And we think it states wise policy. Particularly is this true
today when the criminal discovery rules are being broadened
steadily to afford the defendant the opportunity to more
adequately prepare his defense. The relaxation of Rule 7(f),
while relevant herein, is only one manifestation of this
development. The time is rapidly approaching when "surprise" will
be eliminated from the criminal trial, and the "sporting theory
of justice" will be a relic of the past for criminal defendants
as it is already for civil litigants. See e.g. Brennan, The
Criminal Prosecution: Sporting Event or Quest for Truth, 1963
Wn.U.L.Q. 279; Everett, Discovery in Criminal Cases — In Search
of a Standard, 1964 Duke L.J. 477.
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 be answered.
Items (5) and (6) are inapplicable.
Item (7) asks whether the government expects to prove that the
gross income of defendant was understated, and should, therefore,
Those parts of Item (8) requesting the nature and sources of
the alleged unreported income should be answered, but the amounts
need not be divulged.
Item (9), which asks if proof of any false deductions will be
offered, and that part of Item (10) requesting a list of those
deductions must be answered. That part of Item (10) requesting
amounts should be disregarded.
Item (11), which seeks to have the government itemize the
figures shown in the indictment need not be answered, but Item
(12), which asks if the government will offer proof of any income
in excess of the amounts stated in the indictment, comes within
the Dolan guidelines and must be answered.
Item (13), requesting the nature, sources, and dates of
receipts indicated in Item (12) should be furnished, but requests
for amounts and specific names are denied.
Items (14), (15) and (16), requesting information regarding
other acts not alleged in the indictment which the government
intends to use to prove willfulness, need not be answered.
Hence, the government must respond to Items (1), (7), (8), (9),
(10), (12), and (13), except for the parts which we indicated
need not be answered.
II. Motion to Produce Defendant's Alleged Statement
Defendant alleges that he furnished an unsigned statement to
the Internal Revenue Service in Chicago, at the inception of this
investigation, and moves that the government furnish a copy of it
Amended Rule 16(a)(1) of the Federal Rules of Criminal
"Upon motion of a defendant the court may order the
attorney for the government to permit the defendant
to inspect and copy or photograph any relevant (1)
written or recorded statements or confessions made by
the defendant, or copies thereof, within the
possession, custody or control of the government, the
existence of which is known, or by the exercise of
due diligence may become known, to the attorney for
the government * * *"
The statement described by defendant seems to be encompassed
within the language of the Rule. The government can have no valid
objection to producing it in view of the salutary purpose
intended to be served by the recent amendment. The Advisory
Committee's Note describes the new rule as "in line with what the
Supreme Court * * * described as the `better practice'", in