Before DUFFY, KNOCH and MAJOR, Circuit Judges.
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 ...