are set forth, the count omitting an essential statutory allegation, namely, the coexistence of the manufacture of vinegar and the distillation of spirits, rendered that count defective. The remaining count which charged in statutory language was sustained.
Where the charges of the indictment followed substantially the wording of the statute which embodied all the elements of the crime and such charges informed the defendant of that with which he was accused so as to enable him to prepare his defense and to plead the judgment in bar of a further prosecution for the same offense, it is usually deemed sufficient. See United States v. Debrow.
The Supreme Court added that if the defendant wanted a more definite statement as to certain details, such as the name of the person who administered the oath, it could be obtained by requesting a bill of particulars. Previous decisions of our Court of Appeals are to the same effect.
The recent Court of Appeals' decision in Levin v. United States,
contains a substantially similar charge in a larceny case which was affirmed by the Court of Appeals.
The defendant recognizes that it is proper to charge in alternate counts the offense of larceny and the offense of larceny after trust. Greater specificity by way of a better bill of particulars is indicated under these circumstances and that has been dealt with in a previous section of this opinion. Thus, Counts 3 and 4, and 5 and 6, charging larceny and larceny after trust, in the alternative, are deemed proper.
Count 7 is also sufficient. See Pereira v. United States,
Johnson v. United States.
These cases also involve violations of 18 U.S.C. § 2314, interstate transportation of stolen money.
(b) Defendant's second point is that these counts, 3 through 7, should be dismissed for the reason that they are duplicitous. The defense contends that paragraph two of Count 3, which reads as follows: "A substantial part of the $50,000 referred to in paragraph one of this Count, was not reported on the income tax return of Robert G. Baker and his wife for 1962, which return is referred to in Count 2 of this indictment," charges a separate offense. The Government, on the other hand, states that the purpose of this paragraph is simply to inform the defense as to the identity of the money referred to in this Count and to show the relationship between this Count, 3, and the previous Count numbered 2. At page 647 of the transcript of oral argument on this motion, defense counsel took the position that paragraph two of Count 3 charged a violation of § 7206(1) of the Internal Revenue Code.
The narrow question is: Does this second paragraph charge a violation of § 7206? In defining the offense, the statute clearly specifies that any person who willfully makes and subscribes to any return, etc., shall be punished as provided by law. The Supreme Court made it clear in Potter v. United States,
that the omission of the word "willfully" from a count would be clearly bad in those cases in which willful conduct is an essential element. Defense counsel seeks to circumvent this point by asserting that the key words "knowingly and fraudulently" are contained in Count 2, which is incorporated in the second paragraph of Count 3 by reference. Though it is possible to achieve an incorporation by reference, under certain circumstances, nevertheless, when that is done, it must be abundantly clear that such is intended.
Here, it is not only not clear that an incorporation by reference is intended, it is clear that it is not intended. See United States v. Plotkin, 233 F. Supp. 317 (D.C.E.D. Wis. 1964), and United States v. Buerk, 38 F. Supp. 409 (D.C.E.D. Wis. 1941). United States v. Bachman, 164 F. Supp. 898 (D.C.D.C. 1958), and United States v. Shackelford, 180 F. Supp. 857 (S.D.N.Y. 1957), recognize the general rule respecting duplicity but did not require the dismissal of the count in question for that reason. United States v. Forys, 113 F. Supp. 580 (D.C.D.R.I. 1953), on which defendant also relies, did require dismissal but two offense were clearly charged in the same count. An allegation of scienter is also required by the statute and this also is lacking in paragraph two of these counts.
Since it is clear that those counts are not duplicitous, the motion to dismiss on that ground is denied.
(c) The third point raised by the defense is that the duplicitous nature of the theft counts precludes trial on these counts for the reason that it cannot at this time be ascertained whether the grand jury indicted defendant on the larceny charge in violation of 22 D.C. Code § 2201, or for a violation of 26 U.S.C. § 7206(1), willful making of or subscription to a false income tax return. The Court in point (b) has previously decided that the second paragraph of Counts 3 through 7 does not charge an offense, and for that reason, these counts are not duplicitous. The language in paragraph two is descriptive only and does not constitute a charge.
United States v. Stirone,
on which defendant relies, is not in point for the reason that the reversal in that case was required by a fatal variance between the indictment and the proof offered at the trial and instructions thereon by the trial court. Stirone was indicted for violation of the Hobbs Act, 18 U.S.C. § 1951(a), in that he was charged with interference through extortion with the contract of one Rider to move sand in interstate commerce for the manufacture of ready mixed concrete. Over the objection of the defense, the Government was allowed by the trial court to introduce evidence "of an effect on interstate commerce not only in sand brought into Pennsylvania from other States, but also in interference with steel shipments from the steel plant in Pennsylvania into Michigan and Kentucky." The dissenting appellate judges
were of the opinion that no interference with steel shipments was charged in the indictment, and, accordingly, such evidence should not be received. The Supreme Court agreed with the dissenting judges that it was error to submit the prospective steel shipment question to the jury. For this reason, the case was reversed.
The defense also relies on Russell v. United States.
Some understanding of what was involved in that case is necessary before concluding, as the defense does, that this decision requires dismissal of Counts 3 through 7.
The Government charged Russell with contempt of Congress in failing to answer certain questions when summoned before a congressional committee. The indictment failed to identify the subject under investigation at the time of the interrogation. Congress provided no one should be prosecuted under 2 U.S.C. § 192, except by grand jury indictment. The convictions were reversed for the reason that the indictment failed to state the subject matter under investigation.
There can be criminality under 2 U.S.C. § 192 only if the questions pertained to the subject under investigation,
and it is incumbent on the Government to plead and show that the questions pertained to some matter under investigation.
The legislative history makes this clear.
The indictment in Sinclair77 set forth in specific detail the subject under investigation. The Court, in Russell, stated the question at 764:
"* * * the very core of criminality under 2 U.S.C. § 192 is pertinency to the subject under inquiry of the questions which the defendant refused to answer. What the subject actually was, therefore, is central to every prosecution under the statute. Where guilt depends so crucially upon such a specific identification of fact, our cases have uniformly held that an indictment must do more than simply repeat the language of the criminal statute."