Spriggs v. United States, No. 14409.

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: STEPHENS, POPE and FEE, Circuit
• Citation: 225 F.2d 865
• Parties: Claude E. SPRIGGS, Appellant, v. UNITED STATES of America, Appellee.
• Docket Number: No. 14409.
• Decision Date: 23 September 1955

225 F.2d 865 (1955)

Claude E. SPRIGGS, Appellant,
v.
UNITED STATES of America, Appellee.

No. 14409.

United States Court of Appeals Ninth Circuit.

April 25, 1955.

Rehearing Denied September 23, 1955.

225 F.2d 866

Claude E. Spriggs, Jack C. Cavness, Phoenix, Ariz., for appellant.

Jack D. H. Hays, U. S. Atty., Robert S. Murlless, Asst. U. S. Atty., Phoenix, Ariz., for appellee.

Before STEPHENS, POPE and FEE, Circuit Judges.

JAMES ALGER FEE, Circuit Judge.

Defendant was indicted February 26, 1953, on a charge of attempting to defeat and evade his income tax¹ for the year 1947, and was convicted by a jury on April 5, 1954. Judgment and sentence followed, from which this appeal was taken.

The history of a previous conviction on a substantially similar charge must be reviewed for an understanding of the points raised herein. An indictment returned against Spriggs on April 3, 1951, contained three counts. He was acquitted on the first two counts, which relate to other years, and we concern ourselves only with Count III, which seems to have been in the same terms as the single count of the present indictment. A bill of particulars was granted as to the first indictment. The particulars specified as to Count III were (a) unreported taxable capital gains of $1,698.15 on the sale of the "Collins" property, (b) unreported taxable capital gains of $544.64 on the sale of the "Eastwood" property, and (c) overstatement of depreciation on the "Henshaw Road" property. The specific charge as to the latter was a false representation of cost.

A jury was impaneled and the trial was held. During the course thereof, defendant moved for the striking of portions of the bill of particulars as to Count II and for judgment of acquittal as to that count. Both motions were granted by the trial judge then presiding. There is no question as to this count, and the judgment of acquittal thereon was a finality.

At the same time, defendant moved for judgment of acquittal on Count III, which the trial judge then presiding denied and submitted this count to the jury. However, motion to strike portions of the bill of particulars was allowed. The proceeding was as follows:

"Counsel for defendant now moves for Judgment of Acquittal as to Count 3 of the Indictment on grounds and for the reasons the evidence adduced does not sustain the allegations of Count 3 and moves to strike portions of Bill of Particulars as to Count 3.

225 F.2d 867

"It is Ordered that subdivisions (a) and (b) of said Bill of Particulars as to Count 3 of the Indictment be striken, and

"It is Ordered that said Motion for Judgment of Acquittal as to Count 3 of the Indictment be denied."

The defendant was convicted by the jury on Count III, attenuated by the striking of (a) and (b) of the bill of particulars, by which it may be understood that evidence of these transactions was not to be considered by the jury.

Appeal was taken to this Court, and the judgment of conviction was reversed, Spriggs v. United States, 9 Cir., 198 F. 2d 782, on the ground that no sufficient evidence was adduced to prove the corpus delicti independently of the admissions of defendant. Thereafter, based upon a stipulation of counsel for defendant and the then United States Attorney, the indictment was dismissed.

The present indictment was returned by another grand jury advised by a new United States Attorney, and the cause came on for trial before Hon. Claude McColloch, sitting by assignment. A motion to dismiss the indictment, for bill of particulars, a "motion to dismiss (or quash) the indictment" and a plea in bar were presented. These were all eventually denied. However, after the court ruled that the so-called plea in bar was denied, the United States Attorney presented an order granting the plea in respect to the matters referred to as (a) and (b) above and denying the plea with respect to the fraudulent depreciation designated above as (c), which was entered by the court. The court subsequently vacated this order and entered an order in accordance with its previous oral ruling denying the plea in bar in toto.

On trial, there was a motion for mistrial because the opening statement of the prosecuting attorney contained references to the "Collins" property, referred to above in subdivision (a), and to the "Eastwood" property, referred to above in subdivision (b). These were denied by the trial judge. Evidence was introduced as to the alleged profit on these two transactions and on the alleged fraudulent depreciation referred to above in subdivision (c). At...