The opinion of the court was delivered by: MACMAHON
MacMAHON, District Judge.
Petitioners were two of thirteen defendants convicted by a jury after a tenweek trial of a conspiracy to import and distribute vast quantities of heroin in violation of the federal narcotics laws. They move under 28 U.S.C. § 2255 to vacate and set aside the judgments of conviction and the sentences imposed upon them on July 10, 1962. They also move to disqualify the trial court from considering their § 2255 application on the ground that the court "is [of necessity] a material witness."
We deny the motions because the claims asserted are irrelevant to the issue of whether petitioners were denied a fair trial, they were raised and rejected at trial and on direct appeal,
and they cannot be resurrected by the cumulative expert testimony proffered as new evidence.
The core of this application is a claim that petitioners were "denied a fair due process trial" because of allegedly insane conduct of a co-defendant, Salvatore Panico ("Salvatore"), during trial and rulings of the trial court with respect to it.
Specifically, it is claimed that Salvatore made "atrocious verbal and physical outbursts of violence" during the trial which "must have antagonized the jury" against him and all of the co-defendants so as to make it impossible, or strongly unlikely, that the jury would give fair and unprejudicial consideration to defendants' guilt or innocence. Overlooking their own contemptuous conduct before the jury, petitioners assert that Salvatore's conduct was particularly prejudicial to them because he was closely identified with his brother, Carmine Panico, and because some of Salvatore's outbursts accused DiPietro of being a "convicted dope pusher." Scaling down the claim of raging insanity made at trial, they argue that Salvatore, if not a raving maniac, was at least in the grip of emotional forces of a psychotic nature which made his conduct and outbursts uncontrollable. They contend that the trial court should have conducted further psychiatric hearings and have granted defendants' motions for a severance, even if Salvatore were found sane, in order to insure against prejudice to them. Finally, it is asserted that post-trial medical information concerning Salvatore, which first came to light after the sentencing of the defendants and which is now supplemented by an affidavit of a psychiatric consultant, shows that the trial judge erred in finding that Salvatore was mentally competent and that his acts were deliberate and calculated to disrupt the trial.
Thus, the entire thrust of the affidavits supporting this application is an attempt to show that due to a psychotic condition Salvatore was unable to control his conduct during the trial. All of these claims are irrelevant to the question of whether petitioners were denied a fair trial, and all were raised and rejected at trial and on direct appeal. We, therefore, reject them here. We turn now to the facts.
This application cannot be understood in the vacuum portrayed by petitioners. Rather, a realistic approach demands that Salvatore's conduct during trial be viewed not in isolation, but in the context of the entire trial.
Petitioners were two of twenty-nine defendants accused of violating the federal narcotics laws. They were tried for the second time with twelve co-defendants, and all but one were convicted.
The second trial, which lasted ten weeks, had been preceded a year earlier by a trial which had crawled "along its rocky road for six months over every conceivable type of obstruction and interruption" before ending in a mistrial on the eve of summations when "the foreman of the jury broke his back in an unexplained fall down a flight of stairs in an abandoned building in the middle of the night."
The first trial was so "bedeviled by frequent delays" and "impeded by apparent illness, accident and other misfortune"
that the trial judge, to insure defendants' continued presence, ordered their remand. Upon appeal from that order, the Court of Appeals, after tallying an array of incidents, remarked that the "trial judge may well have detected a general pattern of conduct not attributable to less than all of the defendants."
Two of the defendants were held in contempt at the conclusion of the first trial, and the contempts were affirmed on appeal.
Between trials, the defendants were enlarged on bail. The case appeared on the trial calendar monthly but was adjourned on each occasion because a number of defendants claimed they were unable to retain counsel, notwithstanding their ability to raise substantial bail. As early as July 31, 1961, Judge Murphy noted that the failure to retain counsel was part of a plan to postpone trial. Despite efforts of the court, including threats of contempt proceedings, it was not until March 9, 1962 that all defendants who had not been severed on government motion had counsel, either retained or appointed by the court.
At a pretrial conference held in March, the trial date for the second trial was set peremptorily for April 2, 1962. Despite that, on the appointed day, one defense counsel had a recurrence of a chronic heart condition, there were numerous switches and substitutions of counsel, and the Panicos' counsel, Mr. Aronne, although retained on September 6, 1961, was engaged in another trial which was expected to last for one week. The court denied applications for adjournment and assigned George Todaro, Esq., who had been through the first trial, to represent the Panicos and the defendant Loicano. During the empanelling of the jury, Salvatore made his first outburst. It was echoed a few minutes later by defendant Loicano.
Two days later, on April 4, the court found it necessary to remand all of the defendants. The remand was affirmed by the Court of Appeals which stated that the incidents on which we had relied "might well seem to indicate a renewal of the 'misadventures' of the previous trial * * *."
The problems were just beginning. Hardly a minute passed without a chorus of motions for mistrial, severance, etc. The court was swamped with applications for delay, continuance and adjournment. All of this prompted Judge Moore, on the basis of nothing but the cold record, to observe that: "One with a bent for statistics would find, no doubt, that if this trial were continued on every occasion that one or more of the defendants or their counsel so requested the trial would still be in progress."
Defendants resorted to every conceivable means to interrupt, delay and abort the trial, inject or provoke reversible error, or plant the seeds for collateral relief.
Certain defense counsel were repeatedly and inexcusably tardy. Throughout the trial, defendants and certain defense counsel claimed numerous incapacitating illnesses and injuries which physical examinations failed to substantiate. Several defendants claimed inability to understand the proceedings and consult with counsel due to aspirin-like medication administered by prison medical personnel. Five (out of fourteen) defendants, including Salvatore, claimed insanity and applied for psychiatric examinations. Verbal outbursts were commonplace. On one occasion, defendant Ormento tried to break into the robing room, screaming obscenities at the judge. On another, defendant Mirra, stealing Salvatore's line, shouted, "they are all dope pushers," when asked on the stand if he knew certain co-defendants. The next morning, while under cross-examination, Mirra picked up the witness chair and threw it at the Assistant United States Attorney. The chair missed the Assistant but struck and shattered against the jury box. Petitioner Carmine Panico screamed obscenities at the court and prosecutor. Petitioner DiPietro threatened to strangle Salvatore. Referring to such misconduct, the Court of Appeals said:
"We have described only two of the more dramatic disturbances which plagued the trial of this case for we find it neither necessary nor judicious to publicize or preserve the vile language and rebellious conduct that characterized this trial. Suffice it to say that more abhorrent conduct in a federal court and before a federal judge would be difficult to conceive."
The courtroom antics were interspersed with offstage acts by defendants and certain of their counsel which always interrupted and delayed the trial. The actions of the trial court, so righteously protested by petitioners, were actually forced and necessary responses to the unprecedented efforts of the defendants, including both petitioners, to thwart a fair, orderly and completed trial.
In order to keep order and prevent a frustration of justice, we were compelled, among other things, to station a large number of marshals in the courtroom, search spectators, and have both Panicos and Mirra gagged and shackled during the latter part of the trial. Reviewing these measures, the Court of Appeals said:
"If any one distinct impression is gained from a scrutiny of the record here, it is that the trial judge was justified, indeed was forced, to resort to stern measures to obtain order in his courtroom."
On defendant Galante's application for bail, the Court of Appeals held that this misconduct demonstrated "a concerted effort to interfere with the judicial process * * *."
That conclusion was shared by nine different appellate judges who, in one context or another, have reviewed the conduct of the defendants at either or both of their trials.
Referring to that conduct, the Court of Appeals said:
"We have satisfied ourselves that the prosecution did not provoke the incidents. The judge did all in his power to minimize their effect, and we find no ground for reversal in the circumstances. Any other answer to these contentions would produce little less than anarchy.
Law enforcement and fair trial for those accused of violations is not to be limited to the pattern chosen by defendants. The administration of criminal justice in the federal courts will not be delivered into the hands of those who could gain only from its subversion. Our decision in Aviles is as applicable to a trial of two defendants as it is to a trial of fourteen. It may take two to conspire but it takes only one to throw a chair at a prosecutor.
In view of the unprecedented tactics employed to impede the continuance and resolution of this trial, we find that the actions and rulings of the trial judge were reasonable and often necessary to prevent the frustration of justice."
At the end of the trial, we held eleven defendants, including both petitioners, in contempt for their misconduct. Most of the contempts were clear and the sentences short, resulting in expeditious appeals.
All convictions, except Salvatore's, were either dismissed as moot or affirmed on July 20, 1962.
Decision as to Salvatore was reserved, however, until September 14, 1962, when his conviction was affirmed, Judge Friendly dissenting. The Supreme Court, Mr. Justices Clark and Harlan dissenting, reversed Salvatore's contempt conviction and remanded it for a plenary hearing on the issue of his competence to form the requisite criminal intent.
The confines of this opinion preclude even an outline of the machinations that fill nearly 10,000 pages of transcript and more than 500 exhibits, including over 200 court exhibits, produced on this ten-week trial. We think, however, that the above summary demonstrates why the issues raised here cannot be resolved without regard to the context of the entire trial and appellate proceedings.
The allegedly insane trial conduct of Salvatore, post-conviction psychiatric data respecting him, and the Supreme Court's reversal of his summary contempt conviction for a hearing on his capacity to form a criminal intent form the basis of petitioners' claims.
Before detailing Salvatore's trial conduct, we note that most of the conduct portrayed in the supporting affidavits occurred in the absence of the jury. Petitioners also view Salvatore's conduct in a vacuum out of the context of the parallel conduct of ten of his co-defendants, including petitioners, and the popularity of the insanity claim during trial.
We turn now to the particular facts.
As noted earlier, on the morning of trial, the Panicos' counsel, Mr. Aronne, although retained on September 6, 1961, was engaged in another trial which was expected to last for one week (Tr. 598). Applications for still further adjournments were denied. Over the Panicos' objection, the court assigned George Todaro, Esq., who had been through the first trial, to represent them and defendant Loicano until their retained counsel returned or they obtained other counsel (Tr. 598, 604-616).
We directed the prosecution not to put in evidence directly relating to the Panicos or Loicano until their retained counsel returned. The prosecution obeyed.
While the jury was being empanelled, Salvatore started the torrent of disruptive outbursts which plagued the trial. He shouted:
"Do these people know I don't have a lawyer? What is this, Russia? There's nobody representing me here." (Tr. 58-59.)
A few minutes later, referring to Mr. Todaro, he shouted:
"I don't want to talk to him. I am not going to talk to him, I paid a lawyer. I won't talk to you." (Tr. 123.)
The court specifically instructed the panel of veniremen to disregard both outbursts and not to draw any inference against any defendant. We also talked with both Panicos out of the presence of the jury and in the presence of their assigned counsel. At that point, Salvatore calmly and coherently insisted that he did not wish to be represented by Mr. Todaro but was eager instead to continue with Mr. Aronne (Tr. 189-193a).
We explained that Mr. Todaro was an able and experienced lawyer familiar with the case, that Mr. Aronne would return by the end of the week, and that the vital stage of the case would not be reached until then.
Except for the two incidents mentioned, there were no further disturbances by Salvatore in the presence of the jury until sixteen days later, on the morning of April 18, when he simply advised the court that his lawyer, Mr. Aronne, had arrived in court (Tr. 1937). There was then no further misbehavior by him in the presence of the jury for over a month. Then, on the afternoon of Wednesday, May 23, 1962, after a brief recess, just as the judge entered the courtroom, he stepped into the jury box, walked along the inside of the rail, pushed the jurors in the front row, and screamed:
"Get out of here. The Judge has got me guilty. Big John, Joe B, they are the junk pushers. We're innocent. My brother and I, we haven't got anything to do with this thing. They have me in jail already. Do you understand me? They have us in jail for nothing. They got us in jail. Twenty years they want to give me.
THE COURT: (To the deputy marshals) Take him out of here.
DEFENDANT SALVATORE PANICO: Twenty years, for nothing. Ruined for life. For what? Ruined for life. For what?" (Tr. 5638.)
The marshals removed Salvatore from the courtroom and, then, not to be outdone, petitioner Carmine Panico chimed in:
"I want to see my brother.
THE COURT: Carmine Panico, you may go back in here (pointing to the cell block behind the courtroom) and see him when he calms down.
DEFENDANT CARMINE PANICO: ([* * * To the Court]) You think that he's all right. What you're doing, it is a shame, it ain't fair, to allow a frame. A lousy bum like that. [* * * Pointing to the Court.] A shame in your heart that you stand up there near the flag which I served for.
THE COURT: (To the deputy marshals) Take him in back [the cell block].
DEFENDANT CARMINE PANICO: [* * * Pointing to Court and Prosecutor] It is a dirty shame what you are doing, to ruin ...