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UNITED STATES v. ROSENFELD

February 2, 1967

UNITED STATES OF AMERICA, PLAINTIFF,
v.
ALBERT ROSENFELD, DEFENDANT.



The opinion of the court was delivered by: Marovitz, District Judge.

MEMORANDUM OPINION

Defendant's Motions for Bill of Particulars and for Production of Statement

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 Procedure.

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 overstatement.

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, supra.

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 ...


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