Hooley v. United States

Decision Date07 January 1954
Docket NumberNo. 4743.,4743.
Citation209 F.2d 219
PartiesHOOLEY v. UNITED STATES.
CourtU.S. Court of Appeals — First Circuit

Joseph S. Vahey, Boston, Mass., for appellant.

Charles F. Choate, Asst. U. S. Atty., Boston, Mass., (Anthony Julian, U. S. Atty., and Edward D. Hassan, Asst. U. S. Atty., Boston, Mass. with him on brief), for appellee.

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

MAGRUDER, Chief Judge.

This is one of the companion cases, decided to-day, arising out of a federal grand jury investigation of the Brink's robbery in Boston on January 17, 1950.1 Appellant has taken an appeal from a judgment imposing a prison sentence of nine months upon conviction of criminal contempt.

We refer to the discussion in our main opinion, in Carlson v. United States, Nos. 4732-4734, 209 F.2d 209 much of which is relevant here and will not be repeated in this opinion.

Paul J. Hooley is a brother-in-law of "Specs" O'Keefe, and the husband of Mary A. Hooley, appellant in Nos. 4737-4739, 209 F.2d 234.

On April 27, 1950, a special agent of the Federal Bureau of Investigation made application for a warrant authorizing a search of the Boston home of Mr. and Mrs. Hooley, the applicant alleging that he had reason to believe that approximately $60,000 was there being unlawfully held and possessed by Paul and Mary Hooley in violation of various sections of Title 18, U.S.Code. In an accompanying affidavit the special agent deposed that the said sum of $60,000 was believed to be part of the proceeds of the Brink's robbery, that he, the affiant, had reason to believe that the said money had been removed from the premises, counted, and afterwards returned thereto; and that the said money was then and there being concealed either in an overstuffed baby's stationary chair and footstool or in a leather zipper overnight bag. On the same day the search warrant was issued by the United States Commissioner as requested. The return to the warrant recited that the search was executed on the late afternoon of the day it was issued "and nothing was found to be seized."

Subsequently, Paul J. Hooley was duly summoned to appear as a witness before the grand jury investigating the Brink's robbery. He appeared early in December, 1952, and was examined at length in the presence of the grand jury by an Assistant United States Attorney. To a great many of the questions he answered directly and responsively, but there were a suspiciously large number of questions to which his answers were of the "I don't remember" variety; and reading the cold print of the transcript of his testimony one might warrantably infer that at least in some of these instances he must have known and remembered about the matters inquired about, so that his avoidance of a direct and responsive answer under the pretext advanced was a purposeful evasion. In addition to that, Hooley declined to answer several questions under his privilege against self-incrimination. These were (1) whether he had purchased a television set which was found in his home on the night of the FBI raid above mentioned, and what had happened to this set subsequent to the raid; (2) what he had told the FBI about the television set; (3) the amount of money he kept secreted in a red leather chair in his home; (4) how recently he had kept money secreted in this red leather chair; (5) whether or not he had a joint bank account at the Shawmut National Bank with his wife Mary Hooley, and (6) whether or not he currently had a safe deposit box. Bearing in mind the recital of facts which was the basis of the application for the search warrant above mentioned, it could hardly be concluded, at least in respect of some of the questions, that a responsive answer clearly could not result in an incriminating disclosure. See Hoffman v. United States, 1951, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118. Maybe as to some of the questions the privilege was erroneously claimed; but as explained in our opinion in Carlson v. United States, such conduct in the grand jury room is not a completed criminal contempt of court.

On December 8, 1952, the grand jury filed in the court a "presentment" reciting that Paul J. Hooley "did wilfully, deliberately, and contumaciously, by evasion and irresponsive answers, obstruct the process of this Court, and did obstruct justice in failing and refusing to answer proper questions in the Grand Jury proceedings".

The court gave notice of a hearing on the grand jury presentment, but as in the Carlson case there was an inherent ambiguity as to the nature and scope of this scheduled hearing. The presentment did not charge, in so many words, that Hooley had already committed a "criminal contempt" of court in his appearance before the grand jury, and the presentment may have been no more, in effect, than a request by the grand jury for a ruling by the court on the availability of the privilege against self-incrimination with respect to the particular questions which Hooley had declined to answer on that ground. But we do not rest our decision on the ground that Hooley had not been adequately apprised, in substantial compliance with Rule 42 (b), that he was being called to answer a specific charge of an already completed criminal contempt. Hooley has not claimed, as did Carlson, that he was prejudicially affected by the failure of the court substantially to follow the procedure laid down in Rule 42(b). Throughout the hearing it was evident that the court understood, and counsel for Hooley understood, that the proceeding was one in criminal contempt, in which the court was to determine whether Hooley had already committed such offense in the course of his appearance before the grand jury.

It is true that at various points the court expressed a willingness to afford Hooley an opportunity to make his peace by appearing again before the grand jury and answering the questions to which he had not given satisfactory responses. The court said, "what I am going to do is give him a chance to purge himself of contempt." Hooley did not avail himself of this opportunity, and the hearing proceeded. This is all entirely consistent with the assumption that the hearing was on a charge of an...

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  • Brown v. United States
    • United States
    • U.S. Supreme Court
    • 9 March 1959
    ...341 U.S. 944, 71 S.Ct. 1013, 95 L.Ed. 1369; Carlson v. United States, 1 Cir., 209 F.2d 209 (18-month sentence vacated); Hooley v. United States, 1 Cir., 209 F.2d 219 (nine-month sentence vacated); O'Keefe v. United States, 1 Cir., 209 F.2d 223 (nine-month sentence vacated); Maffie v. United......
  • Gelbard v. United States United States v. Egan 8212 110, 71 8212 263
    • United States
    • U.S. Supreme Court
    • 26 June 1972
    ...there was no hint of either the right to, or the necessity for, any discovery proceedings against the Government. Hooley v. United States, 209 F.2d 219 (CA1 1954). Congress was, of course, free to expand the scope of inquiry in these proceedings, to enlarge the issues to be tried, and to al......
  • In re Amalgamated Meat Cutters & Butcher W., etc.
    • United States
    • U.S. District Court — Eastern District of Wisconsin
    • 12 November 1975
    ...See, e. g., In Re Meckley, 137 F.2d 310 (3d Cir. 1943), cert. denied 320 U.S. 760, 64 S.Ct. 69, 88 L.Ed. 453 (1943); Hooley v. United States, 209 F.2d 219 (1st Cir. 1954), cert. denied 347 U.S. 953, 74 S.Ct. 678, 98 L.Ed. 1098 (1954); United States v. DeSimone, 267 F.2d 741 (2d Cir. 1959), ......
  • Carlson v. United States, 4732-4734.
    • United States
    • U.S. Court of Appeals — First Circuit
    • 7 January 1954
    ...the appeals are dismissed as moot. 1 The other opinions in this group of cases, in the suggested order of reading, are in Hooley v. United States, 1 Cir., 209 F.2d 219; O'Keefe v. United States, 1 Cir., 209 F.2d 223; Maffie v. United States, 1 Cir., 209 F.2d 225; Daly v. United States, 1 Ci......
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