decided.: May 14, 1958.
UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
THOMAS TRIGILIO, DEFENDANT-APPELLANT,
Before SWAN, HINCKS and MOORE, Circuit Judges.
Defendant has appealed from a judgment finding him guilty of criminal contempt of court, 18 U.S.C.A. § 401, and sentencing him to three months imprisonment for refusal to answer questions put to him before a federal grand jury, after the court directed him to answer them. The issue presented by the appeal is whether the district court was correct in ruling that appellant did not have reasonable cause to fear that answering the questions might tend to incriminate him.
The federal grand jury was investigating bank robberies in Buffalo, New York, in which Frank Coppola was suspected of having been involved.*fn1 Coppola was the brother-in-law and a co-employee of appellant. Most of the questions which he refused to answer for fear of self-incrimination concerned conversations had by him with his brother-in-law both before and after the dates of the robberies; a few questions referred to facts or occurrences observable by the witness.*fn2
As counsel for the witness explained to the court, his fear of incrimination was based on the misprision of felony statute, 18 U.S.C.A. § 4. The appellee argues that knowledge of commission of a felony, which answers by the witness might have disclosed the witness to have had, was not enough to establish the crime of misprision, which requires not only knowledge of the felony but also a failure to disclose it as soon as possible, and some affirmative act of concealment.*fn3 Since there was no implication of any act of concealment by the witness, it is argued that he could not claim the privilege against self-incrimination. The argument implies that a witness must suggest that he did violate the misprision statute before he can assert that he fears he may be charged with violating it. This contention cannot be sustained. As the Supreme Court said in Hoffman v. United States, 341 U.S. 479, 486, 71 S. Ct. 814, 818, 95 L. Ed. 1118: "To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer * * * might be dangerous because injurious disclosure might result." Indeed, as the appellee's brief candidly admits, page 12: "It is recognized, of course, that it could not be said with certainty that answers to this kind of question could not 'furnish a link in the chain of evidence' needed to prosecute the appellant for a federal crime." The possibility that the answers might furnish such a link, brings the case, in our opinion, within the principles declared in Hoffman v. United States, 341 U.S. 479, 71 S. Ct. 814, 95 L. Ed. 1118; Trock v. United States, 351 U.S. 976, 76 S. Ct. 1048, 100 L. Ed. 1493, which reversed this court's decision in 232 F.2d 839, and United States v. Miranti and Bando, 2 Cir., 1958, 253 F.2d 135.
Moreover, unless the witness was limited by his counsel's statement to reliance on the misprision statute, we think, as he now argues, that he might reasonably have feared that his answers would furnish links in a chain of evidence which might result in a charge that he was an accessory after the fact, 18 U.S.C.A. § 3, or a principal, 18 U.S.C.A. § 2, or a conspirator, 18 U.S.C.A. § 371, in one or more of the robberies under investigation. Whether he was limited to reliance on fear of misprision we need not decide, since, as already indicated, we believe his claim of privilege on that ground was justifiable.