Lumbard, Chief Judge, Moore, Circuit Judge, and Bonsal, District Judge.*fn* Moore, Circuit Judge (dissenting).
Frank Guglielmini and John Testa appeal their convictions by a jury after trial in the Eastern District of New York in November 1966 on three counts for concealing assets of a bankrupt, and of Guglielmini on an additional count for concealing records, in violation of 18 U.S.C. § 152, for which the district court imposed concurrent five-year prison terms and five years' probation to follow service of sentence.
The appellants allege that they were denied a fair trial by the conduct of the trial judge and the prosecutor, and they complain of errors in the court's charge. Our study of the record shows substantial support for their claims. As we find that the cumulative effect of these errors was such as to render it highly doubtful that the appellants enjoyed the fair trial to which they were entitled, we reverse the convictions.
Simply stated, the government's case was that Frank Guglielmini and John Testa ran the business of the Miracle Supermarket, owned by Frank Guglielmini's brother, John Guglielmini, for the purpose of defrauding creditors and concealing the assets and books of the business from the receiver in bankruptcy.
The indictment charged that on April 1, 1960, an involuntary petition in bankruptcy was filed against Frank Guglielmini's brother, John -- also known as John Papa and doing business as the Miracle Supermarket in Brooklyn, New York, -- who thereafter on June 6, 1960 filed a voluntary petition in bankruptcy under Chapter XI of the Bankruptcy Act and was adjudicated a bankrupt on September 28, 1960. It was charged that commencing about February 1, 1960, Frank Guglielmini and John Testa were engaged in the management of the business, but that only a part of the assets were made available to the receiver, although the bankrupt had substantial property, largely foodstuffs and cash receipts from sales, and that Frank Guglielmini and John Testa knowingly and fraudulently concealed from the receiver property and cash receipts of approximately $39,000.
A second count charged knowing and fraudulent concealment of the same property from the creditors of the bankrupt, and a third count charged that in contemplation of a bankruptcy proceeding, and with intent to defeat the bankruptcy laws, the defendants knowingly and fraudulently transferred and concealed the same property. A fourth count charged that the two defendants, after the commencement of the bankruptcy proceeding, knowingly and fraudulently concealed the books, records, and documents of the bankrupt from the receiver.
The proof amply supported the verdicts of guilty. In summary, the government showed that the defendants ordered approximately $48,000 worth of groceries, meat and fowl in March 1960, and that less than half of it was in the bankrupt's inventory on April 2, 1960 or accounted for by bank deposits in March. Meanwhile merchandise was sold, below cost, for cash which was not deposited in the business. Cf. United States v. Olweiss, 138 F.2d 798 (2 Cir. 1943), cert. denied, 321 U.S. 744, 64 S. Ct. 483, 88 L. Ed. 1047 (1944). In addition, there was evidence that the books of account were given to Frank Guglielmini prior to the bankruptcy and that they were never produced.
The appellants complain that during the ten days of trial the trial judge by his "reproachful, acrimonious and apparently baiting criticism" of Mr. Lewis, counsel for Frank Guglielmini, denied the defendants the effective assistance of counsel and conveyed to the jury the impression that he, the judge, "entertained feelings of suspicion and hostility towards the defense."
The record contains numerous instances of repartee between the judge and defense counsel. Most of this was wholly unnecessary and much of it could only have served to demean counsel and cast an unfavorable light on the defense. For example, the court, on the third and fourth days of the trial, brought out in the presence of the jury that the Assistant United States Attorney was trying his first criminal case and that he was a "young boy" compared to Mr. Lewis, to whom the court said (R. 502-03):
"The Court: You must remember that you have tried criminal cases for years and years and years, is that right? And both of us have some experience in trying cases for many years, and we are much older than this young boy who is trying this case.
"Mr. Lewis: But he is very competent young boy who may be better than a decrepit old man.
"The Court: For this first criminal case he is trying --
"Mr. Lewis: He's tried many civil cases and has been ...