United States v. Worcester

• Citation: 190 F. Supp. 548
• Decision Date: 29 December 1960
• Docket Number: Crim. No. 57-62-W,57-63-W.
• Parties: UNITED STATES of America v. Thomas H. WORCESTER.
• Court: U.S. District Court — District of Massachusetts

190 F. Supp. 548

UNITED STATES of America v. Thomas H. WORCESTER.

Crim. Nos. 57-62-W, 57-63-W.

United States District Court D. Massachusetts.

December 29, 1960.

As Amended January 3, 1961.

Opinions January 5 and 9, 1961.

Elliot Richardson, U. S. Atty., James C. Heigham, Asst. U. S. Atty., Boston, Mass., for plaintiff.

Calvin Bartlett, Brooks Beck, John L. Saltonstall, Jr., Hill, Barlow, Goodale & Adams, Boston, Mass., for Worcester.

Paul T. Smith, Boston, Mass., for Callahan.

Samuel H. Cohen, Boston, Mass., for Wm. A. Beale.

L. Johnson Callas for Richard J. Schoenfeld, Jr.

Thomas Dwyer, Boston, Mass., for Percy G. Cliff.

Frederick Roche, Boston, Mass., for May P. Norton and Lawrence Norton.

Daniel J. Connors, Boston, Mass., for Philip Murphy.

Jerome E. Rosen, Boston, Mass., for Frank K. Perkins.

WYZANSKI, District Judge.

The Court. (orally) I am grateful to counsel for refreshing my recollection on the facts and informing me of the law which they regard as controlling in these proceedings. I am not going to deal by any means with every point which was made by counsel, but there are some things which were said which I do believe deserve a preliminary set of observations.

First, I am glad that Mr. Smith recognizes that it is my view that any lawyer worthy of his salt will on behalf of his client make whatever arguments seem to him to be professionally warranted, regardless of any risk of offense, if any risk there be, to the Judge who is sitting; and I hope that at no time will any lawyer have any doubt that I welcome as bold an assault as the facts and the law warrant.

On a number of different occasions during his first and his last argument, Mr. Smith referred to this as though it were perhaps a Grand Jury proceeding or one that ought to be a Grand Jury proceeding. It seems we have forgotten that this is a proceeding consequent upon an alleged failure of Worcester to perform his duty before a Grand Jury.

There has been no want of a Grand Jury proceeding. On the contrary, this is Step 2 of which Step 1 was a Grand Jury proceeding, which led to a complaint filed by the United States Attorney.

I am not going to make any reference to the numerous characterizations which, in a parade of horribles, Mr. Smith marched forth, at the beginning of the argument, as descriptive, as he said, in my words of what this proceeding involves. Some of the quotations were accurate; some were in a context, or with a slant for which I bespeak consideration of the original transcript.

Moreover, there was in Mr. Smith's argument a reiterated playing upon the symbolism, as though it were from Herman Melville, of the Whale and the Red Herring. With due regard for the dramatic device, I cannot refrain from referring again to the record, itself. The record, itself, will, I am sure, show that in the course of an examination of a witness by a counsel, another counsel objected on the ground that the first counsel was engaged in a fishing expedition. It was in relation to that objection that I said that the first counsel seemed to be after a whale and not after a red herring. It was not I that was looking for Leviathan.

It would be idle for me to pretend that only this afternoon have I addressed myself to the very serious problems which underlie these motions. On at least five occasions I have had the deepest self-scrutiny with regard to whether these proceedings should be cast in this form.

First, when I wrote the letter to Mr. Bartlett, from which he has quoted, I was aware of some, though not all, of the serious legal and moral problems which were involved, and before I wrote that letter I considered with great care, and with no little research, the problems involved.

Second, when I received from Mr. Richardson, in his capacity as United States Attorney, the complaint which initiated these revocation proceedings, I once again had the opportunity to, and exercised the opportunity to, consider the legal and moral problems. My frame of reference was at each stage of the consideration widened by new facts.

Third, as the hearings proceeded, and I issued the subpoena now under challenge, I was aware that it once more was incumbent upon me to consider whether, as a matter of law and as a matter of sound moral policy, it was desirable to go ahead, and on this third occasion I again studied what I regarded as the precedents and the wider problems.

The fourth occasion came when, 10 days ago, Mr. Smith filed the motions which seemed to me, despite the fact the Court of Appeals did not seem to think so, to be a brief setting forth his position, no less than a pleading setting forth his position. Thus, I had the advantage of an overt challenge with reference to specific points and, as Mr. Smith, himself, said, such a challenge was due in a proper way. It always helps a Judge to be effectively challenged. The ancient Greek Heraclitus said, "Strife is the source of all things." Lawyers and Judges know that on the anvil of debate much is hammered out that otherwise would have remained unshapen metal.

A fifth occasion came when Mr. Smith, on behalf of Mr. Callahan, made me, quite properly, as far as the procedure goes, a respondent in connection with a Petition for a Writ of Mandamus and for a Writ of Prohibition. Thus, once again, being likely, myself, to be a person from whom a formal Answer might be required by an Appellate Court, I studied the authorities and what seemed to me to be the controlling principles.

It would be naive for me to claim that I had not reduced my ideas to writing. And though I think I might be able, without too much effort, to reproduce the whole of the 45 pages orally, I prefer to, and now do file a Memorandum of my reasons for denying, as I now do deny, all four motions handing to the Clerk the document herein called "Opinion of Dec. 29, 1960," set forth below.

Mr. Smith. If your Honor please, would your Honor now accept a Motion to Stay the Proceedings in so far as the witness Callahan is concerned the proceeding before the Court of Appeals? Certainly, may I suggest to the Court, a day is not going to be that important to this proceeding that has been going on here.

The Court. The only reason I am not going to do that, Mr. Smith, is I think you will have to see from my Memorandum that there is only one effective way?€”it is a terribly perilous one?€”to challenge this Court.

Mr. Smith. I understand what your Honor is going to say: take the chance of going to jail for contempt.

The Court. I think it is the only way. Therefore, I won't grant a stay because I don't think there is any other review except at peril.

Opinion of Dec. 29, 1960, as amended Jan. 3, 1961.

On December 19, 1960 Paul T. Smith, Esq., on behalf of William F. Callahan, filed four motions: (1) to quash a subpoena ad testificandum addressed to William F. Callahan, (2) to "cease, confine, stay" the present proceedings, (3) to strike evidence, and (4) to strike or limit evidence.

The following is an abbreviated account of the background to these motions.

1. (a) Thomas H. Worcester and various corporations, including Thomas Worcester Inc., of which he was president, have for many years been engaged in the engineering business. They have had numerous contracts with private and public agencies, including the Commonwealth of Massachusetts, and its agencies the Department of Public Works and the Massachusetts Turnpike Authority.

1. (b) At various times William F. Callahan has been the chairman of the DPW and the MTA, and of the latter he is now chairman.

1. (c) Following an intensive investigation by the Federal Internal Revenue Service, the Grand Jury of this District in 1957 in two indictments, hereafter called one case, indicted for wilful evasion of the federal tax laws Worcester individually and Thomas Worcester, Inc.

1. (d) In accordance with the system of assignment by lot prevailing in this District, the case was assigned forthwith to Judge William T. McCarthy. He held some pre-trial sessions, but he had not tried the case when in June 1960 he retired. In late June or early July the case was re-assigned to me, and in July I set the case down for trial in August 1960 before a court and jury.

1. (e) In the course of a thirteen day trial before me, testimony indicated that, with the active participation of Worcester, personally, the corporation paid about $275,000 to one Francis Norton as a purported salesman to secure contracts for the corporation with various public bodies. The evidence was strongly suggestive of the possibility that Norton had passed on some of the money as bribes to public officials. Also the evidence indicated that with Worcester's knowledge the corporation, nonetheless, in its federal corporate income taxes had taken the payments to Norton as deductions from gross income, on the claim that they were "ordinary and necessary business expenses." Internal Rev.Code ? 23(a) (1) (A); 53 Stat. 12, as amended, 56 Stat. 819, 26 U.S.C.A. ? 23(a) (1) (A). Tank Truck Rentals v. C.I.R., 356 U.S. 30, 33, 78 S.Ct. 507, 2 L.Ed.2d 562; Textile Mills Securities Corp. v. C.I.R., 314 U.S. 326, 62 S.Ct. 272, 86 L.Ed. 249; Rugel v. C.I.R., 8 Cir., 127 F.2d 393.

1. (f) This Court in its charge instructed the jury that if Worcester knowingly, and being aware of the character of the payments, participated in taking such deductions, he was guilty of a wilful violation of what was then ? 145(b) of the Internal Revenue Code of 1939. 26 U.S.C. ? 145(b).

1. (g) The jury on September 5, 1960 convicted Worcester on the two indictments.

1. (h) This Court, being persuaded that the testimony indicated that Worcester had derived no large financial benefit from his wrongdoing wrote, and filed in the court records, the following letter, dated September 9, 1960, to his counsel, Calvin P. Bartlett, Esq.:

"Dear Mr. Bartlett:

"I am writing this letter to you, as counsel for Thomas H. Worcester. I shall send a copy to the United States

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