Before Friendly, Chief Judge, Oakes, Circuit Judge, and Davis, Judge.*fn*
Following a six day trial before a jury and Judge Cooper in the Southern District of New York, appellant, Coye Boatner, was convicted of one count of possession of counterfeit money in violation of 18 U.S.C. § 472 and sentenced to three years' imprisonment. His principal claim on this appeal, one which is heard frequently, see, e.g., United States v. Nazzaro, 472 F.2d 302 (2d Cir. 1973); United States v. Pellegrino, 470 F.2d 1205 (2d Cir. 1972), cert. denied, 411 U.S. 918, 93 S. Ct. 1556, 36 L. Ed. 2d 310 (1973); United States v. Dellinger, 472 F.2d 340, 385-391 (7th Cir. 1972), cert. denied, 410 U.S. 970, 93 S. Ct. 1443, 35 L. Ed. 2d 706 (1973), is that the trial judge's "disparagement" and "intimidation" of defense counsel denied appellant a fair trial.
A brief recital of the evidence introduced at trial will help put appellant's contention in perspective. The Government's proof established that in June, 1971, appellant received $700 in counterfeit bills in the Bronx from a convicted counterfeiter, one Goodson, who was the principal witness against appellant at trial. It also established that at a hamburger stand in New Orleans appellant had passed a phony $10 bill made from Goodson's plates and negatives. The defense's contention was that the Bronx transfer never occurred and that appellant had inadvertently passed the phony $10 bill in New Orleans after receiving it from his girl friend, who in turn had received it from Goodson. The defense claimed that Goodson lied because he sought revenge against appellant for his previous testimony before a grand jury which led to Goodson's indictment and ultimate prison term on a counterfeiting charge. The jury, however, apparently rejected appellant's version of events and credited the Government's case.
The trial began amicably enough, with the judge telling the jury that "[both] lawyers on both sides have the respect of the Judge, they are fine, upright accredible [sic] members of the Bar, and we are proud of them, they are fighting, as they should, for their respective sides...." Soon, however, interaction between the trial court and defense counsel, a former Assistant United States Attorney, developed unmistakable overtones of hostility and acrimony. The flames of hostility that were later to blaze were apparently initially sparked by defense counsel's delay in making certain suppression motions until the day of jury impaneling. They were fueled by defense counsel's omission, despite his knowing that the trial was set to begin at 10:00 a.m., to inform the court he had another court appearance that would prevent his being in court at that time. Defense counsel did not appear in the courtroom until 10:20 a.m. on the day that the trial was to begin, and trial did not begin until 10:55 a.m. Hostility between court and counsel first burned openly in an exchange begun by what the trial court believed were defense counsel's unwarranted interruptions of Goodson's testimony on cross-examination after counsel had asked Goodson to "[tell] me everything" about a particular happening. The trial court reacted strongly to defense counsel's argument with the court's sustaining of the prosecution's objection on the point. Before the jury, after the Government's objection, the court said, "You are right. Please continue." Defense counsel replied, "I disagree. I don't think he is right." This exchange ensued:
The Court: I will not take any impudence.
Mr. Gold: I am not being impudent.
The Court: Don't do that.
Mr. Gold: I am not doing anything, if it please your honor.
The Court: Excuse the jury.
In the absence of the jury the court then expressed displeasure with the whole course of defense counsel's behavior up to that point in strong terms and at some length. He then asked defense counsel and the Government for comments, which too were at some length. When defense counsel moved for a mistrial, the following interchange occurred:
Mr. Gold: Perhaps your honor would want to relieve me and declare a ...