Appeal by Louis Charles King from an order of the United States District Court for the Northern District of New York (MacMahon, D.J., of the Southern District of New York, sitting by designation) filed July 29, 1977, which denied a motion by King under 28 U.S.C. § 2255 to vacate a sentence imposed on him on May 25, 1973, after conviction by a jury on all counts of a seven count indictment charging King and others with making extortionate extensions of credit (18 U.S.C. § 892(a)), using extortionate means to collect extensions of credit (18 U.S.C. § 894(a)(1)), and conspiring to use such extortionate means to collect (18 U.S.C. § 894(a)).
Feinberg and Oakes, Circuit Judges, and Wyatt, District Judge.*fn*
This appeal raises several questions concerning the conduct of a criminal jury trial at Utica in late February and early March, 1973. Appellant King and three co-defendants were on March 1, 1973, found guilty by the jury of violations of sections of Title II of the Consumer Credit Protection Act (18 U.S.C. §§ 891 and following; sometimes referred to as prohibiting "loan sharking" activities). Judge Lloyd F. MacMahon of the Southern District of New York presided at the trial, sitting by designation.
King, the appellant, moved in January, 1977, in the court below under 28 U.S.C. § 2255 to vacate the sentence imposed upon him by Judge MacMahon on May 25, 1973. He also moved at the same time for several types of what was called "interim relief", including that Judge MacMahon disqualify himself (movant cited in this connection 28 U.S.C. §§ 144 and 455).
By order with opinion filed July 29, 1977, Judge MacMahon refused to disqualify himself and denied the motion in all other respects.
This appeal followed. In addition to questions concerning the conduct of the trial, the appeal is directed to the refusal of Judge MacMahon to disqualify himself.
We affirm the order from which the appeal is taken.
On January 18, 1973, a grand jury in the Northern District of New York handed up an indictment (73 Cr. 9) charging King and four others in seven counts with violations of 18 U.S.C. § 892(a) and 18 U.S.C. § 894. Six of the counts charged substantive offenses and the seventh charged a conspiracy to violate 18 U.S.C. § 894. One of the co-defendants (Marrone) was thereafter severed.
Trial of King and three co-defendants began on Tuesday, February 20, 1973. At the beginning, a motion by the government to sequester the jury was granted. After the jury was selected, it was put in the charge of United States Marshals and lodged at the Ramada Inn.
The trial judge, on the first day of taking evidence, gave a strong admonition to the jury not to listen to anything about the case on the radio nor to watch anything about it on television, nor to read anything about it in newspapers. He advised the jurors that disregard of those directions would be punished as a contempt of court, would have serious consequences. Tr. 207-208. The substance of this admonition was repeated by the Court to the jury at least seven times during the trial. Tr. 477-78, 595, 654, 742, 814, 859, 961.
The trial was recessed on Friday afternoon, February 23.
On Saturday evening, February 24, at about 8 o'clock King in an automobile went to the house of Kelly, agent in charge of the FBI office in Utica. King got out of the car, walked to a front window, punched out the window and threw into the house a hand grenade. Apparently the FBI had some advance warning of the deed and Kelly with his family had been evacuated. Fortunately also the grenade did not explode. There were FBI agents and police officers in the area and after the grenade was thrown there was an exchange of shots while King was running back to his car. He may have been wounded but managed to drive the car away. About fifteen minutes later, officers and agents found King and the car a few miles away in the parking lot of the Ramada Inn, the very place where the jury had been sequestered. Why King went to the Ramada Inn is not made to appear. In any event, there was a further exchange of shots in the parking lot and King was very seriously wounded. According to one of the newspaper accounts (App. 141), another grenade (a "destructive device" as defined in the National Firearms Act (26 U.S.C. § 5845(f))), was found on or near King's person. King was taken by ambulance to a nearby hospital, St. Luke's Memorial Center. There was extensive publicity about the incident.
When the trial resumed on Monday morning, February 26, counsel for King moved for a mistrial, advising the Court that King might not be out of the hospital for two months. The Court denied the motion, stating that the trial would proceed in King's absence since his absence was the result of his own misconduct, amounting to a voluntary waiver of his right to be present at the trial. Counsel for King then asked that the jury be questioned to see if the members had learned anything about the shooting incident. The Court denied this request on the ground that the jury had been sequestered, that all telephone calls of the jurors had been screened, and that the Court had directed that the jurors could not read newspaper accounts and could not listen to or see radio and television reports. Counsel for King then moved that the trial be conducted in the hospital in the presence of King. This motion was denied as not feasible. King's counsel then moved that King be allowed to testify in the hospital in his own defense. On this motion, decision was reserved. Later, the motion was granted.
Trial resumed before the jury on Monday morning, February 26, and shortly before the luncheon recess the government rested its case.
On Tuesday, February 27, the trial was moved to an auditorium in the hospital. The surgeon attending King testified to the Court, outside the presence of the jury, as to King's physical condition. The Court looked at King in his room to satisfy himself that his appearance would not prejudice him with the jury. King was then moved to the auditorium and testified in his defense. At its conclusion, the Court gave the already described admonition to the jury, adding that they were not to speculate about King being in the hospital. "Suffice it to say over the weekend he was injured" (Tr. 859).
Trial resumed in the Courthouse that same day and summations began.
On Wednesday, February 28, the case was given to the jury.
On Thursday, March 1, the jury returned a verdict finding King and the other defendants guilty on all counts as charged. King then moved for judgment of acquittal and for a new trial, asserting very many of the grounds now urged on this appeal five years later. The motion was in all respects denied. During the argument of the motion, counsel for King expressed disbelief that King had in fact thrown a grenade into Kelly's house and then, to avoid shots and apprehension, had run away. Thereupon, the Court decided to have a hearing to establish the facts. An FBI agent testified to the incident at Kelly's house, counsel for King declined to cross-examine and declined to produce any evidence. The Court found the facts to be as related hereinabove. The Court rejected the absence of defendant as any reason for having delayed the trial, citing Illinois v. Allen, 397 U.S. 337, 25 L. Ed. 2d 353, 90 S. Ct. 1057 (1970), as having established the principle that absence from a trial caused by misconduct of a defendant is a voluntary waiver of the right to be present at the trial.
On May 25, 1973, sentence was imposed by Judge MacMahon on King. He was fined $10,000 on each of the seven counts on which he was convicted and imprisoned for twenty years on each count, ...