United States v. Anderson

• Decision Date: 20 May 1966
• Docket Number: Crim. A. No. 894.
• Citation: 254 F. Supp. 177
• Parties: UNITED STATES of America, Plaintiff, v. Sam L. ANDERSON, Defendant.
• Court: U.S. District Court — Western District of Arkansas

254 F. Supp. 177

UNITED STATES of America, Plaintiff, v. Sam L. ANDERSON, Defendant.

Crim. A. No. 894.

United States District Court W. D. Arkansas, Hot Springs Division.

May 20, 1966.

Charles M. Conway, U. S. Atty., Ned A. Stuart, Jr., Asst. U. S. Atty., Fort Smith, Ark., for plaintiff.

Smith, Williams, Friday & Bowen, Little Rock, Ark., for defendant.

JOHN E. MILLER, Chief Judge.

On March 10, 1966, the Grand Jury returned a three-count indictment in the Hot Springs Division of this court, charging the defendant, Sam L. Anderson, with violating 26 U.S.C.A. § 7206(1).

Count I charges that on or about April 15, 1960, in the Western District of Arkansas, the said defendant, Sam L. Anderson, "did wilfully and knowingly make and subscribe a joint income tax return, Form 1040, for the calendar year 1959, in his name and in the name of his wife, which was verified by a written declaration that it was made under the penalties of perjury, which said joint income tax return, Form 1040, for the calendar year 1959, he did not believe to be true and correct as to every material matter in that in the said joint income tax return, Form 1040, for the calendar year 1959 on Schedule C thereof entitled `Profit (or Loss) from Business or Profession' he stated the Total Receipts to be $9,175.80, whereas he then and there well knew and believed, he had total receipts substantially in excess of that amount to-wit: approximately $32,000.00 in violation of Section 7206(1), Internal Revenue Code; 26 U.S.C. § 7206(1)."

Counts 2 and 3 are identical with Count 1 except that Count 2 charges that the offense was committed on or about April 14, 1962, and that the income tax return was for the calendar year 1961, and that the defendant stated his total receipts to be $9,588.10, whereas they were approximately $17,000.00. Count 3 charges that the offense was committed on or about April 14, 1963, that the income tax return was filed for the calendar year 1962, and that the defendant stated that his gross receipts were $10,277.00, whereas the gross receipts were approximately $17,000.00.

On April 25, 1966, the defendant accompanied by his attorney appeared in open court in the Hot Springs Division and entered a plea of not guilty to all counts. Immediately preceding arraignment the defendant filed a motion for a bill of particulars in which he prayed that the court order and direct the United States to serve and file a bill of particulars as to certain matters. In view of the conclusions reached by the court, it is deemed unnecessary to set forth in toto the motion.¹

In numbered paragraph 1 the defendant's demands are stated as follows:

"1. A statement as to whether the government intends to rely on the `omission of specific items' methods for reconstruction of income and, if so, an exact statement setting forth the following:

"(a) The date, amount, payor, and character of each item in the year 1959.

"(b) The date, amount, payor, and character of each item in the year 1961.

"(c) The date, amount, payor, and the character of each item in the year 1962."

In numbered paragraph 3 the defendant's demands are stated as follows:

"3. A statement as to whether the government intends to use the `bank deposits and expenditures' method for reconstruction of income or to corroborate the omission of specific items and, if so, an exact statement setting forth the following:

"(a) A list of the defendant's bank deposits in the year 1959, reflecting thereon the amount, date and alleged character of each item.

"(b) A list of the defendant's bank withdrawals in the year 1959, reflecting thereon the amount, date and use of each withdrawal.

"(c) A list of the defendant's bank deposits in the year 1961, reflecting thereon the amount, date and alleged character of each item.

"(d) A list of the defendant's bank withdrawals in the year 1961, reflecting thereon the amount, date and use of each withdrawal.

"(e) A list of the defendant's bank deposits in the year 1962, reflecting thereon the amount, date and alleged character of each item.

"(f) A list of the defendant's bank withdrawals in the year 1962, reflecting thereon the amount, date and use of each withdrawal."

On May 9, 1966, the United States served and filed a response to the motion, in which it is stated:

"The matters sought in said motion are evidentiary, within the defendant's own knowledge, and are not necessary to the defendant in the preparation of his defense. The offense is sufficiently stated in the indictment to bar a second possible prosecution for the same offense.

"The granting of said motion would unduly limit the scope of plaintiff's proof and prematurely disclose the same prior to trial.

"WHEREFORE, the United States of America prays that the motion of Sam L. Anderson, defendant, for a Bill of Particulars be denied."

Prior to the serving and filing by the United States of the response, the defendant had served the United States Attorney and had submitted to the court a memorandum brief in support of the motion. On May 9, 1966, the United States served upon the attorneys for the defendant and submitted to the court a memorandum in opposition to defendant's brief.

Rule 7(f), Fed.R.Crim.P., provides that the court for cause may direct the filing of a bill of particulars, which may be amended at any time subject to such conditions as justice requires. (This subsection has been amended effective July 1, 1966, but the amendment is not material to the consideration and determination of the motion.)

As heretofore set forth, the indictment in each count charges that the defendant wilfully and knowingly made and subscribed a joint income tax return, Form 1040, for the calendar year involved in his name and the name of his wife; that the return was verified by written declaration made under the penalties of perjury; that the defendant did not believe the return to be true and correct as to every material matter; and at the time of subscribing and filing the return, he had total receipts substantially in excess of the amount shown on the return.

In the memorandum submitted by the United States in opposition to the motion, the following statements appear:

"In the face of these objections, however, the Government voluntarily states that the proof is concerned with the omission of specific items from total receipts for the years 1959 and 1961 and from gross receipts for the year 1962. For the purpose of corroborating the above proof and also to show wilfulness, intent, and pattern of conduct, the Government may introduce proof of bank deposits and expenditures and other bank records."

* * * * * *

"2. Only one part of the income tax return, Schedule C, is in question thereby informing the defendant that the material matter question does not concern his personal exemptions, his itemized deductions, dividends, interest, pension and annuities, rents and royalties, depreciation, but is concerned only with Schedule C which pertains to his profession as a lawyer."

An examination of Schedule C of Form 1040 for the calendar year 1959 discloses that it was designed to obtain from the taxpayer a statement of "Profit (or Loss) from Business or Profession." The first interrogatory required to be answered is as follows:

"1. Total receipts , less allowances, rebates and returns ."

In each count of the indictment it is charged that the defendant did not believe to be true and correct in every material matter the figures inserted by him in question 1 of Schedule C, as above stated, and that he well knew and believed that he had total receipts substantially in excess of the amount stated by him to be his total receipts in Counts 1 and 2 and gross receipts in Count 3 for the particular calendar year mentioned in the court. It is clear that the part of the statement "less allowances, rebates and returns" is not material.

Although Rules 7(f), 16 and 17(c), Fed.R.Crim.P., have different functions and applications, they serve a related purpose. They should be liberally interpreted to carry out the purpose intended, which is to enable the accused to meet the charges presented against him. Here the defendant is only proceeding under Rule 7(f), and the court need only determine whether the information sought by the motion is relevant and necessary to enable the defendant to meet the charges.

The indictment is good as against a motion to quash or dismiss. The proper approach and consideration to be given the motion were well and forcibly stated in the case of United States v. Smith, (W.D.Mo.1954) 16 F.R.D. 372, by former Mr. Associate Justice Whittaker while he was United States District Judge for the Western District of Missouri. The contentions of the defendant, as well as of the United States, in the case there under consideration are similar to the contentions made by the parties in the instant case. In disposing of the contentions, Judge Whittaker, beginning at page 374, stated:

"Certainly the fact that an indictment or information conforms to the simple form suggested in the rules is no answer or defense to a motion for a bill of particulars under Rule 7(f). Rule 7(f) necessarily presupposes an indictment or information good against a motion to quash or a demurrer. Its proper office `is to furnish to the defendant further information respecting the charge stated in the indictment when necessary to the preparation of his defense, and to avoid prejudicial surprise at the trial', and when necessary for those purposes, is to be granted even though it requires `the furnishing of information which in other circumstances would not be required because evidentiary in nature', and an accused is entitled to this `as of right'. U. S. v. U. S. Gypsum, D.C., 37 F.Supp. 398, 402. To the same effect are Singer v. U. S., 3 Cir., 58 F.2d 74, U. S. v. Allied Chemical & Dye Corp., D.C., 42 F.Supp. 425, 428; Fontana v. U. S., 8 Cir., 262 F. 283. It seems quite clear that `where charges of an indictment are so general that they

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