United dence. In Holland requested proper instruction was L.Ed. 150 giving negative of the case, (1954), the tax court a tax evasion struction could have served con- of the trial court refusal considered the jury. fuse the and stated similar instruction Finally, is it Bisno’s contention as follows: the rule process that he was denied due of law be support for this “There some cause quire refusal the court to re type in the lower court instruction jury special to render a verdict omitted], but [citations decisions as to each ten property rule is that where the better concealing. which Bisno was properly stand- instructed is already noted We have conceal doubt, such for reasonable ards from a ment assets trustee in bank on circumstan- instruction additional single ruptcy is a offense no matter how confusing and incor- tial many have been omitted.] rect.” [Citations Edwards United concealed. su authority pra. no know of evidence in which re “Circumstantial special intrinsically quires no return verdicts different waiving jury was single own behalf without these The indictment. count privileges guilty as to her could cross-examination. verdict that instructed Wigmore McNaughton Evidence, VII agreement unanimous if returned Revision, 2242(3), page least 258. § at concealed were reached that appellant’s Thus failure call his wife mentioned items one of the represents as a that witness an presume exercise of cannot the indictment. privileges. these disregarded jury instruction. the privilege Where such affirmed. has been exer- judgment conviction The cised, principle per- the established Judge (concurring). HAMLEY, Circuit mits an inference that the excluded testi- concerning ma- My only question mony party would be unfavorable to the husband- jority opinion to do with has suppressed ought being who yield, it question. privilege wife full inconsistent exercise privilege. prop- Wigmore, supra, 2243, See specific of the ten Two page my view, therefore, 259. allegedly note of the trial erty awere concealed given court requested should have in- Hotel in the sum Exeter Sally struction. 20,1955, payable to dated December express sum I cashier’s check no view as and a to whether the privilege drawn spouse $2,500, dated December enables either Beverly America, Drive testimony by exclude anti-marital Bank of fact Branch, payable retained, “A1Bis- other should be since in and Wilshire Referring Sally these Hawkins v. United Bisno.” no or argument Supreme 3 L.Ed.2d in his rebuttal long said: Court ruled in jury, has for the Government favor. As counsel recognized privilege ought $2,500.00cashier’s check “The substantially by per- to be undermined money Exeter into the that went mitting, exercise, in connection with its appel- Strong Hotel, Mr. [counsel the usual inference with to the Sally’s is all states this lant] produce failure to available I evidence. Sally [appellant’s What did wife]. agree majority privilege with the that the say anything. Sally say? didn’t spouse non-party to refuse to tes- testify.” in court and did not sat She tify (see States, Cir., Mills v. United remark, coun- offset this effort 736), presents problem 281 F.2d no proposed appellant then the follow- sel for that in the reason so far as the record re- ing jury instruction: veals, appellant attempt made no to call are to draw no adverse in- “You her. the fact that defend- ferences Notwithstanding expressed the view testify did not wife this ant’s requested above that instruction * * *” trial. given, I should have been would affirm. give in- The trial court refused to this The wife’s would have been argues appellant struction only as to two of relevant the ten items majority opinion The was error. ex- single-count on which indictment was view that presses the the court did not overwhelmingly based. evidence so regard. err in this supports the Government’s case as to the disagree. respectfully Appellant’s eight I safely items that other it can be permit privilege not to his wife to be concluded would have against witness, him pos- as a called sibly same verdict on reached general, the count in privilege requested her disclosure whether or not given. husband-wife communications were had been struction Failure despite here the fact therefore, involved that the instruction my prosecution opinion, did not seek to'call harmless her as a error. See Rule 52(a) This is true for the witness. reason Federal Rules of Criminal Proce- dure, appellant could not her as a call witness U.S.C.A.

Case Details

Case Name: Alexander Bisno v. United States

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jan 31, 1962

Citation: 299 F.2d 711

Docket Number: 17239_1

Court Abbreviation: 9th Cir.