Bankr. L. Rep. P 68,233united States of America, Plaintiff-appellee, v. H. B. Haymes, A/k/a Buddy Haymes, Defendant-appellant, 610 F.2d 309 (5th Cir. 1975)

The appellant, H. B. Haymes, was charged with 40 counts of bankruptcy fraud in violation of 18 U.S.C.A. § 152. Specifically, the indictment alleged that on 40 occasions between April 4, 1975, and October 7, 1975, appellant transferred or caused to be transferred funds from his corporation, Commodity International Corporation (CIC), to himself "in contemplation of bankruptcy proceedings and with intent to defeat the bankruptcy laws."¹  A jury convicted appellant on counts 12-40 (transfers between June 2, 1975, and October 7, 1975) and acquitted him on counts 1-11 (transfers between April 4, 1975, and May 30, 1975). He was sentenced to three years' imprisonment for each of counts 12-40, with sentences to run concurrently. He was also fined $500 on each count, for a total fine of $14,500.

On this appeal, appellant raises two issues. First, he contends that the District Court improperly permitted the Government to amend its indictment. Second, he contends that the evidence was insufficient to sustain his conviction on counts 12-39, although he does not challenge the sufficiency of evidence with respect to count 40. Finding neither of appellant's arguments persuasive, we affirm the District Court.

The "And Or" Dilemma

In the indictment, the Government charged appellant with transferring funds "in contemplation of bankruptcy proceedings And with intent to defeat the bankruptcy laws." (Emphasis added.) The statute prohibits fraudulent transfers made "in contemplation of a bankruptcy proceeding . . . Or with intent to defeat the bankruptcy law." 18 U.S.C.A. § 152 (emphasis added). In accordance with the statute, the District Court charged the jury that the law required the transfer of funds to be in contemplation of bankruptcy Or with intent to defeat the bankruptcy laws. Appellant contends that by giving this charge, the District Court improperly permitted the Government to amend its indictment.

It is well-established in this Circuit that a disjunctive statute may be pleaded conjunctively and proved disjunctively. United States v. Quiroz-Carrasco, 5 Cir., 1978, 565 F.2d 1328, 1331; Cunningham v. United States, 5 Cir., 1966, 356 F.2d 454, 455-56; Price v. United States, 5 Cir., 1945, 150 F.2d 283, 284-85. As this Court stated almost thirty-five years ago:

When several acts specified in a statute are committed by the same person, they may be coupled in one count as together constituting one offense although a disjunctive word is used in the statute, and proof of any one of the acts joined in the conjunctive is sufficient to support a verdict of guilty.

Price v. United States, supra, 150 F.2d at 285. As a corollary, the above-cited cases hold that jury instructions given in the disjunctive are not prejudicial. See also United States v. Garrett, 5 Cir., 1978, 583 F.2d 1381, 1387-88. Seeing no reason to depart from this long line of cases, we reject appellant's argument.² 

Another Look Through Glasser Lenses

Appellant contends that the evidence adduced at trial was not sufficient to warrant his conviction on counts 12-39. Specifically, he claims that the Government has not shown that he acted in contemplation of a bankruptcy proceeding or with intent to defeat the bankruptcy laws.³  After a careful review of the record, we disagree.⁴ 

In reviewing the sufficiency of evidence to support a jury verdict, we must determine whether "there is substantial evidence taking the view most favorable to the Government, to support (the verdict)." Glasser v. United States, 1942, 315 U.S. 60, 80, 62 S. Ct. 457, 469, 86 L. Ed. 680, 704.⁵  In making this determination, moreover, we recognize that "all reasonable inferences and credibility choices must be made in favor of the jury verdict." United States v. Wieschenberg, 5 Cir., 1979, 604 F.2d 326, 330.

As previously stated, appellant contends that with respect to counts 12-39, the Government has not demonstrated that he made transfers in contemplation of bankruptcy proceedings or with intent to defeat the bankruptcy laws. While not contesting the fact that the evidence of his transfers of funds was overwhelming, appellant contends that the only direct evidence that his transfers were intended to defeat the bankruptcy laws or were made in contemplation of bankruptcy came from Candace Winning, an employee of CIC. Ms. Winning testified that sometime during September or October of 1975, appellant told her about the grave financial condition of CIC and the likelihood that it would fall into bankruptcy. Since counts 12-39 involved transfers of funds prior to October, while only count 40 involved a transfer at about the time of the conversation between appellant and Winning, appellant contends that only count 40 could be based on Winning's testimony.

We find this argument unpersuasive for two reasons. First, a jury could have reasonably believed from Winning's testimony that appellant's comments to her about CIC's grave financial condition and impending bankruptcy went back at least as far as the spring of 1975.⁶ 

Second, even assuming that appellant's first explicit mention of the prospect of bankruptcy was in September or October, his mention of bankruptcy at that time, when coupled with the comments made by him during the spring of 1975, provides strong support that he acted in contemplation of bankruptcy proceedings as far back as late spring or early summer of 1975.⁷  A jury must be allowed to put two and two together. Indeed, the jury's verdict demonstrates that the inferences made concerning appellant's intent were clearly reasonable. The jury found appellant guilty on counts 12-40, which involved transfers between June 2, 1975, and October 7, 1975, but found him not guilty on counts 1-11, which involved transfers of funds between April 4, 1975, and May 30, 1975. The jury's unwillingness to infer intent with respect to any of these earlier transfers demonstrates a sophisticated verdict, one based on a careful analysis of the evidence.

AFFIRMED.