United States v. Dolan, Crim. A. No. 8739.
| Decision Date | 16 July 1953 |
| Docket Number | Crim. A. No. 8739. |
| Citation | 113 F. Supp. 757 |
| Court | U.S. District Court — District of Connecticut |
| Parties | UNITED STATES v. DOLAN. |
COPYRIGHT MATERIAL OMITTED
Adrian W. Maher, U. S. Atty., New Haven, Conn., for plaintiff.
Curtiss K. Thompson, Bernard Greenberg, New Haven, Conn., for defendant.
The defendant has been indicted for attempt to evade income taxes, by filing false income tax returns in violation of Section 145(b) of the Internal Revenue Code, 26 U.S.C. § 145(b). The indictment is in three counts laid, respectively, on the calendar years 1946, 1948 and 1949. Each count states only the reported net income and tax due, and the amounts claimed by the government as the correct net income and the correct tax due. There is no further particularization. The bill of particulars seeks as to each count an order requiring the government to break down into fifteen specifications the figures which it alleges as representing the correct net income. The bill is based on a claim that the specifications sought are necessary to the preparation of the defense and to protect against surprise.
Certainly these stated objectives of the bill are proper for relief by bill of particulars. Indeed, in my view, the function of such a bill is even broader: I think it may be invoked to save a defendant wholly needless labor in preparing his defense. Thus, if the case is such that the government relies for its proof of fraud solely upon one or more specific entries in the defendant's returns, it may properly be required to identify those entries so that the defendant in his preparation for trial may be in readiness to submit all possible evidence which he thinks will negate a showing of fraud founded on those entries, without expending the labor which would be necessary to present evidence as to entries which the government will not challenge. And so for reasonable assistance in the preparation of his defense as well as to prevent unfair surprise, I generally deem it to be a wise exercise of discretion in tax cases such as this to grant a motion requiring the government to identify every basic entry on a return the falsity of which it will seek to prove on trial. A basic entry in this sense is an underlying entry as distinguished from one which is merely a computation from other entries actually stated on the return.
By the same token, I think that generally in such cases, if by motion for a bill the defendant so requests, the government should be required to state if it will offer proof of fraud based upon the omissions from the tax return of data which the defendant was legally bound to report and, if so, to identify the omission with sufficient specificity to enable the defendant to have in readiness on trial any evidence relevant to the claimed omissions. Cf. U. S. v. Lebis, D.C., 92 F.Supp. 612. If, confronted with an order for such a bill, the Government is not able fully to state the sources of claimed unreported income it will, of course, be a sufficient compliance if it shall state that it proposes to prove the receipt of unreported income by expenditures made during the taxable period and proof as to the defendant's net worth on a specified date or dates which, it is claimed, will demonstrate a fraudulent omission.
Except perhaps in exceptional circumstances, it appears to me to be an unwise exercise of discretion to require the government to state by bill of particulars the amount in dollars of any claimed understatement or overstatement made in the tax return. If the government discloses that it will rely only on specific basic entries or identified omissions in the return, the defendant generally will have all the information reasonably necessary for the preparation of his defense and to prevent against surprise. Likewise, when the government discloses that it will rely on the so-called expenditures or net worth theory, it is sufficient if it discloses the period during which it will offer proof of expenditures made and the dates as of which it will offer proof of the defendant's net worth. U. S. v. Caserta, 3 Cir., 199 F.2d 905; U. S. v. Chapman, 7 Cir., 168 F.2d 997.
Compliance by the government with the procedure envisaged above should generally satisfy the defendant's desire for particularity. If not, the resulting lack of particularity may be due to the fact that the items on the defendant's return which the Government proposes to challenge are stated with less particularity than the law and regulations require, or to the fact that deficiencies in the defendant's books and records did not permit of greater particularity. In any event, to invoke the discretion of the court to compel greater particularity, the defendant's need therefor should be established by a demonstration that the need is real: a bare statement that the need exists is not enough. And no sufficient demonstration has been offered here in support of the motion.
It is true that there are cases, some of which the defendant cites in support of his pending motion, on which the government has been required to state what it claimed was a correct entry for the return. If these cases are based upon a theory that the government may not be allowed to prove that the return was fraudulent without proving just what the return would have been if untainted by fraud, I disagree. I doubt however, that these cases were decided on that theory. The reported decisions on which defendant relies fail to make it clear, to me at least, just why a statement of the claimed amount of understatement, or overstatement, was necessary to accomplish the proper objective of a bill, for aught that appears the rulings indicated in these opinions may have depended upon some exceptional feature of the case not discernible from the opinion.
But in the submission of the motion here, there was nothing to show that a bill of normal scope, as sketched above, would not fairly serve in this particular case. Here the motion wholly exceeds such scope. I must rule therefore that the motion be wholly denied.
It is so ordered.
The first count of this income tax evasion indictment is laid on the defendant's return for the year 1946. Defendant moves to dismiss on the ground that the six-year Statute of Limitations had run. 26 U.S.C. § 3748. The indictment was filed on March 20, 1953, more than six years after the alleged offense. Plainly the motion should be granted unless the Statute was tolled by the last sentence of the Statute, applicable only to certain offenses against the internal revenue laws, which reads as follows:
"Where a complaint is instituted before a commissioner of the United States within the period above limited, the time shall be extended until the discharge of the grand jury at its next session within the district."
The government contends that the quoted extract from the Statute is applicable because on March 13, 1953 a sworn and written complaint was made before the Commissioner by one giving his official title as "Special Agent" stating:
"That on or about March 14, 1947, at Guilford in the District of Connecticut, Joseph S. Dolan, Jr. did wilfully and knowingly attempt to evade income taxes due and did file a false and fraudulent tax return."
The complainant did not represent that his charge was based only on information and belief and no persons were named in this complaint as material witnesses in relation to this charge. The charge was made absolutely without purporting to show the sources of the complainant's knowledge.
The defendant contends in substance that the so-called "complaint" was ineffective to toll the Statute because it did not constitute a "complaint" within the meaning of that word as used in the quoted extract from the Statute.
Thus is raised a question of statutory interpretation which is not as simple as a first glance would indicate. By...
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United States v. Lavery
...United States v. Smith, D.C.W.D.Mo. 1954, 16 F.R.D. 372; United States v. Carb, D.C.E.D.N.Y.1954, 17 F.R.D. 242; United States v. Dolan, D.C.D.Conn.1953, 113 F.Supp. 757, 759, and of the factual situations there present, the defendant has been furnished sufficient details to prepare his def......
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U.S. v. D'Andrea
...many respects like tax evasion cases where a bill of particulars has been noted to be appropriate. For example, in United States v. Dolan, 113 F.Supp. 757, 759 (D.Conn.1953), Judge Hincks stated:(I)f the case is such that the government relies for its proof of fraud solely upon one or more ......
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Crouse v. State, 3131
...are entitled to at least the same validity and respect as that of any magistrate. Appellant also finds comfort in United States v. Dolan, D.C.Conn., 113 F.Supp. 757, 761, in which it is '* * * In our system of criminal administration he [the United States Commissioner] is often the first ju......
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United States v. Freeman, IP 58-CR-28.
...charged within or after the period would toll the limitation statute. Prior cases helpful to Court on this issue are: United States v. Dolan, D.C.Conn.1953, 113 F.Supp. 757; United States v. DeHardit, D.C.Va.1954, 120 F.Supp. 110; Pollock v. U. S., 5 Cir., 1953, 202 F.2d 281; United States ......