Before MOORE, FRIENDLY and SMITH, Circuit Judges.
J. JOSEPH SMITH, Circuit Judge.
This is an appeal from a judgment of contempt entered July 5, 1962 in the United States District Court for the Southern District of New York, by Judge MacMahon, upon a certificate filed pursuant to Rule 42(a) of the Federal Rules of Criminal Procedure, 18 U.S.C.A., sentencing the defendant to fifteen months to be served at the expiration of a sentence now being served in the State of New York and a sentence imposed by the State of Florida.
The actions of defendant which prompted the use of the contempt power occurred during a twelve week trial, upon an indictment charging twenty-nine defendants with violations of the federal narcotics laws. The first trial before Judge Levet ended in a mistrial when the foreman of the jury sustained injuries on the eve of summation at which time no alternate jurors remained. At the conclusion of said trial, and prior to the declaration of a mistrial, Judge Levet adjudged Galante and Mirra in contempt of court. United States v. Galante, 298 F.2d 72 (2 Cir.1962). An insight into the succession of delays and attempts to forestall a trial may best be gained by referring to some of the related cases previously decided by this court. United States v. Bentvena, 288 F.2d 442 (2 Cir. 1961); United States v. Galante, supra; United States v. DiPietro, 302 F.2d 612 (2 Cir.1962); United States v. Bentvena, 304 F.2d 883 (2 Cir.1962).
Appellant concedes, as indeed he must, that the conduct complained of was contemptuous on its face but argues that appellant "was too mentally ill to formulate the intent to be contumacious." In effect he urges that the actions were not intentional. Appellant also argues that he was not sane at the time of sentence and so the sentence is unlawful as an insane person may not be sentenced to imprisonment. With respect to defendant's claims of insanity the trial court concluded the following, as set out in the certificate:
"The court had him examined by a psychiatrist, took time out of this trial for three days, conducted psychiatric hearings, found him able, capable of understanding the trial, of standing trial. Despite that, he persisted in a course of conduct, faked a hanging attempt, attempted to slash his wrists but made absolutely sure that it did not kill him. There are seven cuts on each arm placed about an inch apart, a deliberate effort to make certain it wasn't effective.
"With that plus your repeated requests and a mandamus of the United States Court of Appeals, the Court directed a further examination of Panico. A psychiatrist examined him and found him sane in all respects.
"The Court takes notice of the fact that he is now an inmate at Sing Sing, serving two and a half years to five years, that he faces on top of that 18 months for a conviction in Florida, and that there are charges against him pending in Bronx County as well as the charge for which he has just stood trial in this Court. Obviously it was to his advantage to break up this trial and to do everything in his power to inject prejudice in the record. The contempt sentence, however heavy, would be disproportionate to any sentence he might face here were he found guilty. His acts were wilful, deliberate, calculated to impede, obstruct, delay and abort this trial.
"The Court takes judicial notice of the entire record before Judge Levet, of his behavior there, his good behavior there. The Court takes judicial notice of his behavior here prior to the incident of his jumping in the jury box and of the many conferences and sessions the Court had with him, with Mr. Todaro and with his other counsel, with you, Mr. Aronne, in attempts to arrange substitution for times when you couldn't be here. There is nothing insane about this man whatever. The Court so found it at the time. I so find it now."
Although the expert witnesses testified that Panico was not malingering they were not present at the time of the incidents which prompted the summary conviction for contempt. Moreover, it is not at all clear that they did not mean only that he was not faking when he was examined by them. In any event, the court is not obliged to accept the conclusions of the experts. We do not think that the conclusion of Judge MacMahon with respect to the deliberate and calculated nature of defendant's acts constitutes reversible error. United States v. Galante, supra at p. 75 of 298 F.2d and cases cited therein.
Perhaps more serious than the correctness of the determination with respect to defendant's calculated intentions is the propriety of making such a determination in a 42(a) proceeding when a substantial question has been raised which requires expert testimony. On the one hand is the need for the court to mete out swift punishment in order to preserve the integrity of the judicial system. The instant case is eloquent testimony as to the need to preserve order in the courtroom lest defendants be convicted unjustly and absent the safeguards of an orderly and impartial trial. Justice can be reached only in an atmosphere of order and dignity. There can be little doubt that the effectiveness of punishment as a deterrent is related not only to the quality of the possible punishment but to the certainty and promptness as well. Were we to require resort to the more lengthy procedures of 42 (b) whenever the defendant raises a serious question of intention or "mens rea" we fear this would seriously undercut the power of the courts to punish for contempt. On the other hand the very nature of the power to punish for contempt requires that the power be scrupulously circumscribed, Brown v. United States, 359 U.S. 41, 52, 79 S. Ct. 539, 3 L. Ed. 2d 609 (1959), and 42(a) makes no provision for the taking of any testimony. But see United States v. Galante, supra at 77 of 298 F.2d (Friendly, C.J., dissenting). Because testimony had been taken concerning appellant's sanity during the course of the trial, we do not reach the question of whether such testimony may be taken in connection with a 42(a) proceeding since the Judge is permitted to consider all things which took place during the proceedings in connection with which the contempt arises. Particulaly the defendant's intention inasmuch as the defendant's subjective state of mind is the primary focus of the inquiry, for contempt is, after all, an "intentional act committed in defiance of the authority and dignity of the court." 61 Col.Law Rev. 727 (1961).
If the issue before the court is considered to be the propriety of the trial court's deciding, in a 42(a) proceeding, a question of fact which by its very nature does not lend itself to determination merely by consideration of factors which impress themselves directly upon the sensory perceptions of the presiding judge the answer is the same. The question in the instant case did not relate to conduct which transpired beyond the presence of the court as in United States v. Sacher, 182 F.2d 416 (2 Cir.1950), cert. denied 341 U.S. 952, 71 S. Ct. 1010, 95 L. Ed. 1374 (1951). On the contrary, the inquiry was concerned with the subjective character of actions which did take place in the presence of the court.
The judgment is affirmed.
FRIENDLY, Circuit Judge ...