Mirra v. United States

• Decision Date: 27 June 1967
• Docket Number: Docket 30795.,No. 364,364
• Citation: 379 F.2d 782
• Parties: Anthony MIRRA, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

379 F.2d 782 (1967)

Anthony MIRRA, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 364, Docket 30795.

United States Court of Appeals Second Circuit.

Argued March 9, 1967.

Decided June 27, 1967.

Jerome Lewis, Brooklyn, N. Y., for petitioner-appellant.

Michael W. Mitchell, Asst. U. S. Atty., Southern District of New York (Robert M. Morgenthau, U. S. Atty., and Otto G. Obermaier, Asst. U. S. Atty., on the brief), for respondent-appellee.

Before LUMBARD, Chief Judge, and WATERMAN and SMITH, Circuit Judges.

J. JOSEPH SMITH, Circuit Judge:

Anthony Mirra, confined under a 20-year sentence after trial to the jury on a charge of narcotics conspiracy, judgment affirmed in United States v. Bentvena, 319 F.2d 916 (2d Cir.), cert. denied Ormento v. U. S., Di Pietro v. U. S., Fernandez v. U. S., Panico v. U. S., Galante v. U. S., Lociano v. U. S., Mancino v. U. S., Sciremammano v. U. S., Mirra v. U. S., 375 U.S. 940, 84 S.Ct. 345, 346, 353, 355, 360, 11 L.Ed.2d 271, 272 (1963), moved under 28 U.S.C. § 2255 to vacate the sentence on the ground that on an occasion during the trial Mirra had been mentally incompetent to understand the proceedings against him and to assist counsel in his own defense. He also moved in the § 2255 proceeding to disqualify the trial judge, Hon. Lloyd F. MacMahon. The motions were denied without hearing and Mirra appeals. We find no error in either ruling and affirm the judgment.

The incident on which Mirra's claims are based occurred during his second trial. The history of the proceedings up to that point may be culled from reports of the various appeals to date. During the first trial, before Levet, J., and a jury, Judge Levet found it necessary to remand the defendants. This court affirmed the order, describing the circumstances as follows, 288 F.2d 442, 445-446 (2d Cir. 1960):

"We also hold that under all the circumstances of the case, especially a succession of misadventures which have already caused numerous delays and adjournments in the presentation of the evidence, the order of the trial judge was a proper exercise of discretion for the purpose of ensuring the orderly completion of the trial.

"From its inception the trial has been bedeviled by frequent delays.

Commenced on November 21 rather than November 14 because of the disappearance of a defendant (Angelo Tuminaro) still a fugitive, it was thereafter impeded by apparent illness, accident and other misfortune.

"John Ormento became ill Tuesday, December 6. The trial halted at 2:30 in the afternoon and did not resume until Friday, December 9. On Wednesday, December 14, David Petillo found himself unwell and was threupon transferred to Bellevue where a preliminary diagnosis of cardiac insufficiency was made. After hearing conflicting medical testimony, the trial judge granted a further adjournment. Tests subsequently established that Petillo was not suffering from heart disease.

"The trial was then scheduled to resume Thursday, December 22. On that day, after a motion for mistrial (grounded on prejudice to all the defendants by the prior delays) had been denied, it was found impossible to continue because one of the defendants (Sancinella) was not present. The defaulter appeared that evening and was remanded. On Tuesday, December 27, the court was informed that counsel for Sancinella was suffering from an incapacitating illness. Sancinella was thereupon directed to retain new counsel, or accept court-appointed counsel, and to familiarize said counsel with the facts of the case. Because of this and the death of a juror\'s brother, the trial was then adjourned to January 3, 1961. On January 3, Sancinella indicated an inability to procure other counsel; the court therefore assigned him Albert Krieger, Esq., counsel for the defendant Gellman. Sancinella refused, however, to accept or confer with any counsel other than the still incapacitated attorney who had represented him at the outset. In consequence, the trial judge granted Sancinella a mistrial and severance.

"Reports that William Bentvena was ill forced suspension of proceedings on Friday, January 13.

"On Wednesday, January 25, the court was informed that the defendant, Struzzieri, had been injured in an automobile accident which had occurred at about 3:30 A.M. that morning. Investigation by the government revealed that the car with which Struzzieri had collided was driven by one Franzione, a man possessed of an extensive criminal record and despite his denials, apparently well acquainted with Struzzieri. On January 27, the physician in charge of Struzzieri at Queens General Hospital informed the court that Struzzieri could be discharged from the hospital the following day. Disagreement as to the possibility that Struzzieri might be suffering from a subdural hematoma, resulted in extended hearings at which medical testimony was presented by a court-appointed neuro-surgeon, a resident at the hospital, and a neurologist retained by Struzzieri. The defendant\'s neurologist testified that Struzzieri\'s condition demanded a diagnosis of `subdural suspect\'; he urged a spinal tap to clarify the matter. The court-appointed physician thereupon re-examined the patient and reported that he was convinced beyond a reasonable doubt that Struzzieri did not have a subdural hematoma, was malingering, and was able to stand trial. Struzzieri subsequently refused to permit a spinal tap.

"To the date of remand there had been precisely 25 Trial days; 6 in November, 6½ in December, 12½ in January. The government had not yet finished putting in its case.

"At the trial\'s commencement on November 21, the court selected four alternate jurors. By January 30 two jurors had been excused leaving only two alternates for further emergencies, little enough insurance for a long trial in the middle of a severe winter.

"Before remanding appellants, the trial judge, out of the presence of the jury, considered the substantial facts in the development of the case and concluded:

`I am unable to discriminate between the defendants. I realize that counsel may be to some extent inconvenienced. However, in order to assure the presence of the defendants at the trial I am, I believe, after balancing the situation, constrained to * * * direct the remand of all defendants now on bail.\' Record 5822-23.

The court then undertook to make arrangements so that counsel might suitably confer with their clients."

Later in the first trial, Mirra refused to obey an order of the court to be quiet and sit down, which resulted in a 20-day contempt sentence following mistrial in the case, affirmed sub nom. United States v. Galante, 298 F.2d 72 (2d Cir. 1962).

In the second trial before Judge MacMahon and a jury, defendants were again remanded by order affirmed United States v. DiPietro, 302 F.2d 612 (2d Cir. 1962). Thereafter, the incident on which the present proceeding is based resulted in another contempt sentence for Mirra, affirmed per curiam 304 F.2d 883 (2d Cir.), cert. denied 371 U.S. 927, 83 S.Ct. 296, 9 L.Ed.2d 234 (1962). The narcotics conviction of Mirra in the principal case was affirmed, 319 F.2d 916 (2d Cir.), cert. denied 375 U.S. 940, 84 S.Ct. 360, 11 L.Ed.2d 272. This court's opinion briefly reviewed some of the trial incidents. 319 F.2d 916, at 929-930:

"The first trial of this indictment began on November 21, 1960, after a number of delays, including a one-week postponement occasioned by the flight of the defendant Tuminaro on the eve of trial. It proceeded along its rocky road for six months over every conceivable type of obstruction and interruption. On May 15, 1961, the eve of summations, it ground to a halt after 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. No alternate jurors (four had been originally empanelled) remained and a mistrial was declared. As this court has already had occasion to consider the misadventures in the first trial and the misconduct of the defendants which resulted in their remand and in contempt actions against some of them, they will not be fully catalogued here.

"At the conclusion of the first trial, the defendants were enlarged on bail and, with the court\'s permission, various attorneys from the first trial were discharged from their representations. The case appeared at regular monthly intervals on the trial calendar beginning June 19, 1961. On each occasion it was adjourned because a number of the defendants said that they had been unable to retain counsel notwithstanding their ability to raise substantial bail. As early as July 31, 1961, Judge Murphy sensed `that the failure to retain counsel was part of a plan to postpone trial.\' Despite efforts of the court and threats of contempt proceedings, it was not until March 9, 1962, that all defendants who had not been severed on the government\'s motion had counsel, either retained or appointed by the court. After further delays and substitutions of counsel (to be treated more fully below), the trial began on April 2.

"During the polling of jurors in this opening day of trial, the first outburst by Salvatore Panico occurred. This incident was a precursor of events to come. Similar outbursts by Panico and other defendants became commonplace. On one occasion Panico climbed into the jury box, walked along the inside of the rail from one end of the box to the other, pushing the jurors in the front row and screaming vilifications at them, the judge, and the other defendants. On another occasion, while the defendant Mirra was being cross-examined by the Assistant United States Attorney, Mirra picked up the witness chair and hurled it at the Assistant. The chair narrowly missed its target but struck the jury box and shattered. The trial judge responded to these outbursts by having the perpetrators gagged and shackled. We have described only two of the more dramatic disturbances which plagued the trial of this case for

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