The opinion of the court was delivered by: MACMAHON
MacMAHON, District Judge.*
Petitioner, Louis Charles King, and three codefendants were convicted, following a jury verdict on March 1, 1973, of making extortionate extensions of credit and using extortionate means to collect extensions of credit, in violation of 18 U.S.C. §§ 892 and 894. Their convictions were affirmed without opinion, United States v. King, 486 F.2d 1397 (2d Cir. 1973), and certiorari was denied, 416 U.S. 958, 94 S. Ct. 1974, 40 L. Ed. 2d 309 (1974).
The files and records of this case conclusively show the following facts and demonstrate that the actual facts are materially different from the hearsay, conclusory, speculative, spurious and distorted version set forth in the petition.
As a result of an extensive investigation into loan sharking, conducted by the Utica office of the Federal Bureau of Investigation ("FBI") under the direction of Special Agent Louis Kelly, Senior Resident Agent, petitioner King and three co-defendants were indicted on charges of making extortionate extensions of credit and using extortionate means to collect extensions of credit, in violation of 18 U.S.C. §§ 892 and 894.
Trial of the action began at Utica on February 20, 1973, and all defendants remained free on bail. At the outset, the government moved to sequester the jury, based upon a showing that sequestration was necessary to insulate the jury from anticipated prejudicial publicity and because petitioner King had made threats on the life of an FBI agent; there were plots to kill the principal witness (the victim of the loan sharking) and one of the defense attorneys, to bribe a judge and jurors, and to engage in other criminal acts, including subornation of perjury and obstruction of the trial.
The trial proceeded for three days without any extraordinary incident, but during the weekend recess, late on Saturday night, February 24, 1973, an automobile stopped in front of Agent Kelly's home; King got out, walked across the front lawn, smashed the front window and deliberately threw a hand grenade into Kelly's living room. There was a flash, and King ran toward the automobile. Agents or police officers, on the scene guarding Kelly's home, exchanged shots. King was wounded but managed to get back into the automobile and escape. Followed, he was found some minutes later in the parking lot of the Ramada Inn, several miles away, where the jury had been sequestered since the beginning of the trial. Again, shots were exchanged; King was seriously injured and was taken to nearby St. Luke's Hospital. Another explosive device was found on his person before he was taken to the hospital.
The jury ultimately convicted King and his co-defendants on the loan sharking charges. King now petitions for habeas corpus relief under 28 U.S.C. § 2255, seeking to vacate his judgment of conviction and sentence and requesting various other forms of relief. He grounds his petition on allegations that (a) the jury was actually or possibly exposed to prejudicial publicity concerning the bombing and shooting incidents, and (b) the government agents used excessive force which deprived him of his constitutional right to be present at the trial. We deny the petition.
When court reconvened on Monday morning, defense counsel and the Assistant United States Attorney reiterated the substance of the events of Saturday night. All defendants moved for a mistrial, and King's attorney also moved for severance, stating that the physician treating King had indicated it would be at least two months before King could appear in court. We denied the motions, made a tentative finding, on the basis of the attorneys' statements and subject to a subsequent evidentiary hearing, that King had voluntarily absented himself from the proceedings, and continued the trial in his absence. We also denied counsel's motion to voir dire the jury to determine whether they had learned of the events of Saturday.
The marshal in charge of the jury had been instructed from the outset of the trial to insulate the jury from all media publicity about the case and had assured us that our instructions in that regard had been followed. The marshal also assured us that the jury, sequestered on the opposite side of the motel from the parking lot where the shooting occurred, had not become personally aware of the fracas and had not seen or heard any publicity concerning it. The news media were, of course, aroused by the grenade-throwing and shooting incidents, and those events were widely publicized.
Counsel continued vigorously to represent King through the remaining phases of the trial. He stated that King wished to testify at the hospital in his own behalf.At counsel's request and in the presence of all counsel, we carefully interrogated King's attending physician, Dr. Millett, and visited King at his bedside to satisfy ourselves that he was able to testify and that there was nothing about King's appearance to shock or prejudice the jury. Satisfied that he could testify, we convened a special session of the court and jury in the hospital, where King testified from his bed. The jury was not told the reason for King's hospitalization; indeed, we specifically cautioned the jurors that they should not speculate as to the cause of his injuries.
The trial continued and was concluded, the jury deliberated for some thirteen hours and returned a verdict of guilty against all defendants on all counts. We denied counsel's motion for a new trial. Thereafter, we conducted an evidentiary hearing, at which an agent present at the grenade-throwing incident testified to the events already recounted. King and his co-defendants declined to present any evidence but rested on the government's proof. We again concluded that King had, through his own voluntary acts, started the foreseeable chain of events resulting in his hospitalization and consequent absence from the trial. Illinois v. Allen, 397 U.S. 337, 90 S. Ct. 1057, 25 L. Ed. 2d 353 (1970); Diaz v. United States, 223 U.S. 442, 445, 56 L. Ed. 500, 32 S. Ct. 250 (1912); United States v. Tortora, 464 F.2d 1202 (2d Cir. 1972).
We note that the incidents in question were not the first indications that efforts would be made to sabotage the trial. Although we were not originally inclined to undertake the extraordinary measure of sequestration, we concluded that sequestering the jury was appropriate for the reasons stated above and because King's attorney represented that he feared that Marrone, a severed co-defendant who would later testify at King's trial, would bring and use a gun in the courtroom.
Finally, we note that King later pled guilty to possession of the hand grenade, and throwing it through Kelly's window.
We consider First King's motion to disqualify the court from consideration of this petition. King relies on 28 U.S.C. § 144, providing for disqualification where the court is personally biased or prejudiced against a party, and on 28 U.S.C.§ 455, providing for disqualification where a judge may be a material witness in the proceeding. We find no cause under either section to warrant disqualification here.
Section 144 provides for disqualification of a judge whenever a party "makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party..." (emphasis added).While a judge ruling on a motion to disqualify must take as true the allegations of the affidavit, the mere filing of the affidavit does not automatically disqualify a judge, and the judge has the duty to pass upon the sufficiency of the affidavit. Berger v. United States, 255 U.S. 22, 65 L. Ed. 481, 41 S. Ct. 230 (1921). Such an affidavit will be deemed sufficient only if it gives "fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment." Id. at 33-34. The affidavit filed in this proceeding is plainly insufficient to support such a charge.
Ordinarily, an affidavit under § 144 must demonstrate a personal bias or prejudice stemming from an extra-judicial source. United States v. Grinnell Corp., 384 U.S. 563, 583, 16 L. Ed. 2d 778, 86 S. Ct. 1698 (1966). Opinions formed during the course of judicial proceedings, on the basis of evidence presented and conduct observed by the judge, are not the "personal" bias or prejudice required to disqualify. United States v. Sclafani, 487 F.2d 245, 255 (2d Cir. 1973); Mirra v. United States, 379 F.2d 782, 787-88 (2d Cir. 1967). King cites no extrajudicial, personal bias or prejudice against him.
King suggests that rulings adverse to him during the course of the trial present a "likelihood" that the court will not be able to assess objectively the allegations of the present petition. It is clear, however, that rulings adverse to a party are insufficient to establish judicial bias or prejudice. Ex parte American Steel Barrel Co., 230 U.S. 35, 43-44, 57 L. Ed. 1379, 33 S. Ct. 1007 (1913); United States v. Schwartz, 535 F.2d 160 (2d Cir. 1976).
King also suggests that the twenty-year sentence imposed by the court and the court's comments at the time of sentencing establish the bias or prejudice necessary to disqualify. We note, however, that King was convicted of seven counts, each carrying a twenty-year maximum sentence, and that the court's imposition of concurrent twenty-year terms for each count was well under the maximum ...