The opinion of the court was delivered by: MARSH
The defendant was found guilty by a jury of concealing assets of a bankrupt partnership estate from the receiver in violation of 152, Title 18 U.S.C. This verdict was on the first count of a 7 count indictment. He was acquitted on the other 6 counts and on an indictment charging conspiracy.
He filed timely motions in arrest of judgment and for a new trial. The motion in arrest of judgment was not pressed at argument, and we think the reason set forth is without merit.
Three reasons were pressed for a new trial.
'1. The Court erred in failing to grant the defendant's motion for judgment of acquittal on the ground that the proof in the Government's case was to the effect that the petition in bankruptcy was fraudulent, that the bankruptcy proceedings were invalid, and that, therefore, there could be no crime of concealing assets from a receiver or trustee in bankruptcy.
'2. The Court erred in failing to grant the defendant's request for instructions to the effect that if the jury should find that the petition in bankruptcy was not subscribed to before a notary public, their verdict must be for the defendant.
'3. The Court erred in not granting the defendant a continuance to permit the defendant to produce as a witness Mr. Joseph Burke.'
We think the ruling was within the court's discretion. The fact in issue, viz.: whether the rebuttal witness Passafiume had been present on December 24, 1957, at the residence of defendant's mother, had been thoroughly litigated, Passafiume testifying he had not been present and the defendant's mother testifying that he had been present to collect a fee from her. The truth of this dispute had nothing to do with defendant's innocence or guilt on the first count; it simply was an attack on Passafiume's credibility. Without deciding whether Burke's proffered testimony was admissible for this purpose, we do not think it is incumbent upon a busy court to defer to the convenience of an unsubpoenaed witness who chooses to sleep.
The basis for the first and second reasons for a new trial is that the petitioning creditors failed to comply with 18, sub. c of the Bankruptcy Act
in that, although the petition purports to be verified by a notary public, they did not in fact subscribe to the petition before the notary. As the court recalls the testimony, several creditors of the partnership met with an attorney in the evening of December 10, 1957; that night three of them signed the creditors' petition. The petition was also signed by the attorney and bore the jurat of a notary public dated December 11, 1957, the day it was filed in this court. The notary, who was the secretary of the attorney for the petitioning creditors, was not present at the meeting. One creditor, Villi, testified he signed the petition on December 10th and also on December 11th at the attorney's office; the other two testified that they did not sign before a notary. From this testimony it could be inferred that at least two of the petitioning creditors did not take an oath to the petition in the actual presence of the notary public who attached her jurat.
Defendant contends he thus exposed at trial a jurisdictional defect of which he had no prior knowledge, and consequently the adjudication and appointment of a receiver were void. He, therefore, contends that he could not properly be found guilty of the offense charged in the first count.
He relies on In re Frank, D.C.E.D.Pa.1916, 234 F. 665. This case was affirmed by the Circuit Court at 3 Cir., 1917, 239 F. 709, but that court expressly refused to hold that the defect was jurisdictional. Other cases indicate a defective verification is not jurisdictional and may be amended or waived. Armstrong v. Fernandez, 208 U.S. 324, 28 S. Ct. 419, 52 L. Ed. 514; In re Royal Circle of Friends Bldg. Corporation, 7 Cir., 1947, 159 F.2d 539 (no verification); Green River Deposit Bank v. Craig, D.C.W.D.Ky.1901, 110 F. 137 (one petitioner failed to verify); 8 C.J.S. Bankruptcy § 116; 6 Am.Jur.Rev.Ed. § 233 at page 685; see also cases referred to in 239 F. 709, 710; Collier on Bankruptcy, 14th ed., vol. 2 P18.37, page 84.
Defendant was convicted of concealing only partnership assets from the receiver.
No direct attack on the adjudication was ever made by either debtor, individually or as a partner.
It is our opinion that an adjudication in bankruptcy is presumed to be regular and valid. Edelstein v. United States, 8 Cir., 1906, 149 F. 636; 49 C.J.S. Judgments § 132. Although it may be shown to be invalid in a direct action or proceeding for that purpose, it may not be attacked collaterally in a criminal proceeding, especially when the record of adjudication shows on its face a duly executed and verified creditors' petition, service on the debtor partners, adjudication of bankruptcy by a district judge, and appointment and qualification of a receiver and trustee. Cajiafas v. United States, 6 Cir., 1930, 38 ...