The opinion of the court was delivered by: MURPHY
The question for decision is a motion to dismiss an indictment which charges defendant with a violation of 11 U.S.C.A. § 52, subs. b(1) and b(6) (July 1, 1898, c. 541, Section 29, 30 Stat. 554, as amended May 27, 1926, c. 406, Section 11, 44 Stat. 665, June 22, 1938, c. 575, Section 1, 52 Stat. 855).
b(1) reads inter alia as follows: 'having knowingly and fraudulently (1) concealed from the * * * trustee * * * any property belonging to the estate of a bankrupt'.
b(6) 'While an agent or officer of any person or corporation, and in contemplation of a proceeding under this title by or against such person or corporation, or with intent to defeat this title, concealed or, with or without concealment, transferred any of the property of such person or corporation.'
The statute of limitations for the foregoing is set forth in Section 52, sub. d: 'A person shall not be prosecuted for any offense arising under this title unless the indictment is found * * * within three years after the commission of the offense: Provided, That the offense of concealment of assets of a bankrupt shall be deemed to be a continuing offense until the bankrupt shall have been finally discharged, and the period of limitations herein provided shall not begin to run until such final discharge.'
After an involuntary petition in bankruptcy was filed against defendant on June 15, 1938, defendant was adjudicated a bankrupt. The indictment returned October 22, 1946, charges defendant with having on or about August 15, 1938, concealed from the trustee in bankruptcy certain specified personal property of the bankrupt estate; that the concealment continued up to the date of the indictment; that defendant acted with intent to defeat the provisions of the Bankruptcy Act, 11 U.S.C.A. § 52, sub. b(1, 6); finally, that defendant had not up to the date of indictment received a final discharge in bankruptcy.
Defendant moved to dismiss the indictment on the ground that (1) prosecution is barred by the statute of limitation; (2) the amendment to the statute of limitations does not apply to all debtors equally; (3) the amendment is an ex post facto law; (4) the indictment does not charge an offense against the United States.
An examination of the indictment shows the date of the alleged concealment as commencing August 15, 1938, and that the concealment continued up to the date of the indictment. Further that defendant did not up to the date of the indictment receive a final discharge. Those allegations charge an offense, to wit, violation of 11 U.S.C.A. § 52, sub. b(1, 6).
Defendant argues that the statute of limitations had expired long before the date of the indictment; that although the bankruptcy proceedings were pending when the Chandler Act of 1938 went into effect on September 22, 1938, the proviso of Section 52, sub. d, should not affect proceedings then pending. Says defendant, if it did affect the proceedings it was an ex post facto law and invalid; also because it did not treat all debtors alike. With this we cannot agree.
When a right of acquittal has not been absolutely acquired by the completion of the period of limitation, that period is subject to enlargement without being obnoxious to the constitutional prohibition against ex post facto laws.
Such an extension makes no change in the rules of evidence or quantum of proof. An act of limitation is an act of grace purely on the part of the sovereign and especially is this so in the matter of criminal prosecution. Such enactments are measures of public policy. They are entirely subject to the will of Congress. Commonwealth v. Duffy, 96 Pa. 506, 42 Am.Rep. 554; Moore v. State, 43 N.J.L. 203, at page 213, 39 Am.Rep. 558; Falter v. United States, 2 Cir., 23 F.2d, at page 425, opinion by Judge Learned Hand; United States v. Nazzaro, D.C.S.D.N.Y. March 14, 1946, 65 F.Supp. 456; United States v. Newman, D.C.S.D.N.Y. June 7, 1945, 63 F.Supp. 269; United States v. Fraidin, D.C.D. Md. October 27, 1945, 63 F.Supp. 271, at page 276.
Defendant complains that the amendment does not apply to all debtors equally. It was within the right and power of congress to make such a classification. Certainly it applies with equal force to all within the classification therein specified. The Bankruptcy Act was intended to cover completely all matters of discharges and the circumstances under which they might be granted. Davis v. Pringle, 4 Cir., 1924, 1 F.2d 860, at page 862.
Hanover Nat. Bank v. Moyses, 186 U.S. 181, at page 192, 22 S. Ct. 857, 862, 46 L. Ed. 1113, 'Congress may prescribe any regulations concerning discharge in bankruptcy that are not so grossly unreasonable as to be incompatible with fundamental law * * * .' Defendant's brief refers only to United States v. Fraidin, supra, as aid to his contention. See however that opinion, 63 F.Supp.at page 283.
Defendant points to nothing by way of citation of authority or argument to convince us that the classification made in 29 sub. d,
was illegal or unconstitutional.
Defendant finally relies upon the case of United States v. Fraidin, supra, and particularly the reasoning and conclusion of that court. Confronted with a situation similar to that before us, the court in a very learned and exhaustive opinion referred to the discussion in 2 Collier on Bankruptcy, 14th Ed., Section 29.15, p. 1206, where the author in discussing Section 29, sub. d, states: 'Now the period of limitations is governed completely by events outside the acts of the defendant in concealing his property, namely, discharge. In view of the fact that a discharge might be refused because there was concealment, or for numerous other reasons, it is quite possible that the period in which an indictment could be brought for concealment of assets might run interminably. It would seem that the general objective sought by the proviso could have been attained by making the concealment of assets a continuing offense until discharge or denial thereof.' (Italics supplied.) It will be noted that the author states that 'the general objective sought by the proviso could have been attained by making the ...