Howard v. United States, 14126.

• Decision Date: 16 June 1950
• Docket Number: No. 14126.,14126.
• Parties: HOWARD v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

182 F.2d 908 (1950)

HOWARD v. UNITED STATES.

No. 14126.

United States Court of Appeals Eighth Circuit.

June 16, 1950.

Ira B. McLaughlin, Independence, Mo., for appellant.

Max H. Goldschein, Special Assistant to the Attorney General (Vincent P. Russo, Special Assistant to the Attorney General, Sam M. Wear, United States Attorney, and Harry F. Murphy, Assistant United States Attorney, Kansas City, Mo., were with him on the brief), for appellee.

Before SANBORN, JOHNSEN, and RIDDICK, Circuit Judges.

SANBORN, Circuit Judge.

The substantial question for decision in this case is whether a witness who gives false and evasive testimony before a federal Grand Jury and prevents it from ascertaining the truth, thereby obstructing its inquiry, may be adjudged guilty of civil contempt by the District Court and committed to the custody of the United States Marshal until the witness elects to testify truthfully or until the further order of the court.

The answer to this question, we think, depends upon whether or not the United States District Courts have the power, under § 401, Title 18 U.S.C.A.,¹ to keep the administration of justice free from obstructions due to the deliberate suppression of the truth by witnesses through perjury, deceit, and evasion. That the power to punish for contempt, like other judicial powers, is capable of abuse, has long been recognized. "But that is not an argument to disprove either its existence, or the necessity of its being lodged in the courts. That power cannot be denied them, without inviting or causing such obstruction to the orderly and impartial administration of justice as would endanger the rights and safety of the entire community." Ex parte Terry, 1888, 128 U.S. 289, 309, 9 S.Ct. 77, 81, 32 L.Ed. 405. Compare, Loubriel v. United States, 2 Cir., 9 F.2d 807, 808.

The facts out of which this case arises are, in substance, as follows: A Grand Jury was impaneled by the District Court on March 14, 1949. The appellant was summoned as a witness and examined before the Grand Jury on February 2, 6, 7 and 8, 1950. On February 8, 1950, the Grand Jury filed a presentment stating that on September 28, 1949, it began investigating the violation of certain federal laws and the identity of the person or persons violating those laws; that it became necessary to ascertain the facts concerning the acquisition by the appellant of about $18,000 during the years 1944 to 1949, which she had deposited in various savings and checking accounts, and the name of the person from whom she acquired this money; that it appeared that the appellant was presently employed in the office of the County Assessor of Jackson County, Missouri, and had been employed there for about fourteen months at a monthly salary of $175; that, prior to such employment, she had been employed as a saleswoman by various employers; that as such her weekly earnings averaged about $40, except for one year when she earned between $2,700 and $3,000; that prior to July, 1944, she had made no substantial deposits in any bank in Missouri; that in July, 1944, she opened savings accounts in Kansas City, Missouri, with the Commerce Trust Company and the First National Bank; that in September, 1945, she opened a checking account, and in May, 1946, a savings account, with the Mercantile Home and Trust Company, of Kansas City; and that from July 19, 1944, to July 28, 1949, her total deposits in these accounts aggregated more than $28,000.

The Grand Jury in its presentment stated that the appellant testified that she had received, in 1932, 1933, and 1934, about $18,000 from Jack Griffin, alias Jack Gregory (who is said to have been a Kansas City gangster), and that she had carried it around with her, and concealed it in various places in Kansas City and St. Louis, for more than ten years after Griffin's disappearance in 1934 and after it had been reported that he had probably been killed in retaliation for the murder of Johnnie Lazia a gang leader; that the appellant had begun depositing this money in 1944; and that in September, 1947, she gave Charles Gargotta also a Kansas City gangster; see Claiborne v. United States, 8 Cir., 77 F.2d 682, 683 $2,400 in cash to purchase a Buick automobile; that she had this money in a manila envelope, but did not know how much money the envelope contained.

The concluding paragraphs of the presentment read as follows:

"The Grand Jury further presents that the said Blanche A. Howard, in answer to questions propounded to her, fails and refuses to truthfully tell where she got the $18,000 in cash which she sporadically deposited in various amounts at the Commerce Trust Bank, First National Bank, and Mercantile Home and Trust Company, or to truthfully tell the name of the person from whom she received said $18,000.

"That the said witness, Blanche A. Howard, in answer to questions propounded to her, fails and refuses to truthfully tell the Grand Jury the full part that Charles Gargotta played in the purchase of the Buick automobile purchased in her name from the Markl Motor Company.

"The Grand Jury, therefore, charges that the said witness, Blanche A. Howard, has given obstructive, evasive, perjurious and contumacious answers to questions propounded to her before said Grand Jury and that she has deliberately, willfully and contumaciously obstructed the investigation of this Grand Jury in the matters hereinbefore set out.

"That the said witness, Blanche A. Howard, has willfully, deliberately, and contumaciously obstructed the process of this Court in giving answers which impeded, delayed, and hampered the instant investigation which sought to shut off and block the instant inquiry in giving answers which were shifts and subterfuges instead of truths, in blocking the search for truth by answering with the first preposterous fancy which she chose to put forth; and in otherwise failing and refusing truthfully and fully to answer these proper questions put to her in the proceedings before the Grand Jury and

"The Grand Jury, Therefore, Prays the coercive power of the Court to compel the witness, Blanche A. Howard, to truthfully answer without evasion or subterfuge the questions propounded to her."

A copy of the presentment was served on the appellant on February 8, 1950, and a hearing thereon was tentatively set for February 10, 1950. The appellant, on February 10, asked for a reasonable time to prepare her defense, and suggested two weeks. The court set the hearing for February 13, 1950, at which time the appellant requested ten days additional time. The request was denied, and she filed her return and answer denying that her conduct in answering questions before the Grand Jury was contumacious, obstructive, evasive or perjurious, or that she had wilfully and contumaciously obstructed the investigation of the Grand Jury. She also denied that her testimony before the Grand Jury relative to having deposited money given her by Jack Griffin, alias Jack Gregory, in 1932, 1933, and 1934, was susceptible to the construction placed upon such testimony by the presentment; and stated "that the actual purport and intention of her testimony was that all of the money that she ever received from said Gregory might have aggregated in the neighborhood of $17,000 or $18,000, but that large amounts of said money were returned periodically to said Gregory before his disappearance, so that, at the time of his disappearance she had only a part of said money, which she kept at the places mentioned and later deposited some portions thereof in the banks aforesaid." She asserted that she answered the questions propounded to her before the Grand Jury truthfully and as accurately as her recollection would permit. She stated that she believed that if more time was allowed her to investigate the facts surrounding the making of deposits, she could more fully and accurately give information relative thereto.

To support the charges contained in the presentment, the Government, at the hearing, introduced a transcript of the appellant's testimony before the Grand Jury and certain exhibits connected therewith.

The evidence of the witnesses who appeared on the appellant's behalf tended to show that probably around 1935 she had some money in the home of her mother at St. Joseph, Missouri; that the appellant's brother, between 1944 and 1949, had given to her not "over twelve or fifteen hundred dollars"; that a cousin several times had borrowed money from the appellant and had paid it back by depositing it in the appellant's bank account; that on June 25, 1949, this cousin deposited $500 in the appellant's account; that during the time the appellant was employed by Stern-Slegman-Prins, from 1937 to 1940, in Kansas City, she kept a manila envelope in the vault of her employer; and that in 1941 James McAteer, of St. Louis, Missouri, at whose home the appellant had occasionally lived while in that city, borrowed $800 in cash from her for a few days, and returned it by wire to her at Kansas City. This evidence was intended to corroborate, to some extent, the appellant's testimony before the Grand Jury that, prior to 1944, she carried the money received from Griffin, or some substantial part of it, around with her; that she had received gifts of money from friends and relatives; and that some of her deposits were repayments of loans.

The judgment of the court, from which this appeal is taken, so far as pertinent, reads as follows:

"It appearing to the Court that the respondent, Blanche A. Howard, has previously testified before the Grand Jury that in the years 1932, 1933, and 1934, she received between seventeen and eighteen thousand dollars from one Jack Griffin, alias Jack Gregory, to hold for him, and that although she had read many newspaper articles reporting that he was murdered because he allegedly killed one Johnny Lazia, a notorious Kansas City gang leader, and that she hadn't seen or heard from Gregory since his disappearance in 1934, s...