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.
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.
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.
"Q. Now, a day or two after the said holdup of the Manufacturers and Traders Trust Company Clinton-Bailey office which occurred on February 15, 1956, did Frank Coppola say to you in substance, `You know, I pulled that job at the M & T,'? Did he say that to you? A. Sir, I refuse to answer that question." (App. p. 41)
"Q. Had you seen a man named Dario D'Antonio at the banana stall on a couple of days prior to the holdup? A. I refuse to answer." (App. p. 46)
"Q. Now, prior to this bank robbery — I am referring to the bank robbery which occurred on February 15, 1956 — did Frank Coppola have a conversation with you wherein he stated to you that the robbery of the M & T Bank would be an easy job? A. I refuse to answer that." (App. p. 45)
"Q. Did you on that occasion try to talk him out of such a plan to rob the bank? A. I refuse to answer that." (App. p. 45)