Delaney v. United States

• Decision Date: 10 October 1952
• Docket Number: No. 4652.,4652.
• Citation: 199 F.2d 107
• Court: U.S. Court of Appeals — First Circuit
• Parties: DELANEY v. UNITED STATES.

199 F.2d 107 (1952)

DELANEY v. UNITED STATES.

No. 4652.

United States Court of Appeals First Circuit.

October 10, 1952.

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C. Keefe Hurley, Boston, Mass. (Carl H. Amon, Jr., and Theodore L. Cross, both of Boston, Mass., on brief), for appellant.

Robert G. Maysack, Attorney, Department of Justice, Washington, D. C. (George F. Garrity, U. S. Atty., Boston, Mass., John H. Mitchell, Sp. Asst. to Atty. Gen., Washington, D. C., William J. Koen, Asst. U. S. Atty., Boston, Mass., and James T. Kells, Attorney, Department of Justice, Washington, D. C., on brief), for appellee.

Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.

MAGRUDER, Chief Judge.

This case was heard on consolidated appeals from a judgment of conviction on an indictment charging offenses under 18 U.S. C. § 202, and from a judgment of conviction on another indictment, charging offenses under 26 U.S.C. § 4047(e)(8). The two indictments were tried together in the district court, and verdicts of guilty were rendered by the jury under each indictment.

Denis W. Delaney, appellant herein, prior to his indictment had held the office of Collector of Internal Revenue for the District of Massachusetts. He was suspended by order of the President on June 27, 1951, pending an investigation of the affairs of his office. Shortly thereafter, on July 16, 1951, the President removed him from office. On September 14, 1951, the grand jury returned the two indictments above mentioned.

The first indictment, in several counts, charged Delaney with receiving payments with the intent to have his decision and action as Collector of Internal Revenue influenced on matters which were then pending before him, in his official capacity, in regard to the collection of income taxes, penalties and interest from certain taxpayers, all in violation of 18 U.S.C. § 202. The second indictment, in several counts, charged Delaney with violations of 26 U.S. C. § 4047(e) (8), by making false certificates of discharge of tax liens, wherein he stated and certified that the taxes enumerated therein of certain taxpayers had been satisfied in full, whereas, as Delaney then well knew, the said taxes had not been satisfied in full.

On September 17, 1951, appellant was arraigned before the district court and pleaded not guilty.

As might be expected, Delaney's suspension, removal, indictment, and arraignment, occasioned widespread publicity in the public press, particularly in the Boston area.

It happened that there was functioning at this time a Subcommittee on Administration of the Internal Revenue Laws — the so-called King Committee — set up by the Committee on Ways and Means of the House of Representatives pursuant to authority of H.Res. 78, passed February 2, 1951 (97 Cong.Rec. 883).

On October 1, 1951, counsel for Delaney received a telephone call from one of the counsel for the King Committee, to the effect that the committee was intending to proceed promptly with its investigation of the Office of Collector of Internal Revenue for the District of Massachusetts. On behalf of Delaney, his counsel sent to the committee a letter of protest, asking that the committee defer further proceedings until after final disposition of the indictments then pending against Delaney, on the ground that additional investigation and publicity by the committee at that time, relating to the affairs of Delaney's office, could "serve no other purpose than to further prejudice Mr. Delaney's rights to a fair trial of the accusations against him."

It appears that the Department of Justice was also disturbed by the proposed activity of the congressional committee. A Special Assistant to the Attorney General, at a hearing before the court below on a motion for a continuance, informed the court as follows:

"When the question first came up and it was brought to our attention that these witnesses were to be subpoenaed before the King Committee, I appeared before the King Committee and very urgently argued with the Committee that these matters not be publicly disclosed, for two reasons, first that of possible prejudice which might result to the defendant, and secondly that we also felt that it would injure the Government\'s case in disclosing the Government\'s evidence at that time.

"The Committee was very polite and they indicated that they felt that the public weal, so to speak, would have to override any objections that I made.

"On a subsequent occasion, Mr. McInerney, my superior, and head of the Criminal Division, and I again appeared before the Committee and we again very earnestly argued with the Committee that these matters not be made public, and asked the Committee if they felt it necessary to their investigation to have hearings, that they be held in a closed session and no disclosures be made until after this case was disposed of. Again we were very courteously treated and were advised at that hearing that consideration would be given to the matter. We were subsequently informed that this was a matter which the Committee felt the public was entitled to know and that any representations we might have made were overridden by the public interest."

There was some delay in the opening of hearings specifically directed to the affairs of the Boston office, but the King Committee continued taking evidence with respect to corruption in collectors' offices generally, and publicly heard testimony linking appellant and the Boston office to a nationwide "shakedown" plot. This testimony received prominent play in the Boston press.

On October 16, 1951, in Washington, D. C., the King Committee commenced public hearings focused upon alleged derelictions of appellant Delaney. The Boston newspapers assigned feature writers to report the hearings. Motion pictures and sound recordings were permitted to be taken during the course of the hearings. These hearings continued through October 22, 1951.

Among the witnesses who were summoned and appeared before the Committee were many who had testified before the grand jury that had returned the indictments against appellant, and who later testified at his trial. In this respect the committee hearing afforded the public a preview of the prosecution's case against Delaney without, however, the safeguards that would attend a criminal trial. Delaney was not subpoenaed, invited or requested to attend these hearings, and the witnesses who testified were not subjected to cross-examination by counsel for the accused.

Even more damaging, perhaps, was the fact that the testimony thus publicly heard by the committee ranged far beyond matters relevant to the pending indictments. Among other things, the committee delved into an alleged bankruptcy by Delaney, and into a charge of larceny and embezzlement against him, both occurring prior to his appointment as collector; it heard evidence of alleged irregularities by appellant with respect to his personal income tax returns; evidence was received of alleged official activities of appellant smacking of fraud, but as to which he had not been indicted; and witnesses were heard as to alleged "peddling" by appellant of his influence in Washington to secure favorable action by governmental agencies other than the Bureau of Internal Revenue on behalf of certain Massachusetts business interests.

Toward the close of the hearing the chairman of the King Committee commented publicly — and his remarks were duly reported in the press — that "our collectors' offices have been able to survive the shocking situations produced by Mr. Finnegan and Mr. Delaney only because there exists in each office this group of loyal, honest employees who carry the office along"; that it was "a great tribute to the majority of the employees in the collectors' offices that these offices still function effectively despite the severe blow to their morale which must necessarily result from the deplorable activities of Mr. Finnegan and Mr. Delaney"; that unfortunately "the testimony before this committee in the Delaney and Finnegan and Olson cases indicates in some offices of the Internal Revenue Service the top officials have very seriously betrayed their trust, and thereby betrayed the employees in their offices. It is the committee's task to ascertain as fully as possible where and why this betrayal has occurred and what can be done to correct the system so that those career employees who are loyal and honest can have the leadership that they and the country are entitled to."

Since the committee evidently felt that there were overriding considerations of public interest which demanded that its open hearings proceed, it must be inferred that the committee intended, as indeed it must have foreseen, that its proceedings would receive the most widespread publicity. The record sets forth this resulting publicity in overwhelming detail.

The newspaper publicity was characterized by flamboyant, front-page headlines in large, heavy type, covering colorful feature stories emphasizing the more striking aspects of the testimony. This was supplemented by radio and television exploitation of the same material. Naturally, due to local interest, the publicity was intensified in the Boston area, but it was also carried by the big press associations far and wide throughout the nation, for the generalized charges of corruption in the Internal Revenue Bureau had elicited public interest and concern throughout the nation. One of the exhibits in the record is an issue of "Life" for November 19, 1951 (a weekly with an advertised circulation of over 5,000,000), containing an article entitled "The Hands in the Taxpayers' Pockets", with the subtitle: "The Truman Administration's Worst Scandal is in the Making as Corruption is Found Throughout Internal Revenue Bureau". The article displayed pictures of ten Internal Revenue employees, including Delaney, who allegedly had committed wrongs in connection with their respective offices. After a general...