in which to file his tax returns. The court held that the alteration was substantial and material in a case where willfulness is the central issue.
The court based its decision on the fact that the amendment violated the most important function of an indictment. That function is the protection of a citizen from unfounded charges by requiring probable cause to be proven to an independent body, a grand jury. When they are uninformed of a material fact such as the extension of filing date for income tax returns it is impossible for them to properly pass on an indictment. See also United States v. Radowitz, 507 F.2d 109 (3d Cir. 1974).
Unlike Goldstein, however, I am not faced with an amendment to an indictment but rather to a criminal information. In this case the protection of a grand jury was not available to Ettorre. The information, as to Counts I and II, was sufficient to inform defendant of the charges against him and sufficient to protect him from double jeopardy. Furthermore, it afforded him ample opportunity for discovery and utilization of the filing extensions at trial. Therefore, under F.R.Cr.P. 7(e), the amendment of the information was proper.
Defendant's allegation that my denial of certain portions of his motion for a bill of particulars was error is without merit for two reasons. First, he shows no prejudice by my ruling. Second, the Government is not required to reveal its trial theory to the defendant at the pre-trial stage.
Defendant's remaining objections are directed to a number of evidentiary rulings which I made in the course of his trial. First, defendant asserts that I erred in admitting the testimony of special agent Howard L. Merkel, of the Internal Revenue Service, that defendant had told him that he was responsible for handling Panett's tax returns. Such statement, rather than being a conclusion of law, as defendant contends, actually was a statement of fact, and was plainly admissible as a voluntary out-of-court statement to a Government agent. Second, defendant contends that refusal to permit his counsel to cross-examine Agent Merkel concerning selective prosecution was error. The short answer to this objection is that selective prosecution is not per se violative of the Constitution. See Oyler v. Boles, 368 U.S. 448, 456, 82 S. Ct. 501, 506, 7 L. Ed. 2d 446 (1962). Next, defendant asserts that I erred in allowing Agent Merkel to testify concerning defendant's filing of the corporation's 941 forms. This evidence was highly relevant to the issue of defendant's intent, and in light of defense counsel's thorough cross-examination on this point, its admission did not constitute an abuse of the trial court's discretion. Fourth, defendant argues that I erroneously admitted payroll records of certain Panett employees. These documents were identified by Government witnesses as having been prepared by them during business hours and for business purposes. Defendant's unfamiliarity with them was irrelevant with respect to their admissibility. Finally, defendant contends that I erred in refusing to allow impeachment of the testimony of one of the Government's experts, Dr. Frank Hoffman, on the basis of statements attributed to a Philadelphia assistant district attorney in a 1971 newspaper article. This attempted impeachment constituted collateral double hearsay, and was inadmissible under sound rules of evidence.
Accordingly, I conclude that defendant's motions must be denied.
AND NOW, this 10th day of January, 1975, it is hereby Ordered that:
1. Defendant's motion and supplemental motion to find facts separately are Granted, and such findings are contained in the Opinion accompanying this Order;
2. Defendant's motion and supplemental motion for acquittal are Denied;
3. Defendant's motion in arrest of judgment is Denied; and
4. Defendant's motion for a new trial is Denied.
BY THE COURT:
J. WILLIAM DITTER JR. / J.