Before FRIENDLY, KAUFMAN and MARSHALL, Circuit Judges.
The defendant appeals from a judgment of conviction entered by Judge Bonsal, sitting without a jury, on two counts of a three count indictment charging violations of the federal narcotics laws, 21 U.S.C. §§ 173, 174. Each count of the indictment charged, in the usual form, that the defendant "unlawfully, wilfully and knowingly did receive, conceal, sell and facilitate the transportation, concealment and sale of a narcotic drug * * *," stipulating three specific dates in September and October of 1961. After pleading not guilty to the indictment, the defendant moved for a bill of particulars, and requested that the Government disclose
"1. The date, hour and place, by street and number, of each of the violations alleged in each count of the indictment.
"2. If it is claimed that there was an actual sale, then set forth as to each count the claim of actual sale, the names of the persons to whom it will be claimed the defendant SOLON GLAZE sole or transferred the narcotics alleged to have been sold; a statement as to whether or not the said persons were in the employ of the Government or acting in the instance of the Government."
At the hearing of the motion before Judge Levet, the Assistant United States Attorney expressed unwillingness to comply with one of the defendant's requests for particulars.
"As to No. 2 your Honor, the Government I don't believe has to at this time choose what they alleged in the indictment. The Government has alleged in the alternative several acts on the defendant's part and I don't think the Government has to disclose to the defendant at this time in the bill of particulars whether they are alleging a sale.
"The Government does not say at this time whether there has been a sale - the request is that if the Government does say there is a sale we should name the people. If we have to name people, we would be telling them whether there was a sale or not * * *."
To cure this purported defect in the request for the bill of particulars, Judge Levet ordered that the Government furnish not only the date, hour and place of the charged offenses, but also "the names of the persons who will be claimed by the United States of America acted with or in connection with the defendant, Solon Glaze in connection with" the violations charged, and whether or not the persons named were acting at the instance of the Government. In its bill, the Government named only one person, "Cleophus A. Robinson, II, an employee of the United States Government," in connection with each of the offenses.
At the trial, Robinson, an agent of the Federal Bureau of Narcotics, was called as the Government's first witness, and almost immediately upon taking the stand, testified to a sale of narcotics which took place at the defendant's apartment. The sale from the defendant to Robinson was accomplished through the liaison and in the presence of a special employee of the narcotics bureau, one Saul Sapp or Saul Scott. Objecting to the introduction of this testimony as inconsistent with the particulars furnished by the Government, the defendant's attorney moved to strike it from the record. He claimed that by divulging only Robinson's name, and by withholding Scott's, the Government placed an improper restriction upon defendant's preparation for trial, and that by well-settled principles, the Government's proof should be restricted to the facts as furnished in its bill of particulars.
The trial judge at first reserved decision and subsequently denied the motion, concluding that the Government's bill provided the defendant with adequate information "because it does name the principal agent involved, the alleged dates and times of the sales, or the transactions, and the place of the transactions." Robinson then testified to other transactions to which the special employee was a party. At the end of the entire case, the third count of the indictment was dismissed, and the defendant was convicted on the first two counts. On appeal, he asserts that the trial judge committed error in denying his motion to strike Robinson's testimony as inconsistent with the bill of particulars.
We find that the deviation between the Government's bill and its proof at trial was not of substantial prejudice to the defendant. We therefore affirm the judgment of conviction
It is no doubt true that "[the] function of a bill of particulars is to enable the accused to prepare for trial and to prevent surprise, and to this end the government is strictly limited to proving what it has set forth in it." United States v. Murray, 297 F.2d 812, 819 (2d Cir.), cert. denied, 369 U.S. 828, 82 S. Ct. 845, 7 L. Ed. 2d 794 (1962). See United States v. Neff, 212 F.2d 297, 309 (3d Cir., 1954). Courts must therefore view with suspicion attempts by parties to adduce proof of facts which modify or contradict assertions recorded in their bill of particulars. Judge Levet's order was purposely drawn in broad language - "the names of the persons who * * * acted * * * in connection with the defendant * * * in connection with the violations" charged - language which without question swept within its ambit not only agent Robinson but also special employee Scott. Nonetheless, the trial judge concluded that the Government had complied with Judge Levet's order by naming the "principal agent" involved. We think this reading of the order too parsimonious. Since the Government was not willing to disclose that the precise charge against the defendant was a sale of narcotics and the order was purposely drawn so as to encompass persons other than a particular vendee, the trial judge's reading of the language in the order to mean only "principal agent" completely negated the significance of the broadly worded order.
Our inquiry does not end here, however. For it is well settled that a variance between the proof and the bill of particulars is not grounds for reversal unless the appellant is prejudiced by the variance. See United States v. Burgos, 269 F.2d 763, 767-768 (2d Cir., 1959), cert. denied, 362 U.S. 942, 80 S. Ct. 808, 4 L. Ed. 2d 771 (1960); United States v. Albanese, 224 F.2d 879, 882 (2d Cir.), cert. denied, 350 U.S. 845, 76 S. Ct. 87, 100 L. Ed. 753 (1955); Fed.R.Crim.P. 52 (a). The defendant asserts that he at one time suspected Saul Scott of having been responsible for his arrest on these narcotics charges, but that, upon learning from the bill of particulars that Scott was not implicated in the alleged narcotics transactions, his attorney never followed up his investigation, already commenced, of certain occurrences between Scott and the defendant. By sacrificing this opportunity to investigate the relationship between Scott and the defendant - which is asserted to ...