The opinion of the court was delivered by: GODDARD
Motion by defendant, John Ward, for the production prior to trial of certain documents requested in subpoenas served on the government pursuant to Rule 17(c) of the Federal Rules of Criminal Procedure, 18 U.S.C.A.
The subpoenas call for the production of:
(a) Income tax returns filed by John White, John Kehoe and Michael Wheeler, as individuals and doing business as John White & Co. for the tax year 1951.
(b) The books and records of various trucking companies reflecting payments to the defendant, Allied Stevedoring Corp. during 1951.
(c) Statements made to the government by John White, John Kehoe, Michael Wheeler and Jos. Feinbaum.
(d) All documents obtained by the government other than by seizure or process (1) in the course of the grand jury investigation and (2) in the course of the government's preparation for trial if (a) they were presented to the grand jury, or (b) they are to be offered as evidence.
The indictment charges the defendants, Allied Stevedoring Corp., and John Ward, John Potter and Michael Bowers, officers of Allied, with wilfully attempting to evade income taxes owing by Allied for the year 1951, by filing a fraudulent return, wherein 'they alleged that the net income of the corporation for the said calendar year was the sum of $ 137.49, and that the total amount of tax due thereon was the sum of $ 39.53, whereas as they then and there well knew, the net income of the corporation for the said calendar year was $ 71,846.07, upon which said income the corporation owed to the United States of America a total tax of $ 43,331.61.'
A motion for a bill of particulars was granted to the extent of requiring the government to state the general sources of the additional income of the corporation. The bill of particulars stated that the additional income was obtained from trucking companies in and around New York City for Allied's services as a 'public loader' and from other 'public loaders' and from rental on machinery to these public loaders.
Rule 17(c) provides that:
'The court may direct that books, papers, documents or objects designated in the subpoena be produced before the court at a time prior to the trial or prior to the time when they are to be offered in evidence and may upon their production permit the books, papers, documents or objects or portions thereof to be inspected by the parties and their attorneys.'
The leading case on the use of Rule 17(c) to effect pretrial production of papers in the possession of the government is Bowman Dairy Co. v. United States, 341 U.S. 214, 71 S. Ct. 675, 679, 95 L. Ed. 879. Therein, after the district court had ordered extensive production prior to the trial, the Supreme Court largely upheld the action of the district court. It held that the papers and documents were subject to subpoena, so long as they were evidentiary. As it said, the chief innovation of Rule 17(c) 'was to expedite the trial by providing a time and place before trial for the inspection of the subpoenaed materials.'
However, speaking of the Bowman Dairy decision, in Remmer v. United States, 9 Cir., 1953, 205 F.2d 277, 284, the court declared:
'The Supreme Court in that case held that the trial court had the power to order the Government to produce certain documents. It did not hold that a refusal to grant the motion to produce would have been an abuse of discretion.'
It seems clear that whether materials subject to subpoena are to be produced and inspected prior to trial rests within the sound discretion of the court. United States v. Schneiderman, D.C., 104 F.Supp. 405; United States v. Mesarosh, D.C., 13 F.R.D. 180, 184. Rule 17(c) by its very language ...