The opinion of the court was delivered by: ABRUZZO
This is a motion for an order dismissing, setting aside and quashing the indictment against the defendant.
The indictment was handed up by the March, 1941, Grand Jury. In it, the defendant is charged with conspiracy in bankruptcy in violation of subdivision b(1) of Section 52 of Title 11 U.S.C.A. The indictment alleges five overt acts. The second count of the indictment charges the defendant with concealment of assets in violation of Title 11 U.S.C.A. § 52 subdivision b(1).
The motion is based upon five grounds, namely: (1) That the matters contained therein (in the indictment) have been adjudicated; (2) that defendant, Joseph Agresti, was never declared a bankrupt in any bankruptcy proceeding, nor was any trustee appointed for him; (3) that the indictment fails to state a crime; (4) that the defendant, Joseph Agresti, has been placed in double jeopardy; and (5) for such other and further relief as the Court may deem just and proper in the premises.
It appears that this defendant was tried on February 17, 1941, under an indictment found in October, 1939. That indictment charged the defendant with conspiracy in bankruptcy, alleging five overt acts. The second count of the same indictment charged concealment of assets in violation of subdivision b(1), Section 52, Title 11 U.S.C.A. After the opening by the United States Attorney, a motion was made for dismissal of the indictment and this motion was granted.
It appears that one Marrone, a barber, opened an Italian grocery store and subsequently an involuntary petition in bankruptcy was filed against Marrone and he was adjudicated as such in this Court. The theory of the government's indictment is that the defendant, Agresti, was the real owner of the grocery store and used Marrone's name as a subterfuge, and while an involuntary petition in bankruptcy was filed against Marrone, the store in fact belonged to the defendant, Agresti.
The United States Attorney, upon the motion to dismiss on February 17, 1941, stated as follows:
"The Court: You claim that the assets were Agresti's?
"Mr. Lyons: That is right. I charge Agresti with the concealment of assets which belonged to Marrone.
"The Court: If you take the position that the assets were Marrone's and that Agresti aided and abetted in a conspiracy with Marrone to conceal it, that would be entirely different from your indictment.
"Mr. Lyons: The indictment does not charge that. The indictment charges the assets were the assets of the estate.
"The Court: That is Marrone.
"Mr. Lyons: Exactly. We charge this man Marrone conspired to conceal the assets that belonged to that estate. We charge that this defendant, Agresti, had conspired to conceal the assets which properly belonged to a certain estate of the bankrupt which was administered in the Court.
"The Court: If you did it in the way you just said it, I think your indictment might have been good but you have gone out of the way: you have charged that the property is Agresti's; that Marrone was improperly adjudged a bankrupt, and that the property is not the property of Marrone. It is the property of Agresti and that Agresti has concealed ...