Lumbard, Chief Judge, and Waterman and Smith, Circuit Judges.
J. JOSEPH SMITH, Circuit Judge:
Anthony Mirra, confined under a 20-year sentence after trial to the jury on a charge of narcotics conspiracy, judgment affirmed in United States v. Bentvena, 319 F.2d 916 (2d Cir.), cert. denied [Ormento v. U. S., Di Pietro v. U. S., Fernandez v. U.S., Panico v. U. S., Galante v. U. S., Loicano v. U. S., Mancino v. U. S., Sciremammano v. U. S., Mirra v. U.S.], 375 U.S. 940, 84 S. Ct. 345, 346, 353, 355, 360, 11 L. Ed. 2d 271, 272 (1963), moved under 28 U.S.C. § 2255 to vacate the sentence on the ground that on an occasion during the trial Mirra had been mentally incompetent to understand the proceedings against him and to assist counsel in his own defense. He also moved in the § 2255 proceeding to disqualify the trial judge, Hon. Lloyd F. MacMahon. The motions were denied without hearing and Mirra appeals. We find no error in either ruling and affirm the judgment.
The incident on which Mirra's claims are based occurred during his second trial. The history of the proceedings up to that point may be culled from reports of the various appeals to date. During the first trial, before Levet, J., and a jury, Judge Levet found it necessary to remand the defendants. This court affirmed the order, describing the circumstances as follows, 288 F.2d 442, 445-446 (2d Cir. 1960):
"We also hold that under all the circumstances of the case, especially a succession of misadventures which have already caused numerous delays and adjournments in the presentation of the evidence, the order of the trial judge was a proper exercise of discretion for the purpose of ensuring the orderly completion of the trial.
"From its inception the trial has been bedeviled by frequent delays. Commenced on November 21 rather than November 14 because of the disappearance of a defendant (Angelo Tuminaro) still a fugitive, it was thereafter impeded by apparent illness, accident and other misfortune.
"John Ormento became ill Tuesday, December 6. The trial halted at 2:30 in the afternoon and did not resume until Friday, December 9. On Wednesday, December 14, David Petillo found himself unwell and was threupon transferred to Bellevue where a preliminary diagnosis of cardiac insufficiency was made. After hearing conflicting medical testimony, the trial judge granted a further adjournment. Tests subsequently established that Petillo was not suffering from heart disease.
"The trial was then scheduled to resume Thursday, December 22. On that day, after a motion for mistrial (grounded on prejudice to all the defendants by the prior delays) had been denied, it was found impossible to continue because one of the defendants (Sancinella) was not present. The defaulter appeared that evening and was remanded. On Tuesday, December 27, the court was informed that counsel for Sancinella was suffering from an incapacitating illness. Sancinella was thereupon directed to retain new counsel, or accept court-appointed counsel, and to familiarize said counsel with the facts of the case. Because of this and the death of a juror's brother, the trial was then adjourned to January 3, 1961. On January 3, Sancinella indicated an inability to procure other counsel; the court therefore assigned him Albert Krieger, Esq., counsel for the defendant Gellman. Sancinella refused, however, to accept or confer with any counsel other than the still incapacitated attorney who had represented him at the outset. In consequence, the trial judge granted Sancinella a mistrial and severance.
"Reports that William Bentvena was ill forced suspension of proceedings on Friday, January 13.
"On Wednesday, January 25, the court was informed that the defendant, Struzzieri, had been injured in an automobile accident which had occurred at about 3:30 A.M. that morning. Investigation by the government revealed that the car with which Struzzieri had collided was driven by one Franzione, a man possessed of an extensive criminal record and despite his denials, apparently well acquainted with Struzzieri. On January 27, the physician in charge of Struzzieri at Queens General Hospital informed the court that Struzzieri could be discharged from the hospital the following day. Disagreement as to the possibility that Struzzieri might be suffering from a subdural hematoma, resulted in extended hearings at which medical testimony was presented by a court-appointed neuro-surgeon, a resident at the hospital, and a neurologist retained by Struzzieri. The defendant's neurologist testified that Struzzieri's condition demanded a diagnosis of 'subdural suspect'; he urged a spinal tap to clarify the matter. The court-appointed physician thereupon re-examined the patient and reported that he was convinced beyond a reasonable doubt that Struzzieri did not have a subdural hematoma, was malingering, and was able to stand trial. Struzzieri subsequently refused to permit a spinal tap.
"To the date of remand there had been precisely 25 Trial days; 6 in November, 6 1/2 in December, 12 1/2 in January. The government had not yet finished putting in its case.
"At the trial's commencement on November 21, the court selected four alternate jurors. By January 30 two jurors had been excused leaving only two alternates for further emergencies, little enough insurance for a long trial in the middle of a severe winter.
"Before remanding appellants, the trial judge, out of the presence of the jury, considered the substantial facts in the development of the case and concluded:
'I am unable to discriminate between the defendants. I realize that counsel may be to some extent inconvenienced. However, in order to assure the presence of the defendants at the trial I am, I believe, after balancing the situation, constrained to * * * ...