The opinion of the court was delivered by: KNIGHT
The indictment contains four Counts, each charging the defendant with wilful and fraudulent evasion of income taxes for the calendar years 1937 to 1940, inclusive. Defendant's sources of income, as reported by him and as charged in the indictment, were 'dividends', 'interest', 'partnerships', 'rents and royalties', 'oil leases' and 'business income'. For each of said years the items 'dividends' and 'interest' received admittedly were correctly reported, and income from 'oil leases' for the years 1938 and 1940 is not involved.
The defendant moves for a bill of particulars showing how the items of 'partnership income', 'oil leases', 'rents and royalties' and 'business income', including dates and sources of all receipts, are made up in the several Counts, and an itemized statement of 'each and every adjustment made respecting the partnership income, rents and business income as alleged in each Count are made up.'
The test with respect to the sufficiency of the indictment is whether the facts are so distinctly set forth as to advise the accused of the charge made and give him a reasonable opportunity to prepare his defense, 'so particularly as to enable him to avail himself of a conviction or acquittal in defense of another prosecution for the same offenses, and so clearly that the court may be able to determine whether or not the facts there stated are sufficient to support a conviction.' United States v. Allied Chemical & Dye Corp., D.C., 42 F.Supp. 425, 428. The indictment herein meets the test stated, except in the respects hereinafter set forth. Within this limitation the court has a wide discretion in its action upon a motion for a bill of particulars. A rule of guidance, as it is understood, is that the government will not be required to make a disclosure in detail of its evidence. Each case, of course, depends upon its own peculiar facts, but the effect of granting of this motion in toto would be to require the government to disclose substantially upon all of its evidence. Situations comparable to those alleged here have been considered many times by the courts. It is believed that a great majority are in accord with the decision herein made.
What was said by Judge Caffey in United States v. Wexler, D.C., 6 F.Supp. 258, 259, is directly in point. The defendants there moved for a bill of particulars giving a detailed statement of the items in various counts of the indictment representing income from a beverage business and related enterprises, items representing expenses. There the court said: 'Indeed, as I analyze the indictment, it seems to me that the government could not comply with the demands as framed without injurious disclosure of its evidence. It is without dispute that a revelation of that character should not be required. Horowitz v. United States, 2 Cir., 262 F. 48.' The Wexler case was affirmed by the Circuit Court in this Circuit, 79 F.2d 526. The appeal, however, did not involve any question of the propriety of the decision of the lower court denying a bill of particulars.
In Stumbo v. United States, 6 Cir., 90 F.2d 828, 832. Certiorari denied 302 U.S. 755, 58 S. Ct. 282, 82 L. Ed. 584, the court in affirming the denial of a motion for amplification for a bill of particulars said: 'The motion for amplification requested information concerning the minutest items of evidence. We know of no invasion of the rights of defendants in the failure of the court to require that the Government lay before them its entire case.'
In United States v. Hall, D.C., 52 F.Supp. 796, 797, the court said:- 'The motion for bill of particulars seeks the computation and basis upon which various items have been determined. This is clearly an effort to obtain the evidence upon which the government bases its charges. The indictment sets forth the items and amounts which the government claims to make up the true income of the defendant for each of the years in question. * * * To require more than has been set forth in these indictments would force the government to detail its evidence to an extent not considered necessary under our present criminal procedure.' Vide also: United States v. Van Wagenen-Sager, Inc., D.C., 34 F.Supp. 735; United States v. Kessler, D.C., 43 F.Supp. 408; Rose v. United States, 10 Cir., 128 F.2d 622, certiorari denied 317 U.S. 651, 63 S. Ct. 47, 87 L. Ed. 524.
It seems to me that the cases cited by the defendant in support of this motion are distinguishable. Reliance seems to be principally based upon Singer v. United States, 3 Cir., 58 F.2d 74. The charge was the same as that involved here. There the indictment alleged, among other things, evasion with respect to 'other income', without specifying what such other income was. Further, the particulars were also sought as to 'income from partnership'. The books of the partnership were in the possession of the government, and the government refused an inspection of these. In the instant case there is no count including 'other income', and the books of the partnership, so far as the record discloses, are now in the possession of the partnership of which the defendant was a member.
In United States v. Empire Paper Corp., D.C., 8 F.Supp. 220, also a tax evasion charge, it appeared that the government had been in possession of the books of the defendant, but that the figures shown in the indictment as going to make up the true income of the defendants could not be reconciled with the books of the defendants.
In United States v. Farrington, D.C., 11 F.Supp. 215, Singer v. United States, supra, is cited as being not distinguishable, but in that case, so far as the opinion discloses, there was no breakdown of the gross income for the years there in question.
United States v. Greve, D.C., 12 F.Supp. 372, and United States v. Clawson, D.C., 13 F.Supp. 178, are not comparable in facts to those shown here.
In Rose v. United States, 10 Cir., 128 F.2d 622, 624, the Circuit Court said: 'The bill should have been furnished in respect to the item 'Other Income' in each count.' In that case the appellant moves for a bill of particulars as to 'each count in the indictment showing a break-down or recapitulation of each item of income and indicating with particularity the source from which it was contended such income had been derived or received.' In distinguishing that case from Singer v. United States, supra, the court said: 'that the greatly exaggerated allegations in respect to amounts, the confusion, and the interruptions in an effort to unravel the facts, all considered together, prejudiced him (Singer). But here an entirely different situation is presented.'
United States v. Allied Chemical & Dye Corp., supra, involved a charge of conspiracy. None of the reasons given for granting the bill of particulars in that case are applicable here.
Again, in United States v. Yoffe, D.C., 52 F.Supp. 175, 177, the court required the government to furnish a bill of particulars showing only the source of the sum designated as 'other income' or designated in the first two indictments as 'other income'. The facts set forth in this case are quite comparable with the case at bar. The court specifically denied the motion as to the third indictment as relating to all of the items of charges set forth in the indictment. This third indictment did not include any charge with respect to 'other income'. The court said: 'The third prayer demands too much. * * * To allow the motion would furnish defendants with the government's case in advance.'
Again, United States v. Brooks, D.C., 44 F. 749, 750, shows facts not in point here. As a ground for granting the motion the court said: 'Upon due consideration, the court was unable to understand, from the facts stated in the indictment, whether the government intended to charge him with having received * * * the amount of money alleged to have come into his hands, and from that single amount appropriated a part, or whether it was claimed that at different times * * * he had received sums * * * and had ...