Waterman, Moore and Friendly, Circuit Judges.
Carmine Panico (Carmine) and Carlie DiPietro appeal from an order of the District Court for the Southern District of New York, Lloyd F. MacMahon, Judge, entered on September 19, 1968, which denied their joint motions for relief under 28 U.S.C. § 2255. The order also denied a joint motion for disqualification of the sentencing judge because he was, they assert, a material witness. The basis of appellants' contentions here is that they were denied a fair trial because of jury prejudice created by the outrageous behavior of a co-defendant, Salvatore Panico (Salvatore) -- the brother of Carmine -- who was allegedly in the grip of uncontrollable psychological forces at the time. Specifically, ignoring their own repeated misconduct at the trial, appellants claim that Salvatore's "atrocious verbal and physical outbursts of violence" during the trial "must have antagonized the jury" not only against Salvatore but also against all the co-defendants, thereby making it impossible for the jury to give a fair and unprejudiced consideration to appellants' guilt or innocence. The appellants assert that there has not been an adequate adjudication of Salvatore's medical condition and that a hearing should have been held on this application on the cause of his misbehavior.
The appellants, along with eleven other co-defendants, were convicted on July 10, 1962, after a lengthy and difficult trial, of a substantial narcotics conspiracy. The trial lasted some ten weeks and was repeatedly interrupted by outbursts from the appellants, Salvatore and other co-defendants, who shouted obscenities at the trial court, the jury and the prosecutor, and, in the hope of provoking or creating a reversible error, generally attempted to disrupt the trial in every way possible. The incidents which occurred at trial are set forth in detail in our prior opinion on direct review of appellants' convictions, United States v. Bentvena, 319 F.2d 916 (2d Cir. 1963), and accordingly a short summary will suffice so that this present appeal is not viewed in isolation.
A first trial before Judge Levet, which lasted six months and wound its way "over every conceivable type of obstruction and interruption," resulted in a mistrial on the eve of the summations when the foreman of the jury broke his back in an unexplained fall down a flight of stairs in a deserted building late at night and there were no alternate jurors remaining to replace him. Because of continual and frequent delays and apparent illnesses, Judge Levet found it necessary to remand all the defendants who were out on bail. This order was affirmed on appeal. United States v. Bentvena, 288 F.2d 442 (2d Cir. 1961). The two defendants were held in contempt at the conclusion of the trial and these decisions were affirmed on appeal. United States v. Galante, 298 F.2d 72, 100 A.L.R.2d 431 (2d Cir. 1962).
Between the first and second trials, the defendants were again freed on bail. After continuous delays, during which some defendants claimed that they could not engage counsel although they had no problem raising substantial bail, trial was set for April 2, 1962. During the empaneling of the jury, Salvatore made his first outburst, which was echoed by co-defendant Loicano. The Court later found it necessary to remand all the defendants, which order was affirmed by this Court. United States v. DiPietro, 302 F.2d 612 (2d Cir. 1962). A renewal of the misadventures of the previous trial seemed imminent, as this Court remarked at the time.
The prediction proved accurate. The trial court was besieged with numerous motions for mistrial, severance, delay, continuance and adjournment, which were denied, renewed and denied again. Certain defense counsel were repeatedly and inexcusably tardy. Throughout the trial there were constant claims by the defendants and some counsel of numerous incapacitating illnesses and injuries, all of which failed to be confirmed by physical examination. Five of the fourteen defendants, including Salvatore, claimed insanity. Verbal outbursts were commonplace. Under cross examination, a co-defendant Mirra threw his chair at the Assistant United States Attorney, but his aim was poor. Appellant Carmine shouted obscenities at the trial court and the prosecutor.
There were many more acts of misconduct requiring the Court to station a large number of marshals in the courtroom, to search spectators and to have both Panicos and Mirra gagged and shackled during the latter part of the trial. See discussion infra. It is sufficient to say at this point that there was a concerted effort to interfere with the judicial process. We have previously indicated that "more abhorrent conduct in a federal court and before a federal judge would be difficult to conceive." 319 F.2d at 930. At the conclusion of the second trial, eleven defendants were summarily held in contempt for their misconduct, including Salvatore.
THE SECTION 2255 APPLICATION
The appellants' application for relief under Section 2255 was denied by the trial court on the grounds that the claim of prejudice had already been litigated at trial, denied and the denial affirmed on appeal and that the cause of Salvatore's outrageous conduct was irrelevant, or at most only incidental, to the problem of whether the trial court had taken adequate measures to assure that appellants received a fair trial. The Court also rejected appellants' claim 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, was new or that it shows that the trial judge erred in finding that Salvatore's acts were deliberate and calculated to disrupt the trial.
The court below first noted that most of the outbursts portrayed in the appellants' supporting affidavits occurred in the absence of the jury and then detailed Salvatore's conduct which took place before the jury. We will summarize them briefly. Salvatore first made an outburst because he was assigned counsel at the commencement of the trial to serve until his retained counsel returned later in the week from another trial. He shouted to the jurors then being empaneled:
Do these people know I don't have a lawyer? What is this, Russia? There's nobody representing me here.
He was, in fact, then being represented by his temporarily assigned counsel who had represented him very capably during the first trial. Salvatore refused to talk to him, however. No significant disturbances followed for nearly seven weeks, but on May 23, 1962 after a brief recess, at the moment the trial judge entered the courtroom, Salvatore jumped into the jury box and, walking along the inside railing and waiving his arms in the air, shouted at the jurors:
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? ...