On Motion for Rehearing.
After indictment found, defendants filed a joint motion under Rule 7(f) for a bill of particulars, under Rule 16 for discovery and under Rule 17(c) for an order to compel the government to produce certain documents for defendants’ inspection in advance of trial. Fed.R. Crim.Pro. 7(f), 16, 17(c). The indictment in this case is summarized in the memorandum of decision dated February 20, 1959, and it is not necessary to repeat that summary here. Suffice it to state that five counts of the seven count indictment alleged five separate charges of use of the mail to defraud, in violation of 18 U.S.C.A. § 1341, and violation of the National Stolen Property Act, 18 U.S. C.A. § 2314, all alleged as a part of a scheme to defraud divers persons and firms engaged in the business of auto sales and financing.
By the February 20th memorandum order, defendants’ motions were allowed to the extent that the government was ordered to furnish a bill of particulars, as delineated in such order, and to produce for defendants’ inspection in advance of trial, the fraudulent checks alleged in the indictment, the signature card and ledger of the bank account alleged in the indictment and all checks, installment contracts and automobile title documents, as alleged in the indictment, upon which the government relies to sustain the charges made.
The government filed a motion for rehearing, in which it contends that that order should be vacated or modified, contending that the bill of particulars ordered under Rule 7(f) is too broad and that the order permits Rule 17(c) to be used erroneously as a discovery rule.
With respect to the order for production of documents, the government does not object to production of the checks alleged in the indictment or the production of the signature card and ledger of the alleged bank account, provided all of the same are in its possession. The February 20th order presupposes a condition *405that these documents be in possession of the government, and, also, that the government will exercise good faith in response thereto and that it will not place such documents beyond its possession at the critical time in which the same are to be produced in advance of trial. Further discussion of the order, so far as it relates to such documents is, therefore unnecessary.
The question remaining under Rule 17 (c) is whether the order to produce for inspection in advance of trial all checks, installment contracts and automobile title documents was properly entered. The government contends that that order would compel it to disclose all of its evidence and would convert Rule 17 (c) into a discovery rule.
The order is subject to a technical objection that the wrong procedure was employed. Rule 17 outlines subpoena procedure for criminal proceedings. Subsection (c) thereof1 authorizes conventional subpoena duces tecum practice for the production of books, papers, documents or objects desired by either party. A proviso is added that the court, on motion may direct that the papers or objects designated in the subpoena be produced prior to trial for inspection by the parties. Defendants caused no subpoena to issue prior to the presentation of their motion for an order to compel production of the requested documents for inspection in advance of trial. The order directed production of requested papers to the extent above delineated.
Applying the rationale of Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 390, 91 L.Ed. 451, the order will not be disturbed on the procedural ground.2 The order is directed against a party to the cause who appeared and objected to defendants’ motion for production and who now renews and expands its objections by the pending motion for rehearing. Any objection which might have been raised on a motion to quash or modify a subpoena could be raised under the procedure here employed. Absent some showing that the procedure employed operates to the detriment of the govern*406ment’s position, by comparison with procedure upon issuance and service of a subpoena under Rule 17(c), the order will not be vacated merely because the procedural niceties were not, initially, strictly observed.
After careful reconsideration, of the propriety of the scope of the order for production of the checks, installment contracts and automobile title documents, I am yet convinced that the order is sound. While Rule 17 does not purport to be a discovery rule, the proviso for production of documents for inspection in advance of trial does establish a procedure which is, in effect, a right of discovery. United States v. Gross, D.C.S.D.N.Y., 24 F.R.D. 138, 140; United States v. Cohen, D.C.S.D.N.Y., 15 F.R.D. 269, 271; to same effect, United States v. Shindler, D.C.S.D.N.Y., 24 F.R.D. 142. As one member of the Advisory Committee on the Federal Rules of Criminal Procedure stated, “ * * * ‘there is a provision in [Rule 17(c)] that the court may, in the proper case, direct that [subpoenaed materials] be brought into court in advance of the time that they are offered in evidence, so that they may then be inspected in advance, for the purpose of course of enabling the party to see whether he can use it or whether he wants to use it.’ ” Statement of Mr. Aaron Youngquist, Proceedings of the Institute on Federal Rules of Criminal Procedure, New York University School of Law, quoted and approved Bowman Dairy Co. v. United States, 341 U.S. 214, 220, note 5, 71 S.Ct. 675, 678, 95 L.Ed. 879.
The Bowman opinion establishes the definitive relationship between Rules 16 and 17(c). Although that opinion is not without seeming contradiction within itself, the Court’s language can be construed only as a recognition that Rule 17 (c) has a limited discovery function in a proper case, to-wit:
“ * * * There may be documents and other materials in the possession of the Government not subject to Rule 16 [discovery]. No good reason appears to us why they may not be reached by subpoena under Rule 17(c) as long as they are eviden-tiary. That is not to say that the materials thus subpoenaed must actually be used in evidence. It is only required that a good-faith effort be made to obtain evidence. The court may control the use of Rule 17(c) to that end by its power to rule on motions to quash or modify.
“It was not intended by Rule 16 to give a limited right of discovery, and then by Rule 17 to give a right of discovery in the broadest terms. Rule 17 pi’ovided for the usual subpoena ad testificandum and duces te-cum, which may be issued by the clerk, with the provision that the court may direct the materials designated in the subpoena duces tecum to be produced at a specified time and place for inspection by the defendant. Rule 17(c) was not intended to provide an additional means of discovery. Its chief innovation was to expedite the trial by providing a time and place before trial for the inspection of the subpoenaed materials. United States v. Maryland & Virginia Milk Producers Ass’n, [D. C.] 9 F.R.D. 509. However, the plain words of the Rule are not to be ignored. They must be given their ordinary meaning to carry out the purpose of establishing a more liberal policy for the production, inspection and use of materials at the trial. There was no intention to , exclude from the reach of process of the defendant any material that had been used before the grand jury or could be used at the trial. In short, any document or other materials, admissible as evidence, obtained by the Government by solicitation or voluntarily from third persons is subject to subpoena. * * * ” Bowman Dairy Co. v. United States, 341 U.S. *407at pages 219-221, 71 S.Ct. at page 678.
Following the rationale of the Bowman opinion, it would seem to follow that documents in possession of the government may be reached by subpoena duces tecum under Eule 17(c) for examination in advance of trial if the documents sought are evidentiary, if there is a reasonable likelihood that a defendant’s efforts to prepare a defense to the charge might be .hampered if such document were not produced and if the court be satisfied that a subpoena is grounded upon a good faith effort to obtain evidence.
From the face of the indictment, in this case, it appears that the documents here demanded are properly producible for inspection in advance of trial under the provisions of that Eule. The indictment alleges a scheme to defraud buyers, sellers, auctions, and finance companies dealing in the sale and financing of automobiles by the use of fictitious bank accounts and fraudulent installment contracts, automobile title documents and checks. It is inconceivable that any of such documents in the possession of the government are not evidentiary. And it seems apparent that defendants cannot adequately prepare to meet the charges laid in the indictment without an opportunity to know the nature and content of, and to evaluate, such documents. I am convinced that defendants’ motion must be characterized as a good- faith effort to obtain evidence. Whether or not such documents, after production, would be used by defendants as evidence, must depend upon their inspection. Bowman Dairy Co. v. United States, supra, 341 U.S. at pages 219-220, 71 S.Ct. at pages 678-679; Cf., United States v. Gross, supra.
I am not impressed with the government’s contention that the production order compels it to disclose its whole case. If such be the effect of the order that-disclosure is consistent with the government’s unique position in a criminal trial, namely, as the advocate for the discovery of the truth, not as the advocate for conviction irrespective of truth. I do not hold that the machinery of Eule 17 (c) is available in advance of trial, in every criminal case, but only that the case at bar impresses the court as a proper one for the invocation of that rule.
Insofar as it is addressed to the provisions of the order requiring the production of documents in possession of the government, the government’s motion for rehearing is denied.
The government’s motion with respect to the bill of particulars ordered in the February 20th order may be briefly disposed of. The granting or denying of a bill of particulars is discretionary with the trial court. Wong Tai v. United States, 273 U.S. 77, 47 S.Ct. 300, 71 L.Ed. 545; United States v. Ansani, 7 Cir., 240 F.2d 216, certiorari denied sub nom. Milner v. United States, 353 U.S. 936, 77 S.Ct. 813, 1 L.Ed.2d 759; United States v. Doyle, 7 Cir., 234 F.2d 788, certiorari denied 352 U.S. 893, 77 S.Ct. 132, 1 L.Ed.2d 87.
The scope of a bill of particulars, when granted, is largely left to the trial court’s discretion as to what particular facts or information are necessary to enable a defendant to prepare his defense to the charge of an indictment and to avoid surprise in the trial of the cause. Cf., United States v. Ansani, supra; United States v. Glasser, 7 Cir., 116 F.2d 690, modified on other grounds, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680; Hughes v. United States, 6 Cir., 114 F.2d 285. When a bill of particulars is warranted, its scope will vary from case to case depending upon the complexity of the charges laid in the indictment. In a proper case, a bill of particulars may require the disclosure of the identity of witnesses or persons who have knowledge of the transaction charged.
I think the case at bar is one in which considerable breadth of a bill of particulars is justified if defendants are to be able to prepare a defense, to know the nature of the charge against them and to *408avoid surprise in the trial of the case. The scope of the order here, with the single exception hereinafter noted, is justified by the nature of the charges made in this indictment.
The motion for rehearing and for modification of the order for bill of particulars will, therefore, be denied with the exception that subparagraph h of paragraph 2 thereof, which requires production of the prior criminal record of Amp Poore, was improvidently entered and will be expunged.
The order is hereby modified by expunging paragraph 2h thereof. The government’s motion for rehearing and reconsideration of the order is in all other respects denied.
. “(c) For production of documentary evidence and of objects.
“A subpoena may also command tbe person to whom it is directed to produce tbe books, papers, documents or other objects designated therein. Tbe court on motion made promptly may quash or modify the subpoena if compliance would be unreasonable or oppressive. Tbe court may direct that books, papers, documents or objects designated in the subpoena be produced before tbe court at a time prior to tbe trial or prior to tbe time when they are to be offered in evidence and may upon their production permit tbe books, papers, documents or objects or portions thereof to be inspected by the parties and their attorneys.”
. The Hickman case involved the Federal Rules of Civil Procedure, but its rationale is equally applicable here. In that case, the plaintiff addressed interrogatories and under Rule 33 to the defendants demanding the production of written statements and a summary of oral statements made by known witnesses to the defendants’ attorney. The trial court entered an order “apparently under Rule 34” commanding the defendants and their attorney to produce the demanded material.
The Supreme Court held that neither Rule 33 nor Rule 34 procedures could be employed in the circumstances of that case, but that the issue was as squarely presented by the procedure employed as it would have been had plaintiff demanded the materials upon deposition, Rule 26, or by subpoena, Rule 45. The court said that, “The fact that the petitioner may have used the wrong method does not destroy' the main ’ thrust of his attempt”, and, consistently with the liberal construction of the rules, he should not be compelled to follow the empty gesture of a proper procedure “only to reestablish precisely the same basic problem now confronting us.” Hickman v. Taylor, 329 U.S. 495, 504-505, 67 S.Ct. 385, 391, 91 L.Ed. 451.
As in Hickman, the court is here confronted with a situation in which the substance of the government’s contention is squarely presented irrespective of the use of the right or wrong method to achieve that goal.