Maffie v. United States, 4735.

• Decision Date: 07 January 1954
• Docket Number: No. 4735.,4735.
• Parties: MAFFIE v. UNITED STATES.
• Court: U.S. Court of Appeals — First Circuit

209 F.2d 225 (1954)

MAFFIE v. UNITED STATES.

No. 4735.

United States Court of Appeals First Circuit.

January 7, 1954.

Michael Carchia, Boston, Mass. (Stephen C. Struffolino, Lawrence, 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.

Adolph Maffie appeals from a judgment imposing a sentence of imprisonment for one year upon conviction of the offense of criminal contempt. The case is one of several which we heard together, arising out of a federal grand jury investigation of the Brink's robbery in Boston on January 17, 1950.¹ Our main opinion in this group of cases, in Carlson v. United States, No. 4732, 1 Cir., 209 F.2d 209 should be read for a fuller understanding of the present case. But this case has certain difficult features of its own, and as we keep thinking about it, we fear this will develop into a main opinion too.

On December 16, 1952, Maffie appeared as a witness before the Brink's grand jury, pursuant to summons. After declining to sign a broad "Waiver of Immunity" tendered him by the Assistant United States Attorney, Maffie testified at some length. He answered certain questions regarded by him as innocuous; but for the most part the examination did not get anywhere because of his repeated claim of privilege against self-incrimination.

On the following day the grand jury filed in the court a "presentment" reciting that Adolph Maffie "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 district court gave notice of a hearing on this presentment. Notwithstanding the view taken by the district court in some of the companion cases, the court in the present case never seems to have regarded the presentment as initiating a proceeding on a charge of a consummated criminal contempt, in which the court was called upon to decide whether the conduct of Maffie in the course of his examination before the grand jury constituted a criminal contempt of the authority of the court. Upon the contrary, the court ruled at the hearing that Maffie was entitled to claim the privilege of declining to answer certain of the questions which had been addressed to him, but for the rest that the privilege had been improperly invoked; and Maffie was ordered to go back to the grand jury and answer the questions as to which the privilege did not apply. Upon Maffie's announcement in open court, through his counsel, that he would not comply with the direction of the court, the court adjudged Maffie to be in criminal contempt of its authority on account of disobedience of this order, presumably under 18 U.S.C. § 401(3).

We have not too clear an idea just what the terms of this order were. It was expressed from time to time in varying phraseology, and sometimes piecemeal, in a long, running colloquy with counsel. But we make nothing of that point, since appellant has not urged that the order was too vague to apprise him adequately of what he was supposed to do. Without doubt it was clear enough, as to certain of the questions, that Maffie was ordered to go back and answer them. However, Maffie chose not to comply even with the parts of the order that were definite enough.

In thus electing to disobey the district court order and inviting the judgment of criminal contempt, Maffie took his chances on being able to convince an appellate court that the district court committed reversible error in ruling that the privilege against self-incrimination was not properly invoked under the circumstances. But if he does thus succeed in this court, or ultimately on review by the Supreme Court, then the district court judgment of conviction for criminal contempt will be vacated because of the appellate determination that Maffie did not disobey a "lawful" order of the district court within the meaning of 18 U.S.C. § 401(3). That is what happened in Hoffman v. United States, 1951, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118.

There is a preliminary motion before us, upon which we have reserved action.

Maffie moved that this court receive in evidence and consider a number of Boston newspaper stories for the limited purpose of demonstrating that Maffie had reasonable cause to apprehend danger of self-incrimination from direct responses to the questions the district court ordered him to answer. In support of this motion appellant relies upon Hoffman v. United States, 1951, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118. These newspaper stories, which were never offered to the district court, describe the FBI and grand jury investigations of the Brink's case and indicate that many individuals who were associates of "Specs" O'Keefe were suspected of complicity in the robbery. Specific references are made to Maffie in a Boston Daily Globe story dated December 18, 1952, wherein it is stated that Maffie was known to federal officials "as a big time racketeer and gang leader." He was described as an associate of "Specs" O'Keefe, "chief suspect in the Brink's robbery", and was understood "to possess knowledge concerning what became of the Brink's money".

In the Hoffman case the district court had held the defendant in criminal contempt for refusing to answer certain questions which the court had directed him to answer before a federal grand jury. On appeal, 185 F.2d 617, the court of appeals declined to consider certain proffered newspaper clippings and other exhibits linking the defendant with underworld activities, because such evidence had not been before the district court when it issued its order. Subsequently this additional evidence had been presented to the district court in support of what was in effect a motion to vacate the contempt order, which motion the district court denied. The court of appeals affirmed the judgment of conviction. On certiorari the Supreme Court reversed. In a clear dictum it said that the court of appeals should have considered this supplementary evidence. We have some technical difficulty with this dictum, since it does not appear that the defendant took an appeal from the subsequent order denying the motion to vacate; and the only question before the appellate court was the correctness of the original judgment of conviction, which was entered before the said supplementary evidence had ever been offered to the district court. However, until we are told explicitly by the Supreme Court to the contrary, we shall decline to believe that the Hoffman case was intended to introduce a procedural innovation requiring an appellate court, upon review of a judgment below, to receive and consider additional evidence which had never been presented to the court rendering the judgment under review. We therefore dismiss Maffie's motion to supplement the present record. We have no occasion to consider whether, upon remand of the case to the district court, a motion for a new trial could be made under Rule 33, Federal Rules of Criminal Procedure, 18 U.S.C., upon the basis of the supplementary evidence.

Some general observations on the privilege against self-incrimination may serve to put in better focus the issues we have to decide in this case.

We can readily understand the feeling of utter frustration which the prosecuting officials must have experienced throughout this grand jury investigation. But they were attempting the impossible, in the face of the constitutional privilege.

Our forefathers, when they wrote this provision into the Fifth Amendment of the Constitution, had in mind a lot of history which has been largely forgotten to-day. See VIII Wigmore on Evidence (3d ed. 1940) § 2250 et seq.; Morgan, The Privilege Against Self-Incrimination, 34 Minn.L.Rev. 1 (1949). They made a judgment and expressed it in our fundamental law, that it were better for an occasional crime to go unpunished than that the prosecution should be free to build up a criminal case, in whole or in part, with the assistance of enforced disclosures by the accused. The privilege against self-incrimination serves as a protection to the innocent as well as to the guilty, and we have been admonished that it should be given a liberal application. Hoffman v. United States, 1951, 341 U.S. 479, 486, 71 S.Ct. 814, 95 L.Ed. 1118. If it be thought that the privilege is outmoded in the conditions of this modern age, then the thing to do is to take it out of the Constitution, not to whittle it down by the subtle encroachments of judicial opinion.

Sometimes it is said that one who claims the privilege impales himself on the horns of a dilemma: Either he is obviously a criminal, or else he is a liar and a perjurer in stating under oath that he declines to answer because a truthful answer would incriminate him. Occasionally, but probably infrequently, this may be so. It depends upon the nature of the question.

Suppose the question is: "Did you pick X's pocket and steal his wallet?". Only a "Yes" answer could be incriminating, and if the witness claims his privilege, the fair inference is that he must be a pickpocket and a thief. That natural inference might be drawn to his detriment in the ordinary affairs of life — for instance, a bank might conclude that such a person could hardly be a good risk for employment as a teller, if he has got himself in such a fix that he cannot answer a question like that. The only place such inference cannot be drawn is at a criminal trial; the prosecution cannot build up its case upon an incriminating inference from the accused's previous claim of privilege. Otherwise the privilege against self-incrimination would be nugatory, for claiming the privilege would be tantamount to an admission of guilt....