Bill of Particulars

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7203: Willful Failure to File Return, Supply Information, or Pay Tax: Bill of Particulars: Amendment

 

[75-2 USTC ¶9785] United States of America , Plaintiff-Appellee v. Peter Pandilidis, Defendant-Appellant

(CA-6), U. S. Court of Appeals, 6th Circuit, No. 74-1817, 10/24/75, Aff'g unreported Dist. Court Opinion

[Code Sec. 7203]

Failure to file return: Failure to state correct date on indictment: Reversible error: Motion for new trial: Abuse of discretion: Omission from jury instruction: Contradictory conduct of IRS officials.--The correction of an indictment against the taxpayer for failure to file his tax return by filing a bill of particulars was not reversible error, since the taxpayer's right to notice and fair opportunity to defend was not infringed, since he was made aware of the amendment well in advance of trial; neither was his freedom from double jeopardy infringed since the record was sufficiently detailed to protect him against a subsequent prosecution for the same offense; nor was the taxpayer prejudiced by the fact that the corrected information was not sent to the grand jury, since the taxpayer did not have a constitutional right not to be convicted except after indictment by a grand jury. The Court further held that the District Court did not abuse its discretion by denying the taxpayer's motion for a new trial based on newly discovered evidence. The Court further held that the District Court did not err by omitting the phrase "evil motive" from its jury instructions, since the instructions as given were consistent with the guidelines set forth in United States v. Bishop, 73-1 USTC ¶9459, 412 U. S. 346. The Court further held that the District Court did not err in excluding evidence of contradictory conduct by IRS officials, since such evidence is not admissible as evidence of the fact.

William W. Milligan, United States Attorney, Rob ert A. Steinberg, 722 U. S. Court-house, Cincinnati, Ohio, for plaintiff-appellee. H. Fred Hoefle, 409 Second Nat'l Bldg., John J. Kelley, Jr., 1306 Fourth & Walnut Bldg., Cincinnati, Ohio, for defendant-appellant.

Before CELEBREZZE, Circuit Judge; MCCREE, Circuit Judge; DEMASCIO, ^* District Judge.

DEMASCIO, District Judge:

On August 3, 1973, a grand jury returned an indictment charging the defendant with failure to file his 1968 and 1969 federal income tax returns on or before April 15 of each year, ¹ in violation of 26 U. S. C. §7203. ² The April 15 date mentioned in the indictment was erroneous because appellant had received extensions to file his 1968 and 1969 returns until May 30, 1969 and May 31, 1970 respectively. At a pre-trial conference held on September 17, 1973 , the government attorney informed defendant's counsel that he intended to correct the indictment by filing a "bill of particulars" reflecting such extensions. Thus, defendant's counsel was aware of the erroneous dates and agreed to the filing of the bill of particulars. ³ The bill was filed on September 21, 1973 , and provides:

I. With respect to Count I of the indictment, the United States intends to prove that the defendant, Peter Pandilidis, requested and received from the Internal Revenue Service an extension for filing his 1968 income tax return. The extension required him to file that return on or before May 31, 1969 . The United States intends to prove that he did willfully and knowingly fail to make said income tax return.

II. With respect to Count II of the indictment, the United States intends to prove that the defendant, Peter Pandilidis, requested and received from the Internal Revenue Service an extension for filing his 1969 income tax return. The extension required him to file that return on or before May 30, 1970 . The United States intends to prove that he did willfully and knowingly fail to make said income tax return.

Thereafter, the defendant proceeded to a jury trial on November 6, 1973 , and was convicted on both counts.

On appeal, the defendant raises several allegations of error. The most substantial issue, first presented at oral argument before this court, compels us to decide whether an indictment for a misdemeanor may be amended prior to trial by filing a bill of particulars to correct a material allegation. ⁴

The filing of the bill of particulars effectuated an amendment to the indictment. Ordinarily, an indictment may be amended only by subsequent action of the grand jury. Stirone v. United States, 361 U. S. 212 (1960); Ex parte Bain, 121 U. S. 1 (1887). This rule, constitutional in origin, has developed within the context of the Fifth Amendment, which protects an accused from prosecution for high crimes except upon charges filed by a grand jury. In both Stirone and Bain, the Supreme Court concluded that effectuation of the Fifth Amendment protections required the preclusion of substantial variations in an indictment unless approved by a grand jury. "Any other doctrine would place the rights of the citizen, which were intended to be protected by the constitutional provision, at the mercy or control of the court or prosecuting attorney. . . ." Ex parte Bain, supra at 13. While a mere change in date is not normally considered a substantial variation in an indictment, where the date of the alleged offense affects the determination of whether a crime has been committed, the change is considered material. Since a crime is committed under 26 U. S. C. §7203 only if the defendant fails to file a return on the date established by statute, regulation or admin istrative action, time is an essential element of the offense and any change in the date as charged is a substantial variation. United States v. Goldstein [74-2 USTC ¶9664], 502 F. 2d 526 (3rd Cir. 1974). Thus, the Fifth Amendment prohibits, other than by grand jury action, the changing of a date in a felony indictment where the date is an essential element of the offense. While this defendant was convicted of a misdemeanor that could have been prosecuted by information as well as by indictment, we agree with the defendant that even in misdemeanor cases, once the prosecution elects to proceed by indictment it must follow the rules developed to govern use of indictments. United States v. Fischetti, 450 F. 2d 34 (5th Cir. 1971), cert. denied, 405 U. S. 1016; United States v. Goldstein [74-2 USTC ¶9664], 502 F. 2d 526 (3rd Cir. 1974); Fed. R. Crim. P. 7(e). Accordingly, it is apparent that the district court erred in permitting amendment to the indictment by filing a bill of particulars. The issue we must resolve is whether the rule of automatic reversal required when an essential element of a felony indictment is amended other than by grand jury action should be extended to an indictment charging a misdemeanor or whether convictions for misdemeanors charged by a subsequently amended indictment should be evaluated in light of the harmless error doctrine contained in Fed. R. Crim. P. 52(a).

The Third Circuit recently resolved this issue against the government in United States v. Goldstein, supra, where it concluded that even in misdemeanor cases, in which indictments are not constitutionally required, any amendment to an indictment without grand jury action must result in automatic reversal. This conclusion was based on a finding of per se prejudice to a defendant prosecuted by an indictment that is subsequently amended. The court noted that prejudice to a defendant necessarily follows an amendment to an indictment because the government obtains distinct advantages from the indictment procedure; it benefits from discovery through the use of the grand jury process and from the possibility that a jury verdict might be subtly influenced by the fact that an impartial grand jury found probable cause to charge the accused. ⁵

It may be true that the government obtains an advantage by initiating prosecution by indictment. However, it does not follow that such an advantage should result in automatic reversal of the defendant's misdemeanor conviction. Rather, we think that reversal should take place only where the amendment of the indictment results in actual prejudice to any of the interests of the defendant protected by the indictment procedure.

The rules governing the content of indictments, variances and amendments are designed to protect three important rights: the right under the Sixth Amendment to fair notice of the criminal charge one will be required to meet, the right under the Fifth Amendment not to be placed twice in jeopardy for the same offense, and the right granted by the Fifth Amendment, and sometimes by statute, ⁶ not to be held to answer for certain crimes except upon a presentment or indictment returned by a grand jury. Russell v. United States , 369 U. S. 749 (1962); United States v. DeCavalcanee, 440 F. 2d 1264 (3rd Cir. 1971); United States v. Bryan , 483 F. 2d 88 (3rd Cir. 1973); Gaither v. United States , 413 F. 2d 1061 (D. C. Cir. 1969). The rule preventing the amendment of an indictment should be applied in a way that will preserve these rights from invasion; where these rights are not threatened, rules governing indictments should not be applied in such a way as to defeat justice fairly admin istered.

In this case, the first two of these interests were in no way infringed by the amendment to the indictment. The defendant's right to notice and fair opportunity to defend was not infringed, since he was made aware of the amendment well in advance of trial; neither was his freedom from double jeopardy infringed since the record was sufficiently detailed to protect him against a subsequent prosecution for the same offense. Thus, defendant's argument must stand or fall on the third interest protected by the indictment procedure, viz, the constitutional right not to be held to answer for certain crimes except upon a presentment or indictment. United States v. Goldstein, supra at 529.

Defendant argues that he suffered prejudice in that, since evidence of the extension was never submitted to the grand jury, an impartial group of citizens did not have occasion to consider whether there was probable cause to prosecute. However, this function "has no relevance to an indictment which is not constitutionally required." United States v. Goldstein, supra at 532 (Hunter, J. dissenting). The Fifth Amendment provides that "[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a present or indictment of a Grand Jury . . ." Since appellant was not charged with an infamous crime, ⁷ he cannot rely on the constitutional right to be convicted only after indictment by a grand jury. Neither did appellant, under federal law, have a statutory right not to be held to answer for a violation of §7203 except upon a presentment or indictment.

If we found constitutional error, we would have to determine whether the interest protected was so substantial that it could not be disregarded even if the error were "harmless beyond a reasonable doubt." Chapman v. California , 386 U. S. 18, 24 (1967). However, since the error permitting amendment to the indictment in this case did not reach constitutional dimensions, the appropriateness of reversal must be determined under Rule 52(a) Fed. R. Crim. P., which provides:

"[A]ny error, defect, irregularity or variance which does not affect substantial rights shall be disregarded."

In this case, the defendant has failed to identify any substantial rights affected by the amendment. It is apparent from this record that the defendant, himself an attorney, at all times knew that the date appearing in the original indictment was erroneous. The defendant was made aware in sufficient time prior to trial that the extended date for filing would be used. Moreover, the defendant, having consented to the filing of the bill of particulars, may not now assert surprise. Additionally, the defendant has not identified any evidence that the prosecutor may have gained through a grand jury proceeding not otherwise available from other sources. Nor can we find from this record any substantial likelihood that the jury's verdict was influenced by its awareness that an indictment had been returned by an impartial grand jury. The evidence of the defendant's guilt presented by the government was convincing beyond a reasonable doubt. Under these circumstances, we fail to see how prejudice could be identified. The error, therefore, did not affect any of the defendant's substantial rights and does not require reversal under Rule 52(a) Fed. R. Crim. P.

The defendant advanced three other objections on appeal. First, the defendant contends that the district court erred in denying his motion for new trial, which was based upon the submission of affidavits contradicting the character evidence of a government witness. The district court determined that the newly discovered evidence did not concern a material issue and, therefore, did not require a new trial. A motion for a new trial based on newly discovered evidence is addressed to the sound discretion of the district court. United States v. Crowder, 351 F. 2d 101 (6th Cir. 1965). We cannot find that there was an abuse of discretion in denying the request in this instance. Second, the defendant contends that the district court erred by omitting the phrase "evil motive" in its instruction to the jury concerning the definition of willfulness. We have reviewed the jury instructions as a whole and find them clearly consistent with the guidelines set forth in United States v. Bishop [73-1 USTC ¶9459], 412 U. S. 346 (1973). Finally, the defendant complains that the district court precluded the admission of evidence of actions taken by the Central Service Center of the Internal Revenue Service after defendant had filed his returns on February 18, 1971 . The defendant sought to introduce this evidence, which the defendant thought demonstrated that an agent of the government believed the defendant guilty of no more than a civil offense, to establish that defendant was not guilty of the criminal offense with which he was charged. While evidence of contradictory statements may be used to impeach a government agent, they may not be introduced to prove the truth of the statements offered. United States v. Santos , 372 F. 2d 177 (2nd Cir. 1967); United States v. Powers, 467 F. 2d 1089 (7th Cir. 1972). United States v. Santos, supra, at 180 points out that:

"[T]he inconsistent out-of-court statements of a government agent made in the course of the exercise of his authority and within the scope of that authority, which statements would be admission binding upon an agent's principal in civil cases, are not so admissible here [against the government] as 'evidence of the fact.'"

The trial court was correct in excluding this evidence.

Accordingly, the judgment is affirmed.

^* The Honorable Rob ert E. DeMascio, Judge , United States District Court for the Eastern District of Michigan, sitting by designation.

¹ Count I of the indictment charged in part that the defendant ". . . during the calendar year 1968 . . . by reason of such income he was required by law, following the close of the calendar year 1968 and on or before April 15, 1969, to make an income tax return to the District Director of Internal Revenue . . . that well knowing all of the foregoing facts, he did willfully and knowingly fail to make said income tax return . . ." Count II is identical except that it charges defendant with failing to file a 1969 return on or before April 15, 1970.

² 26 U. S. C. §7203 provides as follows:

Any person required under this title to pay any estimated tax or tax, or required by this title or by regulations made under authority thereof to make a return (other than a return required under authority of section 6015), keep any records, or supply any information, who willfully fails to pay such estimated tax or tax, make such return, keep such records, or supply such information, at the time or times required by law or regulations, shall, in addition to other penalties provided by law, be guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $10,000, or imprisoned not more than 1 year, or both, together with the costs or prosecution.

³ This "agreement," however, did not constitute a waiver of indictment because it was not made by the defendant in open court. See Fed. R. Crim. P. 7(b).

⁴ Generally, the sufficiency of an indictment must be tested by pre-trial motion pursuant to Rule 12(b), Federal Rules of Criminal Procedure; Gaither v. United States, 413 F. 2d 1061, 1072 (D. C. Cir. 1969); United States v. Doelker [64-1 USTC ¶9236], 327 F. 2d 343 (6th Cir. 1964); United States v. Norman, 391 F. 2d 212 (6th Cir. 1968). However, we consented to decide the issue even though a pre-trial motion challenging the validity of the indictment was never filed.

⁵ We are troubled by the suggestion in Goldstein that a petit jury might consider a grand jury indictment as tending to prove a defendant's guilt. It is permissible for a jury to infer guilt from the fact of an indictment or information. See Mathes & Devitt, Federal Jury Practice and Instructions §806.

⁶ In Russell v. United States, 369 U. S. 749 (1962), prosecution by indictment was not constitutionally required for the offense as charged. However, a statutory provision required prosecution only by indictment and that Court adopted a per se rule of reversal to protect this statutory right.

⁷ Infamous crimes are defined as those which can result in incarceration in a penitentiary. Mackin v. United States , 117 U. S. 348 (1886). The offense of failing to file a timely income tax return is not considered an infamous crime because the maximum sentence provided (one year) precludes incarceration in a pentitentiary. See 18 U. S. C. §4083: "A sentence for an offense punishable by imprisonment for one year or less shall not be served in a penitentiary without the consent of the defendant."

 

 

[54-1 USTC ¶9430] United States of America , v. Isidore Wolrich, Defendant

In the United States District Court for the Southern District of New York, No. C. 138-193, May 25, 1954

Criminal prosecution: Motion to amend bill of particulars.--Defendant was indicted for willfully attempting to evade income tax by filing a false and fraudulent return in which he knowingly understated his income. (In a previous proceeding, 54-1 USTC ¶9276, 119 Fed. Supp. 538, defendant's motion for the return of certain papers was denied.) The Government, seeking to claim that certain commissions were not included in his gross income, moved to amend its original and supplementary bills of particulars. Motion was granted on the ground that the source and amount of the concealed income were only evidentiary of the allegation that defendant had received income not reported in his return.

J. Edward Lumbard, United States Attorney, United States Courthouse, New York 7, N. Y. (Thomas W. Hill, Jr., of counsel), for plaintiff. Corcoran & Kostelanetz, 52 Wall Street, New York, N. Y., Arthur Block, 30 Broad Street, New York, N. Y., Louis Bender, 160 Park Row, New York, N. Y., for defendant.

Memorandum

SUGARMAN, District Judge:

In a prosecution for attempted evasion of income tax, the Government moves to amend its original and supplemental bills of particulars.

The Government seeks by the proposed amendment to claim that the defendant failed to include an item of $22,769.53, income from commissions, in computing gross income for the year 1945.

In its original bill of particulars, the Government claimed that the defendant's gross income was comprised of unreported sales, including an "adjustment" thereto in an unspecified amount. On defendant's motion a supplemental bill was ordered to clarify the composition of this adjustment. Such a bill was furnished and it appeared therein that the Government claimed that one item of the adjustment was the above-mentioned amount of unreported commissions income.

The defendant moved to strike this from the supplemental bill and the motion was granted without prejudice to the instant motion to amend.

The indictment in pertinent part charges:

"On or about the 15th day of May, 1946, in the Southern District of New York, ISIDOR WOLRICH, the defendant, did wilfully and knowingly attempt to defeat and evade a large part of the income tax due and owing by him to the United States of America for the calendar year 1945, by filing and causing to be filed with the Collector of Internal Revenue for the Third Collection District of New York a false and fraudulent income tax return, wherein he stated that his net income for said calendar year was the sum of $202,589.74, and that the amount of tax due and owing thereon was the sum of $163,640.16, whereas, as he then and there well knew, his net income for the said calendar year was the sum of $602,263.92, upon which said net income he owed to the United States of America an income tax of $539,333.90. (Title 26, Section 145(b), United States Code)."

In opposition to the motion to amend, the defendant contends (and it is not disputed) that the alleged failure to report the item of $22,769.53, income from commissions, as taxable income was not known to the Government until some time after the indictment was returned. Therefore, he argues, it was not included in the accusation by the Grand Jury embodied in the indictment and the Government ought not to be allowed to prove the receipt of such income at the trial since this motion to amend is in effect an attempt to try the defendant for a crime not presented to the Grand Jury. ¹

The defendant's position is not well taken. He is charged with attempting to evade part of his income tax by filing a return known to be falsely and fraudulently made.

The substance of the indictment charges defendant with filing a return, false and fraudulent in that he knowingly understated his taxable income with intent thereby to evade a substantial part of his income tax. The filing of such a false return is the "attempt" charged by the Grand Jury, not, as defendant claims, unreported sales, unreported commissions, or any other of defendant's financial transactions standing alone. ²

The source and amount of the concealed income is only evidentiary of the allegation that defendant had received income not reported in his 1945 return.

Were defendant to prevail on the theory offered in opposition to the instant motion, the Government would be precluded from offering any evidence in support of the essential elements charged in an indictment of this type unless such evidence had been presented to the Grand Jury prior to the return of the indictment. Such is not the law.

The indictment is couched in broad terms. The Grand Jury did not limit its indictment by charging that defendant had unreported income ³ from any particular source. Therefore, no prejudice to defendant appearing to result, the motion to amend the Government's original and supplemental bills of particulars is granted. ⁴

Settle order.

¹ Const. Amendment V.

² Spies v. U. S. , 317 U. S. 492 [43-1 USTC ¶9243].

³ Battjes v. U. S. , 6 Cir., 172 Fed. (2d) 1 [49-1 USTC ¶9149].

⁴ F. R. Crim. P. 7(f); U. S. v. Rosenblum, 7 Cir., 176 Fed. (2d) 321 [49-1 USTC ¶9314].

 

 

[61-1 USTC ¶9354] United States of America v. Ian Woodner, Defendant

U. S. District Court, So. Dist. N. Y., C 153-225, C 156-333, 189 FSupp 355, 11/28/60

[1939 Code Sec. 145(b)--similar to 1954 Code Sec. 7201]

Criminal prosecution: Motion to amend bill of particulars.--The defendant was indicted for attempted evasion of income taxes. The Government's motion for permission to amend its original bill of particulars was granted. The amendment did not change the charges against the defendant but rather merely set out additional evidence which the Government would use to sustain the charges.

S. Hazard Gillespie, Jr., United States Attorney, United States Courthouse, Foley Square, New York 7, N. Y. (Sherman J. Saxl, Assistant United States Attorney, United States Courthouse, Foley Square, New York 7, N. Y., of counsel), for plaintiff. Louis Bender, 170 Broadway, New York 38, N. Y., for defendant.

Opinion

SUGARMAN, District Judge:

The United States of America moves "for an order under Rule 7(f) of the Federal Rules of Criminal Procedure, permitting the plaintiff [sic] to amend its original bills of particulars herein".

In support of its motion, the government shows inter alia, that the defendant has been indicted for attempted evasion of income taxes due and owing for the years 1950-1953 inclusive.

On July 17, 1957 , the Grand Jury filed an indictment charging that:

"1. On or about the 18th day of July, 1951, in the Southern District of New York, IAN WOODER, the defendant, did wilfully and knowingly attempt to defeat and evade a large part of the income tax due and owing by him to the United States of America for the calendar year 1950 by filing and causing to be filed with the Collector of Internal Revenue for the Third Internal Revenue Collection District of New York, in the Borough of Manhattan, City of New York, a false and fraudulent income tax return, wherein he stated that his net loss for said calendar year was the sum of $14,775.58 and that there was no tax due and owing thereon, whereas in truth and in fact, as he then and there well knew, his net income for the said calendar year was the sum of $46,117.60, upon which said net income he owed to the United States of America an income tax of $21,453.33. (Section 145(b), Internal Revenue Code of 1939; Title 26, U. S. Code, Section 145(b))."

On September 12, 1958 , the Grand Jury filed another indictment charging in the first court that:

"On or about the 15th day of September, 1952, in the Southern District of New York, IAN WOODNER, the defendant, did wilfully and knowingly attempt to evade and defeat a large part of the income tax due and owing by him to the United States of America for the calendar year 1951 by filing and causing to be filed with the Director of Internal Revenue, Upper Manhattan District, New York, New York, a false and fraudulent income tax return, wherein it was stated that he had incurred a net loss for the said calendar year in the sum of $23,314.65 and that there was no tax due and owing thereon, whereas in truth and in fact, as he then and there well knew, his net income for the said calendar year was the sum of $31,491.30, upon which said net income there was owing to the United States of America an income tax of $13,370.78. [Section 145(b), Internal Revenue Code of 1939; Title 26, United States Code, Section 145(b)]."

On July 11, 1958 and on December 5, 1958 , the government filed bills of particulars relating to the charges contained in the indictments, in which it itemized unreported salary, capital gains, interest payments, rental income and constructive dividends allegedly received by defendant.

The bill of particulars addressed to indictment C 153-225 itemizes the unreported gross income as follows:

"1. For the calendar year 1950, the defendant had a gross income of $77,387.81, deductions of $31,270.21 and exemptions of $600.

2. The gross income of the defendant for the calendar year 1950 was received from the following sources:

Salary

Jonathan Woodner Co. .................         $30,000.00

Constructive Dividends

Jonathan Woodner Co.

Payment to Detectives ................          48,257.74

Refund of Filing Fee .................           9,720.00

Fenwood Corporation

Rental Income ........................           2,915.44

Rental Income

Dwellings--Washington, D. C. and

Darby
, 
Pa.

 ...........................             666.07

Loss on Partnership

Pinebrook Woods Co. (14,171.44)"

resulting in the balance of $46,117.60 alleged in the indictment.

The bill of particulars addressed to the first count of indictment C 156-333 itemizes the unreported gross income as follows:

"1. For the calendar year 1951, the defendant had an adjusted gross income of $39,811.30, deductions of $8,320 and exemptions of $600.

2. The adjusted gross income of the defendant for the calendar year 1951 was made up of the following items:

Salary

Jonathan Woodner Co. ...................           $30,000.00

Sale

 of Capital Assets .................             5,000.00

Constructive Dividends

Jonathan Woodner Co.

Payments to Detectives .................            47,065.50

Income Arising From Interest Payments

of Chanute Gardens Corp.

and Chanute Apartments Corp. ...........             7,740.45

Net Loss from Land and Dwellings

Washington, D. C., Upper

Darby
, 
Pa.
 and 

Cincinnati
, 
Ohio

 ........         ($49,994.65)

Adjusted Gross Income ..................         $39,811.30"

resulting in the balance of $31,491.30 alleged in that count of the indictment.

The government now seeks to increase the unreported income by including additional sources and amounts by amendment of its bills of particulars to sums 70% and 60% greater than the $46,117.60 and $31,491.30 respectively.

The proposed amended bills would put the defendant on notice that the government was prepared to prove that the defendant had received constructive dividends during the years in question which had not been mentioned in the prior bills.

The defendant opposes the motion, essentially on the ground that by its bills of particulars and the proposed amended bills, the government seeks in effect to amend the indictments as found by the Grand Jury.

Preliminarily, it is noted that the instant motion is not specifically sanctioned by the rules and the government could have filed the amended bill ad libitum, subject to defendant's motion to strike. F. R. Crim. P. 7(f) provides in pertinent part:

"A bill of particulars may be amended at any time subject to such conditions as justice requires."

However, the motion will be deemed one which properly puts in issue the government's right to go to trial on the amended bill.

The defendant's position is not well taken.

As this court has held: ¹

"The substance of the indictment charges defendant with filing a return, false and fraudulent in that he knowingly understated his taxable income with intent thereby to evade a substantial part of his income tax. The filing of such a false return is the 'attempt' charged by the Grand Jury, not, as defendant claims, unreported sales, unreported commissions, or any other of defendant's financial transactions standing alone."

There is some authority for the proposition that if the indictment itself particularizes the source of unreported income, evidence of other unreported income may be received only to prove an intent to evade but not to prove the alleged failure to report. ²

The instant indictments do not identify the source of unreported income nor do they state how the net income and tax were computed.

Accordingly, the court will not restrict the proof as defendant seeks to have it do.

Defendant's reliance on Stirone v. United States, 361 U. S. 212, is misplaced. In Stirone, the defendant was convicted of a crime different from the crime for which he was indicted. This conviction, of course, could not stand.

Stirone would be analogous here, if the government sought to convict the defendant on proof that he attempted to evade his income taxes for years other than those set forth in the indictment. Such is not the case.

The amendment of the instant bills of particulars does not change the charges made by the Grand Jury; it simply delineates the proof which the government will use to sustain those charges.

The motion is granted. It is so ordered.

¹ U. S. v. Isidore Wolrich, C 138-193, S. D. N. Y., May 25, 1954, Opinion #21138 [54-1 USTC ¶9430].

² See Battjes v. U. S. [49-1 USTC ¶9149], 172 F. 2d 1, 4 (6th Cir. 1949).