Appeal from the District Court of the United States for the Northern District of Illinois, Eastern Division; Philip L. Sullivan, Judge.
Before EVANS, SPARKS, and MAJOR, Circuit Judges.
Appellant was charged by two grand jury indictments with unlawfully, willfully and knowingly having attempted to defeat and evade portions of his income taxes in violation of section 145(b), Title 26 of the U.S.C.A. Int. Rev. Code. The first, returned on September 1, 1939, contained five counts, which dealt respectively with taxes for the calenday years 1933 to 1937, both inclusive; the second, returned February 29, 1940, dealt with taxes for the calendar year 1938.
To each of these indictments the defendant filed what he termed a verified plea in abatement, in which he merely sought to quash each indictment for the following reasons: As to the first indictment healleged that it was returned on September 1, 1939, by an alleged grand jury which was impaneled and sworn in June, 1939; that no facts pleaded showed jurisdiction in the grand jury to return the indictment, or that the grand jury was legally selected or was continued by an order of the court authorizing the June grand jury of that year to sit in a succeeding term, and that there was no evidence heard by the grand jury at the June term, 1939, touching the matters referred to in the indictment. The alleged reasons for quashing the second were practically the same, but for the variation of the applicable dates. Appellant further alleged that it was not pleaded in the second indictment that it was returned by the regular panel of the December term, 1939, or by any other grand jury sitting at that term - it appearing of record in this court that during the December term, 1939, there was sitting, in addition to the regular grand jury of the December term, another or second grand jury which had been impaneled at that term, both of which were sitting and acting at one and the same time.
The District Attorney moved to strike each plea in abatement, or motion to quash, for the reasons that neither contained sufficient allegations of fact ot support the motions, but on the other hand each contained mere conclusions of appellant with no supporting allegations of fact, and was merely an attempt to contradict the record in each case, and for the further reason that each plea failed to state the source of information upon which appellant's assertions were founded. The court sustained these motions and struck the pleas.
Each indictment discloses that the grand jury involved, on its own motion, was authorized to continue to sit during the term in question for the purpose of finishing investigations already begun. Each indictment alleges that the investigations was begun but not finished at the respective terms at which the juries were authorized to continue their investigation.
Under these conditions there was no error in the court's striking these motions to quash. Moreover, a motion to quash, like a demurrer, will not test he truth of an allegation. Every allegation of appellant in these pleas merely constituted a denial of specific allegations in the indictments. Such an issue might well constitute a basis for a plea in abatement, and the court quite properly set these pleas for hearing on a future date. On that date no evidence was introduced, or offered, other than that we have already stated. Upon these facts it would have been error to sustain the motions to quash, and the court did not err in dismissing the pleas.
To each of these indictments appellant moved for a bill of particulars, which the court denied. In all material instances he called for calculations based upon appellant's books of account which were in his own possession. From these it would seem clear that he could easily calculate his receipts and expenditures and thus ascertain the true amount, if any, for which he was liable for taxation. If, on the other hand, the Government was in error as to its calculations, it would have been a simple matter for appellant to show those errors by the inspection of his own books. The general rule is that particulars such as these will not be furnished when the one seeking them is in possession of the means of ascertaining them. Moreover, in case of such motions the court is clothed with considerable discretion in making its orders. We think that discretion was not abused in this case.
On December 4, 1940, the two indictments were consolidated for trial on motion of the United States Attorney, and without objection of appellant; and at that time they were set for trial on February 20, 1941. On the last-named date, appellant gave notice that on February 24, at the opening of court, he would appear and move to quash the indictments and also challenge the array of petit jurors. On that date he appeared, and by leave of court withdrew his plea of not guilty. The court thereupon gave him leave to file instanter a motion to quash the indictment. That motion was argued and overruled by the court; thereupon appellant moved for a list of Government witnesses, which was denied, whereupon he moved for leave to inspect the minutes of the grand jury, which was also denied. He further moved to waive his trial by a jury. This was likewise denied, and he thereupon entered his motion to inspect the list of petit jurors, which was granted. He then upon arraignment pleaded not guilty and the trial proceeded.
In the motion to quash the two indictments appellant requested the court to consider it without prejudice to any of the motions heretofore made in the causes, "begging leave to demur, both general and special."
The reasons assigned in support of the motions to quash are many. One charges failure of jurisdiction of the grand jury and is said to be supported by the content of the so-called plea in abatement hereinbefore referred to, and by appellant's argument thereon. Others allege that no crime or offense is charged in either of the indictments, and others charge that the indictments, and others chearge that the indictments are not clearly drawn and consist of conclusions instead of facts, or are uncertain by reason of the use of the videlicet, or are multifarious, or in one way or another are not sufficiently clear to inform the accused of the nature of the crime with which he is charged.
It would serve no good purpose to lengthen this opinion by discussion of each of these items. A study of them convinces us that the grand jury had jurisdiction and that the crime was sufficiently charged to inform appellant of the offenses complained of. We think he was not deprived of the rights given to him by the sixth amendment of the Federal Constitution, nor are we convinced that the Act is unconstitutional because, as alleged, it fixes not standard of guilt.
Appellant further contends that it is not clearly stated in the indictments whether he attempted to evade or defeat the tax, or just failed to pay it. He further urges that the nature of the charges and the consolidation of the cases for trial resulted in prejudice to him. We think there is no merit in these contentions. The general form of this indictment has been approved by this court many times. Capone v. United States, 7 ...