United States v. Chase

• Decision Date: 10 August 1960
• Docket Number: 12838.,No. 12837,12837
• Citation: 281 F.2d 225
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Walter Merlin CHASE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Wilbur Floyd HILLIARD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

281 F.2d 225 (1960)

UNITED STATES of America, Plaintiff-Appellee, v. Walter Merlin CHASE, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Wilbur Floyd HILLIARD, Defendant-Appellant.

Nos. 12837, 12838.

United States Court of Appeals Seventh Circuit.

August 10, 1960.

Jack A. Brunnenmeyer, Peoria, Ill., Harold L. Beamish, Aurora, Ill., for appellants.

Harlington Wood, Jr., U. S. Atty., Edward F. Casey and Marks Alexander, Asst. U. S. Attys., Springfield, Ill., for appellee.

Before DUFFY, KNOCH and MAJOR, Circuit Judges.

DUFFY, Circuit Judge.

Each of the appellants hereinafter referred to as defendants, entered pleas of guilty to five indictments charging them with violations of certain subsections of Title 18 U.S.C.A. § 2113, the Federal Bank Robbery Statute. Chase was sentenced to imprisonment for an aggregate of twenty years. Hilliard, who was a minor, received a sentence under the Youths Offenders Act, 18 U.S.C.A. § 5005 et seq. The heavy sentence received by Chase was due in part at least to the fact that Chase refused to testify before the pleas of guilty were entered. The United States Attorney told the Court that Chase was uncooperative, and urged that a sentence of from twenty to twenty-five years be imposed.

Several months after the sentencing, Chase and Hilliard were brought from prison to the City of Springfield, Illinois. They had been summoned to testify before a federal grand jury which was investigating three bank robberies in Illinois which had been committed respectively, in the months of April, May and August, 1958. These were the robberies to which the defendants had previously entered pleas of guilty. Defendants appeared before the grand jury on May 25, 1959, but each refused to testify as to his knowledge of the bank robberies, claiming that to do so might tend to incriminate him.

The following day each defendant was brought before a District Judge who was informed the defendants desired to have their attorneys present. Neither of the two attorneys who represented the defendants resided in the City of Springfield. The Judge said he would continue the matter, but before doing so, a stenographer of the United States Attorney's office was sworn and testified from her shorthand notes as to the questions put to each defendant before the grand jury and the answers thereto. The Court then inquired if the defendants would be willing to testify before the grand jury as to the three bank robberies, and each answered in the negative on the ground that such answers might tend to incriminate him. The Court continued the matter until June 2, 1959, and defendants were instructed to contact their attorneys and advise them of the date of the hearing. Defendants were confined to jail, but the mother of one of the defendants did contact one of the attorneys. She claimed that she had received the information as to the date of the hearing from the mother of the other defendant. This attorney claimed to have had an agreement with the United States Attorney that the latter would notify him when any hearing date was set, and he ignored the information conveyed to him. The result was that at the June 2nd hearing, neither attorney was present, and no other attorneys appeared for them.

It was clearly evident from the questions asked defendants by the United States Attorney and his assistants that such officials were attempting to have defendants testify that at least two other persons were involved with them as accomplices in the bank robberies. A large number of questions was asked of the defendants by the United States Attorney and his assistants of which the following are samples:

"It might incriminate you with what?"

"Do you think it might incriminate you, that is not your true reason, is it?"

"Haven\'t you another reason? Isn\'t that true?"

"Your reason isn\'t self incrimination or fear. Your reason is something else, isn\'t that true?"

Each defendant continued to refuse to testify on the ground that to do so might tend to incriminate him.

The Judge ascertained that neither defendant would agree to testify before the grand jury; he found each of them guilty of contempt, and entered judgment that each of them be committed to jail for one year, the service of such sentence to commence at the expiration of the sentence which had been previously imposed. Each judgment contained a provision that defendant could purge himself of the contempt within a reasonable time.

After consultation with counsel, each defendant filed a petition for leave to purge himself of the contempt, and each defendant, on July 30, 1959, again appeared before the grand jury and offered to testify as to any facts in reference to the investigation then being conducted except any questions which might incriminate him concerning federal offenses other than the specific offenses of which the defendant stood convicted. Each defendant testified in detail as to his own activities and participation in the bank robberies, but refused to identify any other person as an accomplice. As to all such questions, each defendant invoked the privilege against self-incrimination. Thereafter, the Court held a hearing. Counsel for defendants presented arguments and authorities. The Court announced its decision that defendants had not purged themselves of the original conviction of contempt.

Defendants urge upon this appeal that the District Judge was prejudiced against them because of their prior conviction. Also, that he was under a misapprehension as to their right to invoke the self-incrimination clause of the Fifth Amendment.

In his opinion on September 3, 1959, the Court said: "Well, gentlemen, the old familiar friend, the Fifth Amendment, is again invoked for the protection of confessed criminals. It is an old story the country over the last few years. The criminal has procured a great friend in the Fifth Amendment."

A further statement by the trial judge was: "Honesty, decency and truth are being ridiculed by the lawless and in some instances, (not in our case) by the unscrupulous lawyers for the lawless; all under the supposed cloak of the Fifth Amendment." He further said: "Is it not time for thoughtful persons to become aroused if the administration of justice is not to be taken over by the lawless? In my judgment, the simplest kind of decency and honesty require a stricter and a more reasonable interpretation and application of the Fifth Amendment than has heretofore been accorded it by some courts." In his revised opinion, the Judge commented upon the all too liberal interpretations placed on the Fifth Amendment by some Courts.

The Judge's statements from the bench clearly indicate that at least as a general proposition, he objected to the privilege of the self-incrimination clause of the Fifth Amendment being claimed by persons who had been convicted of crime. He referred to such persons as "the lawless." He also disagreed with the decisions of "some courts" which had given a liberal or broad interpretation to the self-incrimination clause.

It is well established that the rights and privileges under, and the protection of the Fifth Amendment of the Constitution of the United States extend to the guilty as well as to the innocent. McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153; Isaacs v. United States, 8 Cir., 1958, 256 F.2d 654; Brock v. United States, 5 Cir., 1955, 223 F.2d 681; Helton v. United States, 5 Cir., 1955, 221 F.2d 338. The Court of Appeals of the Second Circuit in United States v. Miranti, 253 F.2d 135, 141, stated the rule succinctly: "But the Constitution is for the despicable as well as for the admirable."

One of the recent decisions of the United States Supreme Court which discusses the proper approach courts should take on this question is Ullmann v. United States, 1955, 350 U.S. 422, 76 S.Ct. 497, 100 L.Ed. 511. The Court there stated, 350 U.S. at page 426, 76 S.Ct. at page 500:

"It is relevant to define explicitly the spirit in which the Fifth Amendment\'s privilege against self-incrimination should be approached. This command of the Fifth Amendment (`nor shall any person * * * be compelled in any criminal case to be a witness against himself * * *\') registers an important advance in the development of our liberty — `one of the great landmarks in man\'s struggle to make himself civilized.\' Time has not shown that protection from the evils against which this safeguard was directed is needless or unwarranted. This constitutional protection must not be interpreted in a hostile or niggardly spirit. Too many, even those who should be better advised, view this privilege as a shelter for wrongdoers. They too readily assume that those who invoke it are either guilty of crime or commit perjury in claiming the privilege. Such a view does scant honor to the patriots who sponsored the Bill of Rights as a condition to acceptance of the Constitution by the ratifying States. The Founders of the Nation were not naive or disregardful of the interests of justice. * * *"

In the same opinion, the Court said, 350 U.S. at page 428, 76 S.Ct. at page 501: "No doubt the constitutional privilege may, on occasion, save a guilty man from his just deserts. It is aimed at a more far-reaching evil * * *. Having had much experience with a tendency in human nature to abuse power, the Founders sought to close the doors against like future abuses by law-enforcing agencies."

In Ullmann, the Court quoted with approval from a decision of the Court of Appeals of the First Circuit, Maffie v. United States, 209 F.2d 225, 227, an opinion written by Chief Judge Magruder: "Our forefathers, when they wrote this...