The opinion of the court was delivered by: SIMMONS
Defendant, a resident of Butler, Pennsylvania, was indicted by a Grand Jury on a 12 Count indictment. Defendant is charged with knowingly attempting to evade and defeat a large part of the income tax due and owing by him in 1974 by mailing a fraudulent income tax return. In 1974, Defendant stated his taxable income was $ 2,468.00 and the amount of tax due and owing was $ 365.00. The Government alleges Defendant's taxable income was $ 49,511.00 and the amount of taxes owed was $ 16,815.00. Defendant is charged with filing a fraudulent income tax return for 1975. The Government alleges Defendant stated his taxable income was minus $ 1,607.00 with no taxes due. The Government alleges Defendant's taxable income was $ 13,232.41 with the amount of tax owed being $ 2,350.20. Defendant is alleged to have rendered assistance to various persons applying for home loans with the Farmers Home Administration in Butler, Pennsylvania, in violation of federal statute. The Government alleges Defendant knowingly and wilfully made material false writings in the form of Request for Verification of Employment, federal form, FHA 410-5, which forms were filed with the Farmers Home Administration for the purpose of obtaining Farmers Home Loans. Defendant is alleged to have filed these forms for Dennis George Wise, James Stivers, William Holt, Stephen R. Sloboda, Richard C. Kline, Kenneth E. Kirkwood, Richard O. Byers, Robert A. Wilson and John T. Hannigan.
The facts stipulated by the parties in the above-captioned case are as follows:
A subpoena was issued to the Defendant requiring him to appear before a Federal Grand Jury of the United States District Court for the Western District of Pennsylvania on November 9, 1976. At no time did the Government provide the Defendant with an Affidavit setting forth what information they sought from the Defendant or that said information was sought from Defendant was: (1) relevant to an investigation; (2) properly within the Grand Jury's jurisdiction; and (3) not sought primarily for another purpose. At no time was the Defendant advised by the Government that he was entitled to such an Affidavit.
On November 9, 1976, the Defendant did appear before the Federal Grand Jury of the United States District Court for the Western District of Pennsylvania, and did testify, a copy of the transcript of his testimony was attached to the Stipulation of the parties and marked as Exhibit "A". At the time the Defendant appeared before the Federal Grand Jury on November 9, 1976, he was not represented by counsel.
Prior to the Defendant's appearance before the Federal Grand Jury on November 9, 1976, the Defendant in no way contested the issuance of the subpoena or the validity of the investigation, and further the Government instituted no proceedings to enforce the Grand Jury subpoena.
After Defendant's appearance before the Grand Jury, the said Defendant was indicted on 12 Counts, and the 12th Count was a charge of perjured testimony before the Grand Jury in violation of Title 18 U.S.C. § 1621 as here to before noted. The Attorney for the Defendant appeared and moved to suppress the Defendant's alleged perjurious testimony on the ground that the United States Attorney did not present to the Defendant prior to his testimony, an Affidavit setting forth that all information sought from the Defendant-witness was relevant to the investigation, that the information was properly within the Grand Jury jurisdiction, and that the information was not sought primarily for another purpose. SEE the holding of the Third Circuit Court of Appeals in, In re Grand Jury Proceedings, 486 F.2d 85 (3rd Cir. 1973) (Schofield I ) and In re Grand Jury Proceedings, 507 F.2d 963 (3rd Cir. 1975) (SCHOFIELD II ).
Subsequently, the Defendant's Attorney requested discovery of 9 items. The Government agreed to supply all of the items requested, except the 5th request which is as follows:
"Copies of statements known or possessed by the Government of persons with information pertaining to this Defendant, or the facts alleged in the indictment whom the Government does not intend to call as witnesses and whose statement would not be produceable under the Jencks Act, as well as the names of all persons interviewed by the Government agents in this investigation not intended to be called as witnesses."
Finally, the Defendant's Attorney moved the Government to furnish a Bill of Particulars requesting the Government to disclose the specific items of income making up the Defendant's actual taxable income and their sources, and the deductions and costs allowed or disallowed against such income. The Government refused to furnish the requested information.
". . . (2) Despite the fact that the burden is generally on the witness to show abuse of the grand jury process, Schofield I requires the government to present affidavits In every case irrespective of whether the witness has challenged the propriety of the subpoena. This broad rule is designed to prevent abuse of the grand jury process by requiring a minimum disclosure of the grand jury's purpose in every case . . ." . (underlining supplied)
Further, the United States Court of Appeals for the Third Circuit goes on to say at 966 of ...