The defendants have been convicted under an indictment which charged them with the commission of two independent crimes. The first count charged them with a conspiracy to commit the crime. The second count charged them with the actual commission of the substantive crime which they are charged with having conspired to commit. So far as the first count is concerned, the conspiracy alleged is one to commit an offense against the United States in violation of section 37 of the Criminal Code, which reads as follows:
“If two or more persons conspire either to commit any offense against the United States, or to defraud the United States in any manner or for any pur*13 pose, and one or more of ■racli parties do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall he fined not more than ion thousand dollars, or imprisoned not more than two years, or both.” U. S. Comp. Statutes, § 10201; Barnes’ Fed. Code (1919) p. 2344, § 9715.
The crime charged in the second count was that of a concealment of assets from a trustee in bankruptcy, in violation of the Bankruptcy Act, § 29b, subd. 1, which declares that:
“A person shall he punished, by imprisonment for a period not to exceed two years, upon conviction of the offense of having knowingly and fraudulently (1) concealed while a bankrupt, or after his discharge, from his trustee any of the property belonging to Ills estate in bankruptcy.” U. S. Comp. St, § 9613; Barnes’ Fed. Code (1919) p. 2103, § 9113.
This case proceeded upon the theory of a conspiracy between the bankrupts Saleen Antoon and Toniic Khoury as co-conspirators and aiders and abetters of the bankrupts to conceal assets from the trustee in bankruptcy. Saleen Antoon and Tonfic Khoury, prior to the early part of 1914, were conducting a partnership and engaged in the business of buying and selling oriental merchandise, consisting of silks, lineas, kimonos, and embroideries, under the trade-name of S. Antoon & Co., with a place of business in Philadelphia, Pa. In May, 1915, the firm removed to New York City. Among its creditors, and the largest creditor of all, was the firm of Samara Bros., which was composed of Saleen Samara and Amen Samara. The firm of Samara Bros, was established in New York City, and it conducted a wholesale business in oriental merchandise. Another creditor was Saleen Balouiin, also engaged in the same business, and with the two Samaras, defendants herein.
The testimony is that in May, 1915, Antoon and Khoury had a conference with the Samaras, at which the Samaras told the bankrupts that they could not pay their debts, and advised them that they ought to buy as much merchandise in the market as they could, immediately sell it at whatever price available, square accounts with them, put the rest of the'money in their pockets, and then declare themselves insolvent; that they later' could conveniently start in business again, since the whole matter would be viewed as nothing out of the ordinary, as everybody usually fails and never has any trouble; and that, if they should accidentally get into trouble, they (the Samaras) would unhesitatingly help them out. Antoon and Khoury did not at that conference agree to the Samara proposition and left, saying they would think it over and let them know what they were willing to do the next day. On the following day Antoon and Khoury called at Samai-a Bros/ place of business and a conversation took place which in substance was as follows:
The Samaras said that they (Antoon and Khoury) were foolish if they did not uo what they had told them to do the day previous; that they should do it, and need not be afraid. Antoon, as a result of their persuasion, assured them that they would do it. The Samaras, upon this assurance, instructed them that they should go ahead and buy as much goods as they could giving them names of dealers from whom they should buy on credit, all of whom were recognized as strong competitors of the Samaras. In addition it was further suggested and decided to
Saleen Samara and Amen Samara had working for them a brother, Elias Samara, one of defendants. As a means of confidential convenience, Antoon sent a great deal of the merchandise that he had bought to Samara Bros.’ place of business, by Elias Samara, in bundles, and on one occasion a large case filled with merchandise through Samara Bros.’ truckman. The Samara Bros, told Antoon that it was necessary to have a bookkeeper fix the books; otherwise, he would go to jail, and thereupon recommended to him one Nicholas G. Mamary, who was immediately employed by S. Antoon. As the payments on the merchandise that was bought began to become due after the expiration of 30 days, Amen Samara called at the place of business of S. Antoon and asked to see his books, and remarked to Antoon that the books would have to show where the merchandise had been sent, in which case it became urgently important that he should malee entries of sales of a fictitious nature. He further told him to call at his house the next day or the day after in the evening, and bring with him the sales book, in order that he might be properly shown how to make and enter the fictitious sales.
As instructed Antoon took the sales book and went to the residence of Amen Samara, and upon arrival found present there Amen, Saleen, and Elias Samara, and Saleen Baloutin, the defendants. It appears that a number of fictitious bills were then made out, amounting to $4,-373.24, more or less. After the fictitious sales had been made out, and the whole matter gone over thoroughly, Saleen and Elias Samara and Saleen Baloutin agreed to call at Antoon’s place of business early next morning and be prepared to take all of the merchandise away, except a few things which they thought it would be advisable to leave, so that the other creditors would see that something was left. This was done as had been agreed. A few days later a petition in bankruptcy was filed against Antoon and Khoury.
Antoon before June 15, 1915, not having disposed of all of his merchandise before June 15, 1915, was instructed by Samara Bros, to ship whatever merchandise he had not disposed of to any town he knew of and leave it there. Antoon acted accordingly and sent Khoury away with three trunks filled with merchandise. All of the merchandise contained in one of the trunks was sold by Khoury while traveling, and the merchandise in the other two trunks was stored by him at Oil City, Pa. On September 1, 1915, Antoon, in talking to Samara Bros, about what should be done with the merchandise contained in the two trunks stored at Oil City, was told to go there and sell as much of it as he could, and that whatever merchandise he could not sell he was to ship to them, and they would sell it for him and give him the proceeds. On September 19, 1915, Antoon went to Oil City, emptied the two trunks that
Immediately following this disposition of the merchandise contained in the trunks, Antoon returned to New York, called upon Samara Bros., and spoke to them concerning the merchandise he had shipped to them from Oil City, and requested the proceeds. In reply, Samara Bros, told Antoon that the money realized from the sale of the merchandise was. just sufficient to cover their claim against him, and refused to give him any of the proceeds. The Samaras filed no proof of claim against the bankrupts mid refused to contribute the 2 per cent, contributed by the other creditors to defray the expenses of recovering the assets.
Upon testimony to the above effect, as well as testimony upon other matters equally condemnatory, the defendants were found guilty as charged. They now seek to have the judgment reversed, alleging 33 assignments of error.
“I at'-Iiod Mm, why did he give goods to Samara Bros., and he left us without anything; so ho did not say anything.” “Ho was just ashamed of us, or something. He did not answer.”
It is, of course, true that nothing said by any one of the defendants, after the conspiracy ended and not in presence of the others, could be properly received in evidence against those not making the admissions. But here the conspiracy was not ended at the time of the admission, or the silence which we have said was tantamount to an admission; and as evidence had been introduced to establish a conspiracy testimony as to the axis and admissions of one of the conspirators during the continuance of the conspiracy was admissible in evidence as against the others.
“The evidence in the case is that Baloutin was not present at the time the alleged oral agreement as to concealing assets was made, nor does it appear the substance was ever communicated to hirm”
No claim is made that Baloutin was present at the inception of the conspiracy; but it is contended, and the testimony supports the contention, that he joined the unlawful agreement while it was in operation. The testimony, if true, shows that he was present at a meeting of the conspirators on June 14, 1915, at Samara’s house, and that he was on that occasion counseling and advising Antoon to make out fictitious bills for the sale of merchandise, to cover the goods given and to be given to the Samaras and to himself. There was evidence, too, that on the following morning Baloutin came early, at 6 o’clock, along with the Samaras, to Antoon’s place of business, and helped to carry away the goods. The janitor of the building testifies to his presence, and to his carrying away of the goods, after a conference with Antoon and the others in the office.
The crime of concealing assets and of conspiring to conceal assets the jury thought had'been established beyond a reasonable doubt, and this court finds no reversible error to have occurred at tire trial.
Judgment affirmed.