Singer v. United States

• Decision Date: 02 April 1932
• Docket Number: No. 4720.,4720.
• Parties: SINGER v. UNITED STATES.
• Court: U.S. Court of Appeals — Third Circuit

58 F.2d 74 (1932)

SINGER v. UNITED STATES.

No. 4720.

Circuit Court of Appeals, Third Circuit.

April 2, 1932.

Winne & Banta and Walter G. Winne, all of Hackensack, N. J., for appellant.

Phillip Forman, U. S. Atty., of Trenton, N. J., and John Grimshaw, Jr., Asst. U. S. Atty., of Paterson, N. J.

Before WOOLLEY and DAVIS, Circuit Judges, and JOHNSON, District Judge.

PER CURIAM.

This is an appeal from a judgment of the District Court entered upon the verdict of a jury convicting the appellant of attempting to defeat and evade a tax upon his income for the year 1926 in violation of section 1114 (b) of the Revenue Act of 1926 (26 USCA § 1266).

The defendant was indicted and charged with receiving a net income of $400,338.90 on which he should have paid an income tax of $92,018.49, but instead he filed a return showing no net income.

His alleged income aggregating $409,788.90 was made up as follows:

                  Commissions .........................  $ 1,200.00
                  Interest ............................      300.00
                  Profit from sale of real estate .....   15,250.00
                  Income from partnership .............  163,570.26
                  Other income ........................  240,635.19  $420,955.45
                                                         __________
                  Business Loss — Restaurant ..........    9,926.55
                  Loss on rent item ...................    1,240.00    11,166.55
                                                         __________  ___________
                    Total income ......................              $409,788.90
                

From this sum was deducted $9,450 allowance for interest, taxes, contributions, and personal exemptions, which left a net balance of $400,338.90.

Defendant tried to ascertain what the above items meant. His attorney wrote to the United States Attorney on September 15, 1930, for a bill of particulars as follows:

"Dear Sir: The defendant demands a statement of the particulars of the items described as gross income $409,788.90 in the indictment herein, and particularly demands a detailed statement of the items constituting `Income from partnership $163,570.26', and `other income $240,635.19.'"

Twelve days thereafter he received the following reply:

"Dear Sir: Replying to your demand for particulars I would say that the gross income is set forth in the indictment in, I think, sufficient detail. The partnership referred to is the Chelsea Beverage Company. The other income is the unidentifiable income obtained by an examination of his bank deposit, together with such other records as the books disclose.

"It would seem to me that for the present time this is all the Government is compelled to give."

On September 30, 1930, defendant's attorney gave the following notice of a motion for a bill of particulars:

"Dear Sir: The defendant hereby serves notice that the particulars heretofore demanded on September 15, 1930, have not been supplied by the Government and that the attempted reply to said demand for bill of particulars by letter of September 27, 1930, is deemed insufficient in law.

"Defendant therefore serves notice of motion before the United States District Court for the District of New Jersey of this demand for further particulars according to the formal demand heretofore made on September 15, 1930."

At the argument of the motion, counsel for defendant insisted that he was in absolute need of a bill of particulars in order to prepare his defense. He desired particularly to know what was meant by "Income from partnership $163,570.26" and "other income $240,635.19." If these items were true net income, as charged, constituting a part of the $400,338.90, he did not understand them, and could not properly prepare his defense. If, on the other hand, they were not net income, but aggregate gross partnership receipts and bank deposits, and the government knew this and refused to disclose it, the pleading was bad, and the false figures could have been stricken from the indictment. A bill of particulars would have enabled the defendant on the one hand to prepare his defense, or, on the other, to attack the indictment. The refusal to furnish a bill of particulars left him in a dilemma, and was prejudicial.

The closing statements of one of the real estate title companies with which the defendant dealt and the bank records were put in evidence over objection, and a government witness was asked if from these records he could state what the defendant's income for 1926 was. He said he could, and, over objection, was permitted to state that it was over $400,000. And yet, through the information brought out during cross-examination, and the facts which the court required the government to give to the defendant, which several times necessitated the cessation of the trial for hours, nearly $300,000 was eliminated from the $400,338.90 which the government charged, and the witness said, was the defendant's net income, on which he should have paid the tax of $92,018.49. These charges, this testimony, and the great number of irrelevant figures could not but prove harmful to the defendant and prejudice the jury against him. All this could and would have been avoided by a proper bill of particulars which would have shown the falsity of the allegations and enabled the defendant to eliminate untrue and prejudicial charges from the indictment and irrelevant and harmful evidence from the jury. The entire item of alleged "other income" of $240,635.69, except about $10,000 was eliminated in the course of the trial from the indictment as income on which a tax had to be paid.

The net income of $400,338.90 was made up in part by "Income from partnership $163,570.26." This, it was discovered on the trial, was one-half of the gross receipts of the Chelsea Beverage Company for 1926. In his reply to the request for a bill of particulars, the government said that "the partnership referred to is the Chelsea Beverage Company." But whether it was the gross receipts, one-half of them, or net income for the whole or part of the company computed on some unknown basis or method, the defendant did not know.

After counsel was informed that it related to the Chelsea Beverage Company, he went to Trenton, and in conference with the court and Assistant United States Attorney asked permission to inspect the books of the company which had been taken by the government. This request was apparently granted, but later on counsel was notified that "upon mature deliberation I do not see why the Government should permit Mr. Singer or his attorney to inspect the books." The government said that "he could tell from his own records whether or not this income had been received." The difficulty was that he did not know just what this item included, and his own records, the books, were in the...