The opinion of the court was delivered by: GOURLEY
This matter comes before the court on defendant's motion for bill of particulars in connection with a two-count indictment charging defendant with wilfully and knowingly attempting to defeat a large part of the income tax due and owing by him and his wife for the calendar years 1949 and 1950, 26 U.S.C.A. § 145(b).
Defendant demands that he be furnished a bill of particulars of the indictment herein as follows:
1. The basis upon which the asserted deficiency in tax is computed, i.e. bank deposits, net worth or other.
2. If the bank deposit method is to be relied on then:
(a) a description of the bank accounts involved sufficient to identify them.
(b) the asserted total deposits in each year, asserted nontaxable deposits, asserted deposits of others than defendant, and any other adjustment made to reach the total income asserted.
(c) the detailed computation which the government expects its evidence will prove which shows the alleged correct net income including all of the figures entering into it.
3. If net worth or other method is used:
(a) the detailed computation which the government expects its evidence will prove which shows the alleged correct net income including all of the figures entering into it.
4. If 'other items' enter into the computation, a description of each of such items including the dollar amount or value thereof which enters into the computation.
5. The claimed source or sources of the alleged unreported income.
6. The amount of claimed unreported income from each alleged source thereof.
At time of argument, the United States Attorney apprised the court and defendant of the theory of proof that the government intended to pursue to establish its case. He further indicated his willingness to review the gravamen of the indictment with defendant's counsel and indicate to him with particularity the elements of the offense. In order to eliminate any possible confusion on defendant's part, the court requested the United States Attorney to submit in written form the basis upon which the government would proceed to sustain the allegations laid down in the indictment.
The government has indicated that it will prosecute this action on the bank deposits-expenditures corroborated by net worth and specific items theory of proof; that defendant is charged with failing to report income approximating $ 20,000 in his tax return for 1949 and $ 30,000 in his return for 1950; that these amounts were arrived at principally through a reconstruction of defendant's income by means of the bank deposits-expenditures method, more particularly, by which is meant that defendant created certain fictitious accounts, as an example, one of said accounts being at the Mellon National Bank and Trust Company, East Liberty Branch, Pittsburgh, Pennsylvania, and other accounts with banks and other places well known to defendant; that defendant realized income not only from business sources but also from wagering activities in connection with which the aforementioned fictitious accounts were created, and that deposits and business arrangements were made with persons who were connected with defendant in furtherance of his activities commonly designated as the wagering business, the names of said persons and records relative thereto being well known to defendant. That the government does not intend to establish that defendant had a bank account in his own name.
A motion for a bill of particulars in a criminal proceeding is addressed to the trial court's discretion. Wong Tai v. United States, 273 U.S. 77, 47 S. Ct. 300, 71 L. Ed. 545; United States v. Caserta, 3 Cir., 199 ...