Hooley v. United States, 4737-4739.

• Decision Date: 07 January 1954
• Docket Number: No. 4737-4739.,4737-4739.
• Citation: 209 F.2d 234
• Parties: HOOLEY v. UNITED STATES (three cases).
• Court: U.S. Court of Appeals — First Circuit

209 F.2d 234 (1954)

HOOLEY v. UNITED STATES (three cases).

Nos. 4737-4739.

United States Court of Appeals First Circuit.

January 7, 1954.

Joseph J. Gottlieb, Boston, Mass. (Lawrence E. Cooke, Boston, Mass., with him on brief), 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.

In No. 4737, Mary A. Hooley appeals from a judgment of the district court entered December 16, 1952, imposing upon her a sentence of imprisonment for one year upon conviction of the offense of criminal contempt. This is one of a group of appeals which we heard together, since they all arose out of a federal grand jury investigation of the Brink's robbery in Boston on January 17, 1950, and had several features in common.¹ See our main opinion in this group of cases in Carlson v. United States, No. 4732, 1 Cir., 209 F.2d 209.

Mrs. Hooley is a sister of "Specs" O'Keefe, one of the prime suspects in connection with the Brink's robbery. She is also the wife of Paul J. Hooley, who was appellant in No. 4743, 209 F.2d 219.

As appears in Hooley v. United States, No. 4743, 1 Cir., 209 F.2d 219, the Boston home of Mr. and Mrs. Hooley was searched on April 27, 1950, pursuant to a search warrant issued by a United States Commissioner upon application by a special agent of the Federal Bureau of Investigation. In applying for the warrant the FBI agent affirmed, under oath, that he had reason to believe that approximately $60,000, a part of the Brink's loot, was being unlawfully held and possessed by Paul and Mary Hooley and secreted in their home. The return to the warrant recited that "nothing was found to be seized."

Subsequently, Mary Hooley was summoned as a witness before the grand jury investigating the Brink's case. She appeared and was duly sworn, and during several days early in December, 1952, she was subjected to a searching and vigorous examination by an Assistant United States Attorney. The transcript of her testimony before the grand jury covers 96 printed pages of the present record.

She proved to be an evasive and uncooperative witness, and her frequent "I don't remember" answers were strongly suggestive of perjury.

The Assistant U. S. Attorney repeatedly assured her that she had nothing to fear personally from giving truthful answers to the questions; that she was not suspected of being a participant in the Brink's robbery; that the government was not contemplating seeking any indictment against her in connection therewith; that she had "immunity" in connection with any testimony she might give before the grand jury. But the type of questioning to which she was subjected belied these disarming assurances. The interrogator continued to press her for answers which might indicate that she had been a knowing recipient, directly or indirectly, of part of the Brink's loot, or that she had criminally participated in a conspiracy to hide part of the money and to prevent its being traced by FBI agents. One would indeed be naïve to suppose otherwise, after reading the transcript of her examination.

To several key questions she responded that she declined to answer on the ground of her privilege against self-incrimination. At this point it is hardly necessary to observe that the privilege, if otherwise properly invoked, is not defeated by the assurance of the U. S. Attorney that the witness will be held immune from indictment on account of any admissions which may be elicited from her.

Notwithstanding the pretty plain indications of perjury, the government elected not to proceed against Mrs. Hooley by way of indictment for that offense. Instead, on December 8, 1952, the Assistant U. S. Attorney went before the district court and made an oral motion that Mrs. Hooley be adjudged in contempt. The district court promptly adjudged her guilty of contempt and imposed a sentence of one year. However, upon indication by Mrs. Hooley that she would like an opportunity to engage counsel, the district court vacated the sentence and order, held her in $5,000 bail, and continued the case.

On December 16, 1952, the case came on for hearing on the government's oral motion for adjudication in contempt. At this hearing it seems that the district court did not regard itself as proceeding under Rule 42(b) of the Federal Rules of Criminal Procedure, 18 U. S.C., to determine whether Mrs. Hooley had committed a completed criminal contempt of the court's authority in her appearance before the grand jury. See our discussion in Carlson v. United States, No. 4732, 1 Cir., 209 F.2d 209. Upon the contrary, the court concentrated its attention upon seven or eight questions as to which Mrs. Hooley had...