Petition for Writ of Certiorari — Douchan v. United States

7 _ FILZD

(V7 MAY 18 1943

United States of America

IN THE

Supreme Court of the United States

OCTOBER TERM, 1942-43

SOOO eee ee eeereeeeeeees

PAUL DOUCHAN,

Petitioner and Appellant below,

vs.

UNITED STATES OF AMERICA,

Appellee below

—_——

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES CIRCUIT COURT

OF APPEALS FOR THE SIXTH CIRCUIT

AND BRIEF IN SUPPORT THEREOF.

CHARLES A. MEYER

of

WILEY, STREETER & MEYER,

1925 Dime Building,

Detroit, Michigan,

Counsel for Petitioner.

Interstate Brief & Record Co., Cass Bidg., 457 Fort St. W., Detroit, Mich.

SUBJECT INDEX

Petition for Writ of Certiorari.............eeeeee- 1-8

A. Summary Statement of the Matter Involved = 1-7

B. Reasons Relied On for Allowance of the Writ 7-8

Brief in Support of Petition for Writ of Certiorari.. 9-21

I. Opinion of the Court Below............+- 9

a error re ray eee eee yr Eee 10

III. Statement of the Case............eeeeee 11

IV. Specification of Errors...........+..++6+ 11

ae... | nr rrr rns rrr 11-20

Vi. Comeation ....%.. see eeeerereceeeeceeee 20-21

APPONIE 2.0 cece n cece ececeeeccecenactecesencs 22

TABLE OF CASES CITED

Coffin v. United States, 156 U. S. 482.............. Pe Ys

Dumbrowski v. State, 90 S. W. (2) 973, 192 Ark. 263

: EARNAD MOR eee ee eT ere PLETE TO Lett 17

Hummer v. Commonwealth, 94 8. E. 157, 122 Va. 826

1) Rehr nepOn Er rer rat re ty Mr ket ey 14

Jones v. State, 3 S. W. 478, 22 Tex. App. 680....... 18

Miller v. United States, 120 Fed. Rep., second series,

Oe seis ny ih a WK HARMED AERROR ESS 19

People v. Crane, 302 Ill. 217, 1384 N. KE. 99 (Ill. Sup.

i; SOD eek ds ba Sieh ieee cue eeee chve ve Weeas 15

People v. Flynn, 38 N. E. (2) 49, 378 Ill. 851 (1942) 18

People v. Pereles, 12 P. (2) 1093, 125 Cal. App.

(Supp.) 789 (1932)..........eee cere cece eens 18

Pierce v. United States, 314 U. 8. 306, 362, 86 L. Kd.

W'S ee eee ras eer er Eee eat 7,13

ii

Page

Poole v. State, 170 S. E. 309, 47 Ga. App. 303 (1933) 17,18

St. Louis v. Slupsky, 162 S. W. 155, 49 L. R. A. (N.

WR sn Shs Vane ee eee erek vases séencees 16

Stromberg v. California, 283 U. S. 359 (1930)....... 7, 16

United States v. Atkinson, 297 U. S. 157, 80 L. Ed.

Osea Ga paet ped eRPENae kee A Re pewede cease 19

United States v. Paul Douchan, 134 Fed. —........ 9

United States v. Socony-Vacuum Oil Co., 310 U. S.

ie I i ooh a yd bas ke wae eens ee 19

Sy Ge Sos Ping SO OR, OOM, GED ccs cect sceee 22

United States of America

IN THE

Supreme Court of the United States

OCTOBER TERM, 1942-43

PAUL DOUCHAN,

Petitioner and Appellant below,

vs.

UNITED STATES OF AMERICA,

Appellee below

PETITION FOR WRIT OF CERTIORARI

To: THe Honorasie Harian Fiske Stone, CHIEF JUSTICE

OF THE UNITED STATES, AND THE ASSOCIATE JUS-

TICES OF THE SUPREME CoURT OF THE UNITED

STATES:

Your petitioner respectfully shows:

A.

SUMMARY STATEMENT OF THE MATTER

INVOLVED

Petitioner was indicted in the United States Court by

the Grand Jury for the Eastern District of Michigan, South-

—y

2

ern Division, at the June term of 1938, and charged with

violations of Section 52 (B), Title 11, U. 8. C.

The indictment charged petitioner in two counts with

wilfully, maliciously, knowingly and fraudulently conceal-

ing from Theodore Hughes, Trustee of petitioner’s estate

in bankruptey upon August 15, 1936, real estate bonds of

Bafkers Trust Company of Detroit, Michigan, of the par

value of $6,200, Series N. 1452, and real estate bonds of

said Bankers Trust Company with a par value of $20,000,

Series N. 1452 (R. 113-114).

At the trial, the Government contended, and offered evi-

dence to show, that the bonds were the property of peti-

tioner and not his brother, Mike Prodanov, and that the

transfers were made by petitioner to avoid his creditors;

while petitioner contended, and offered evidence to show,

that the bonds in question were purchased by him for and

on behalf of his brother, Mike Prodanov (the petitioner

having changed his name through the Probate Court from

Paul Douchan Prodanov to Paul Douchan, R. 49); and that

the money was furnished by his brother, Mike Prodanov,

who was a blacksmith living in New York at the time of the

purchase but who later moved to Detroit. -

Petitioner’s voluntary petition in bankruptcy- was filed

February 19, 1936, and disclosed debts in the amount of

$54,000 and no assets.

The then counsel for petitioner at the trial stipulated that

all of these $26,200 worth of Bankers Trust Company bonds,

Series No. N. 1452, previously registered in the name of

Paul Douchan, petitioner herein, were identically the same

bonds as were later transferred as follows:

On September 21, 1934, Paul Douchan (petitioner) trans-

ferred $23,200.00 worth of these bonds to Earle W. Evans;

on November 27, 1934, Paul Douchan (petitioner) trans-

_—_—

3

ferred $4,700.00 of these bonds to Earle W. Evans; on

November 27, 1934, Earle W. Evans transferred back to

Paul Douchan (petitioner) $20,000.00 worth of the same

bonds; on April 6, 1936, Earle W. Evans transferred

$6,200.00 worth of the same bonds to Mike Prodanov; on

April 7, 1936, Paul Douchan (petitioner) transferred $20,-

000.00 worth of these same bonds to Mike Prodanov. No

evidence of consideration was shown for any of the trans-

fers (R. 33).

Hughes, the Trustee from whom petitioner was charged

with concealing the bonds on August 15, 1936, did not tes-

tify but counsel for petitioner, in order to codperate and

avoid loss of time waiting for Trustee Hughes, who failed

to appear in the trial court, admitted that none of the bonds

mentioned in the indictment were received or turned over

to Mr. Hughes, the original Trustee (R. 35-36). Neverthe-

less Donald P. Kipp, over objection by petitioner’s counsel,

testified that he was appointed trustee on the 30th day of

September, 1937, and that neither the petitioner or his

brother, Mike Prodanov, turned over the bonds to him (R.

28-29).

The files in the petitioner’s bankruptcy case were intro-

duced in evidence by the Government (R. 11) and Maleolm

Shaw, a deputy clerk of the Court, testified that on August

19, 1936, a petition for discharge was filed; and that on

October 2, 1936, specification and appearance of Mammie

Crawford, a creditor, in opposition to discharge was filed

(R. 1387). The certified copy of the calendar entries in the

bankruptcy proceedings show that several hearings were

had on the above specifications in opposition to discharge,

and on February 18, 1937, the Trustee’s final report of no

assets was filed, followed by an order closing the estate

entered by the Referee in Bankruptcy on March 31, 1937

(R. 103-104). The report of the Referee on specifications

4

in opposition to discharge recommended objections to peti-

tioner’s discharge be overruled and said bankrupt’s dis-

charge be granted (R. 116-124).

The docket further shows that in December, 1941, peti-

tions by creditors to reopen the bankrupt estate were again

filed with the Referee in Bankruptcy and several hearings

had thereon; and on March 25, 1942, an order for re-refer-

ence was entered; exceptions to findings of the Referee as

Special Master were denied on May 18, 1942; following

this Herbert J. Pevos was elected trustee and qualified; on

June 15, 1942 an order was entered setting aside and quash-

ing order for reopening of estate; and on June 30, 1942, an

order was entered again closing the file (R. 105-108). and

pursuant thereto an order was entered by the United States

District Judge—‘‘* .* * It is further ordered that the dis-

charge of the above named bankrupt be and the same is

hereby reinstated and perpetuated’’ (R. 136).

NOTE: In respect to the rules of this Court to be con-

cise, counsel includes only those portions of the instrue-

tions which relate directly to the proposition presented in

this application. ;

The Court instructed the jury as follows:

‘‘Tadies and Gentlemen of the Jury: The de-

fendant here, Paul Douchan, is charged with a

violation of Section 52 B, Title XI of the Bank-

ruptey Code of the United States Code, which

reads as follows:

‘A person shall be punished by (and the pun-

ishment is given) upon conviction of the offense

of having knowingly and fraudulently (1) con-

cealed from the Receiver or Custodian, Trustee,

Marshall, or other. officer of the Court charged

with the control or custody of property, or from

ereditors in any proceedings under this Bank-

ruptey Act any property belonging to the estate

5

of a bankrupt or (2) making a false oath in or

relation to any proceedings under this act or

(3) presented under oath any false claims for

proof against an estate of a bankrupt’—

That doesn’t apply here. Number (3) doesn’t

apply here. Number 4 doesn’t apply. Number 5

‘Receive or attempt to obtain any money or prop-

erty.’ I think the rest does not apply. That is

right, the punishment is provided in the first part

of the Act (R. 87).

‘*The charge is in two counts that Paul Douchan

wilfully, knowingly, and fraudulently concealed

certain of his assets in one group, $20,000 in bonds

of Bankers Trust Company, and in another group

some $6,000 in bonds of the Bankers Trust Com-

pany (R. 88).

‘“‘The Government in this case claims that Paul

Douchan over a period of years and because he

was harrassed by creditors, sought to play both

fast and loose with the property he had, that he

was real owner of the Vancouver Hall Apartments,

and that in 1930, he was in trouble with a man

by the name of Crawford. Now, the merits of

Crawford’s claim is no part of this case, I mean

whether he had a good clear claim or whether he

didn’t have a good claim is immaterial. The fact

remains that the defendant presented his name as

among those whom he owed and it is part of the

$52,000.00 of liabilities. But whether Crawford

had a good claim or not is immaterial. The claim

is that Crawford, I think, in 1930 tried to sue the

defendant, Douchan. He didn’t sueceed and then

shortly thereafter in 1931, a deed was made out to

Mike Prodanoy, his brother. Douchan is the

brother admittedly of Prodanov. It is the claim

of the Government that at that time, Prodanov

gave a power of attorney back to Paul and that in

that way, Paul really protected his interest in the

property”? (R. 91).

6

The Court then instructed the jury as to circumstantial

evidence and continued thus:

**On the other hand, if you feel that the cireum-

stances plus the admitted facts convince you be-

yond a reasonable doubt that they were Paul

Douchan’s bonds and he did this, went through

these various steps as a protection to himself and

that he should, if they were hid, he should have

made a disclosure to the Bankruptcy Court, then

of course, Paul Douchan is guilty, here and I

don’t want to go into the various claims of the

Government showing that this is the only reason-

able conclusion that you can arrive at’’ (R. 92).

The record reveals that the indictment was not read to

the jury, or given to the jury, by the Court or otherwise,

and that the elements of the offense, date, place, or vicinage

of the alleged offense was not stated or explained to the

jury at any time during the trial or in the Court’s instrue-

tions.

The instructions concluded, the case was submitted to

the jury, and the jury returned a verdict of ‘‘guilty as

charged’’ (R. 97).

Whereupon petitioner was sentenced to a penitentiary

for and during a term of two years on each count, the terms

of imprisonment to run concurrently (R. 98).

A motion by petitioner to set aside verdict and vacate

sentence or a new trial was heard and denied by the trial

judge (R. 137-146).

Petitioner appealed to the United States Cireuit Court

of Appeals for the Sixth Circuit and judgment and sen-

tence of the District Court was affirmed April 15th, 1943.

In the motion for a new trial and on appeal, petitioner

contended in part that the Court’s error in charging the

7

jury in the terms of the amended statute, rather than in the

terms in effect at the time of the alleged offense, thus intro-

ducing the inapplicable element of concealment from credi-

tors, in conjunction with the Court’s repeated statement in

the instructions that the G nt’s contention was that

petitioner had concealed his property from creditors and

the considerable evidence of petitioner’s difficulties with

creditors in 1930, led the jury to believe that petitioner

could be found guilty as charged if he simply made trans-

fers in fraud of creditors, while in fact the only crime of

which he could have been guilty in 1936, was concealment

of his assets from the Trustee, as charged in the indict-

ment.

B.

REASONS RELIED ON FOR ALLOWANCE

OF THE WRIT

1. The Circuit Court of Appeals in this case has decided

a Federal question in a way probably in conflict with appli-

cable decisions of this Honorable Court, in that the said

Court held that a verdict based on either of two or more

acts, one of which was not an offense and two of which

were not included in the indictment, was a valid verdict,

in conflict with Pierce v. United States, 314 U. S. 306,

Stromberg v. California, 283 U. 8. 359, and Coffin v. United

States, 156 U.S. 482.

2. The Cireuit Court of Appeals has sanctioned a pro-

ceeding wherein the lower court so far departed from the

accepted and usual course of judicial proceedings as to call

for the exercise of this Court’s supervision, in the respect

specified in the preceding paragraph.

Wherefore, your petitioner respectfully prays that a writ

of certiorari issue under the seal of this court, directed to

: 4

the United States Cireuit Court for the Sixth Cireuit com-

manding that Court to certify and send to this Court a full

and complete transcript of the record and proceedings of

said Circuit Court of Appeals for the Sixth Cireuit had’in

the case numbered and entitled on its docket Number 9145

—Paul Douchan, Appellant, v. United States of America,

Appellee, to the end that this cause may be reviewed and

determined by this Honorable Court as provided for by the

statutes of the United States, and the judgment herein of

said Circuit Court of Appeals for the Sixth Circuit be

reversed by this Court, and for such further relief as to

this Court may seem just.

Dated May 15, 1943.

PAUL DOUCHAN,

By CHARLES A. MEYER,

Counsel for Petitioner,

1925 Dime Building,

Detroit, Michigan.