United States v. Licht

SWAN, Circuit Judge.

The offenses of which the appellants have been convicted were committed in connection with the bankruptcy of H. J. Licht, Inc., which was adjudicated upon an involuntary petition filed on November 25, 1941. This company was engaged in the business of manufacturing and selling fur coats; Bernard Licht was its president, his brother Herman was secretary-treasurer and their father, Harry Licht, occasionally helped in the business. On liquidation of the bankrupt’s estate only about $400 was realized; its debts were about $25,000. The shortage was explained by the appellants as the result of an alleged burglary on November 11, 1941, in which coats and skins of the value of some $26,000 were stolen from a store which Harry Licht had rented for the company at 337 West 17th Street in New York City. The Government contended that the alleged burglary was a fiction which the appellants had planned and executed as a means of secreting the “stolen” merchandise in contemplation of bankruptcy. The trial judge charged that unless the jury was convinced beyond a reasonable doubt that “a false burglary was staged” the defendants must be acquitted. The verdict resolved this issue adversely to the appellants and their main contention upon this, appeal is that the evidence is not sufficient to support the verdict.

From the very nature of the case the Government had to make its proof by circumstantial evidence. In a charge of the utmost fairness, to which neither side took any exception, the trial judge reviewed the evidence and the respective contentions of the prosecution and the defense as to what it proved. We shall not again review it in detail but shall refer briefly to some of the suspicious circumstances which tend to support the jury’s inference. The accused explained that they had taken the store on West 17th Street, which was outside the fur district, because labor troubles interfered with business fit their regular factory and show-room at 307 Seventh Avenue; but the labor union had ceased picketing about one month after the store was rented and five months before the burglary. The store was divided into a front room and a back room and from the latter a door led into a toilet at the end of the hall. It had been the practice of the fur finisher Tassa, who occupied the store on the other side of the hall, to enter the back room through the door from the toilet. Shortly before the burglary, Tussa was told that he could no longer enter the back room because the door had to be kept locked on account of the accumulation of fur coats in the back room; but Tassa testified that in fact the door had previously been kept locked and was opened to him only when he knocked. The coats were said to be stored in cartons which was contrary to the trade practice of hanging coats from racks to preserve their shape. Expert testimony was introduced tending to prove that the door from the toilet through which the burglars were supposed to have gained entry could not have been forced open in the manner in which it appeared to have been forced. If this was believed, the jury could have inferred that the burglary was an “inside job.” And. their suspicions would not have been lessened by the fact that the “burglars” went to the trouble of removing from the cartons 990 coats and 10,000 dyed rabbit skins, leaving the cartons scattered about, instead of taking the cartons and their contents. Moreover, shortly before the burglary the accused collected two of their largest accounts receivable before they were due and arranged to pay certain favored creditors. Herman Licht went to Chicago, collected a bill of $3,160.03 on November 7, 1941 and telephoned his brother in New York to' advise holders of the company’s outstanding checks to deposit them. On November 10th an additional sum of $1,991.07, the proceeds of another account collected before it was due, was deposited in the company’s bank account; and on the same date there were charged against it checks aggregating $4,105, the larger part of which represented payment to Licht relatives. Thus the company was left with practically no liquid assets, although it had notes in large amounts shortly to mature: $7,200 between November 15 .and the end of the month, $8,621 in December, and $2,787 in January 1942. In the face of the foregoing and of other evidence, to which we have not referred specifically, we think that this was typically a case for the jury and that its verdict is sustainable.

Error is assigned to the admission of the testimony of George A. Berly, called as an expert witness as to the condition of the door and lock, his first examination of which was not made until October 13, 1943. However, a proper foundation was laid for the admission of his testimony. Detective Grojean identified photographs as portraying the door and lock as he saw them immediately after the burglary and Berly identified .the same photographs as showing the door and lock he examined. Whether his testimony was inconsistent, as the appellants contend, and .how much weight to give it were matters for the jury.

Finally complaint is made regarding the prosecutor’s summation to the jury. He said with reference to Bernard Licht “I think he lied in putting in answers on his questionnaire * * *” When counsel objected that the court had excluded that, the judge said he had done so and instructed the jury to disregard the argument. While the court had excluded as immaterial evidence of falsification in the questionnaire as to Bernard’s physical condition, it had permitted cross-examination on the more vital issue as to whether Bernard had there falsely claimed that he was the sole support of his parents — more vital because of the Government’s claim that the father, Harry Licht, participated in the business. When the court stopped the prosecutor in his summation, it seems probable that the court had in mind the issue as to the physical condition only; if, however, the court did intend to rule more broadly, it was the court which was then in error because of faulty recollection of the testimony. The court’s earlier rulings on evidence were correct, for obviously testimony as to whether Bernard had lied as to his father’s status on the questionnaire was both relevant and highly important as to his credibility, as well as in connection with the issue of the father’s connection with the business. Again, to meet defense counsel’s appeal to the jury not to destroy all the male members of the Licht family by a verdict of guilt, the prosecutor said:

“A lot has gone on since December 1941. It is unfortunate to see a father and two sons on trial. I do not think you will waste any crocodile tears over the fact that in this particular case we have a father and two sons on trial. A lot more tragic and horrible things have happened-^-”

Thereupon counsel objected that the statement was improper, “dragging the war into this case.” The judge made no ruling on the objection but directed the prosecutor to “Go ahead and sum up.” The prosecutor’s remark was intended to counteract defense counsel’s emotional appeal, several times repeated, not to destroy the ac-cuseds’ family. As to other objections it is sufficient to say that incidental references to the war, just as to other facts of contemporary history, cannot be improper of themselves alone when not intended as inflammatory and having pertinency to the facts as developed in the record.

Judgment affirmed.