United States v. Hall

SMITH, District Judge.

For the reasons indicated in memoranda filed in 52 F.Supp. 796 and No. 7089,¹ the motion that the prosecution elect which offense to try is denied.

Motion for Bill of Particulars.

The indictment in this case charges the two defendants, officers of a corporation, with wilful attempts to defeat and evade income and excess profits taxes upon the net income of the corporation in four years, and with conspiracy so to wilfully attempt. The motion for bill of particulars is directed to five items in each of the first four counts, two of which appear in the allegations concerning the true gross income from the corporation, namely, “cost of sales” and “other income cash withheld and diverted”. The other three items involve deductions allowed by law in addition to those taken in computing gross income, namely, “salaries — officers”, “rent”, and “other deductions”. The defendants are entitled to a more particular statement of the allowable deductions than appears in the lumping of a large amount in each count under the general heading of other deductions. With the exception of the cost of sales, the other items are sufficiently specific to put the defendants on notice of the charges they must meet on trial. As to the cost of sales, I am in some doubt as to whether any further specification is necessary. Defendants are informed of the government’s claim as to the total cost of sales in each year, not as to the nature of the items allowable in arriving at cost. The doubt will be resolved in favor of the defendants and the government required to state the items which go to make up the alleged true cost of sales in each count.

The motion for bill of particulars is granted as to the item, “cost of sales”, and as to the item, “other deductions”, in each of the first four counts. Otherwise, the motion is denied.

1 No opinion for publication. See 52 F.Supp. 796.