The opinion of the court was delivered by: Marovitz, District Judge.
Defendant's Motions for Bill of Particulars and for Production of
Defendant is charged, in two counts, with filing fraudulent
income tax returns for the years 1960 and 1961. In his motions he
asks this Court to direct the government to furnish him with a
Bill of Particulars, and a copy of a statement which he allegedly
made to the Internal Revenue Service.
I. Motion for Bill of Particulars
As the government points out, a bill of particulars is directed
to the sound discretion of the Court. Wong Tai v. United States,
273 U.S. 77, 47 S. Ct. 300, 71 L.Ed. 545 (1926); United States v.
Ansani, 240 F.2d 216 (7th Cir. 1957). It should be granted only
if the indictment fails to acquaint the defendant with the charge
against him, so as to enable him to prepare his defense, and so
as to protect him against another prosecution for the same
offense. Wong Tai v. United States, supra; United States v.
Rosenberg, 10 F.R.D. 521 (S.D.N.Y. 1950). However, as this Court
and other courts have repeatedly held, a bill of particulars is
not something to which the defendant is entitled as a matter of
right. United States v. Lupino, 171 F. Supp. 648 (D.Minn. 1958),
and it is not a device by which a defendant may compel the
government to disclose its evidence in advance of trial. United
States v. Lebron, 222 F.2d 531 (2d Cir. 1955).
Some courts have recognized, nevertheless, that the preparation
of a defense to a tax fraud case is very difficult, more so than
the preparation for trial of most other criminal offenses. United
States v. Dolan, 113 F. Supp. 757 (D.Conn. 1953); United States v.
Geller, 163 F. Supp. 502 (S.D.N.Y. 1958); United States v.
Philippe, 173 F. Supp. 582 (S.D.N.Y. 1959). The recent amendment
to Rule 7(f) of the Federal Rules of Criminal Procedure, which
eliminated the necessity of showing cause for the grant of a bill
of particulars, was "designed to encourage a more liberal
attitude by the courts toward bills of particulars, without
taking away the discretion which courts must have in dealing with
such motions in individual cases." See Advisory Committee's Note
to 1966 Amendment to Rule 7(f), Federal Rules of Criminal
Recognizing the difficulty of defending tax cases without the
advantage of adequate particularized information regarding the
offense, Chief Judge Hincks, in United States v. Dolan,
113 F. Supp. 757 (D.Conn. 1953), laid down some guidelines for the
disposition of motions for bills of particulars in tax fraud
cases. In essence, he directed the government in a "net worth"
case such as this one, to identify every "basic entry" on a
return which is charged to be false and to identify any omissions
from the tax return of information the defendant was legally
bound to report, and the sources of such alleged unreported
income. A "basic entry" was defined as "an underlying entry as
distinguished from one which is merely a computation from other
entries actually stated on the return." (113 F. Supp. at 759.)
Furthermore, if the government is unable to fully state the
sources of claimed unreported income:
"* * * it will, of course, be a sufficient compliance
if it shall state that it proposes to prove the
receipt of unreported income by expenditures made
during the taxable period and proof as to the
defendant's net worth on a specified date or dates
which, it is claimed, will demonstrate a fraudulent
omission." (113 F. Supp. at 759)
The Court, however, refused to require the government to state
the amount in dollars of any claimed understatement or
Accordingly, we grant defendant's motion in part. Item (1),
which seeks the specific entries alleged to be false on the
defendant's return should be answered insofar as it refers to
so-called "basic entries" as defined in United States v. Dolan,
Item (2) seeks the specific amount of such entries, and under
the Dolan guidelines is denied.
Item (3) has been answered.
Item (4) again seeks amounts and need not ...