Enlow v. United States, 5464.

• Decision Date: 02 January 1957
• Docket Number: No. 5464.,5464.
• Citation: 239 F.2d 887
• Parties: Carl E. ENLOW, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

239 F.2d 887 (1957)

Carl E. ENLOW, Appellant, v. UNITED STATES of America, Appellee.

No. 5464.

United States Court of Appeals Tenth Circuit.

January 2, 1957.

Ray A. Curran, Lakewood, Colo. (Richard H. Simon, Englewood, Colo., was with him on the brief), for appellant.

John S. Pfeiffer, Asst. U. S. Atty., Denver, Colo. (Donald E. Kelley, U. S. Atty., Denver, Colo., was with him on the brief), for appellee.

Before BRATTON, Chief Judge, and HUXMAN and PICKETT, Circuit Judges.

PICKETT, Circuit Judge.

The defendant, Carl Enlow, was convicted on the first count of an indictment which charged him with the willful attempt to evade and defeat a large part of the income tax due and owing by him and his wife for the year 1949, by filing a false and fraudulent income tax return, in violation of 26 U.S.C.A. § 145(b).¹ This appeal is from a judgment and sentence of three years imprisonment and a fine of $500. The assignments of error relate to the denial of a motion for a bill of particulars and rulings upon the admissibility of evidence.

Defendant became Sheriff of Jefferson County, Colorado in 1949. The record on appeal does not contain any of the evidence offered by the government to prove the defendant's income for that year, but from statements in the record, the briefs and oral arguments, it appears that the disputed income had its source in sums alleged to have been received by the defendant while Sheriff as pay-offs for the illegal operation of slot machines and other gambling devices in his county. A timely motion for a bill of particulars was filed in which an order was sought directing the United States Attorney for the District of Colorado to furnish to the defendant the exact amount, the date and the source of each particular sum alleged to have been received as income by the defendant or his wife during the year 1949. In addition the motion requested that defendant be furnished with the name and address of each and every person alleged to have paid to the defendant or his wife any sums during the year 1949 which were included in the alleged gross income set forth in the indictment. Defendant's affidavit, attached to the motion, stated that he had no knowledge of having received any income during the year 1949 other than that shown in the income tax return and that unless the requested information was furnished, he would be unable to prepare his defense. This motion was denied.

The law is well settled that a motion for a bill of particulars in criminal cases is addressed to the sound discretion of the trial court and the action taken thereon will not be disturbed on appeal in the absence of an abuse of discretion. Wong Tai v. United States, 273 U.S. 77, 47 S.Ct. 300, 71 L.Ed. 545; Cefalu v. United States, 10 Cir., 234 F. 2d 522; Rubenstein v. United States, 10 Cir., 214 F.2d 667; Fischer v. United States, 10 Cir., 212 F.2d 441, and Rose v. United States, 10 Cir., 128 F.2d 622.²

The record on appeal here included only selected portions of the evidence introduced at the trial; it does not include the evidence by which the prosecution sought to prove defendant's income. From the record before us, we cannot ascertain whether a bill of particulars would have been of any assistance to the defendant in the preparation of his defense, or that he was not prepared to defend the charges without the requested information. If we assume that the disputed income is from pay-offs received from the illegal operation of slot machines and other gambling devices, the record does not disclose the evidence showing from whom these pay-offs were received. The payments may have been made by many or by a very few. The record does disclose that as early as 1951 the defendant testified before a grand jury investigating illegal gambling operations in Jefferson County and shortly thereafter Internal Revenue Agents questioned him concerning the same and inquired if he had received any payments from those conducting illegal gambling operations. At the request of Internal Revenue Agents he went to Omaha, Nebraska for the purpose of discussing his 1949 income tax return. In each interview he was asked if he had received any income from these sources and replied that he had not. Sometime after the motion was denied, the court entered an order directing the United States Attorney to produce for inspection all papers, documents or tangible objects which were obtained from and belonged to the defendant. The United States Attorney was also required to produce for inspection by defendant any books, papers, documents or tangible evidence to be offered in evidence at the trial which had been seized from third persons or obtained by process. Clearly on the record before us there was no abuse of discretion in denying the motion for a bill of particulars as shown. There is no suggestion that defendant was taken by surprise in the progress of the trial or was unprepared to meet the testimony relating to his income or that any substantial rights were prejudiced by the refusal to grant the motion. See Wong Tai v. United States, supra; Fischer v. United States, supra; and Rose v. United States, supra. With all the...