Panico v. United States, 68 Civ. 1542.
| Decision Date | 19 September 1968 |
| Docket Number | No. 68 Civ. 1542.,68 Civ. 1542. |
| Parties | Carmine PANICO and Carlie DiPietro, Movants, v. UNITED STATES of America, Respondent. |
| Court | U.S. District Court — Southern District of New York |
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Jerome Lewis, New York City, for movants.
Robert M. Morgenthau, U. S. Atty., Southern Dist. of New York (David A. Luttinger and Michael W. Leisure, Asst. U. S. Attys., Southern Dist. of New York, of counsel), for respondent.
Petitioners were two of thirteen defendants convicted by a jury after a ten-week trial of a conspiracy to import and distribute vast quantities of heroin in violation of the federal narcotics laws. They move under 28 U.S.C. § 2255 to vacate and set aside the judgments of conviction and the sentences imposed upon them on July 10, 1962. They also move to disqualify the trial court from considering their § 2255 application on the ground that the court "is of necessity a material witness."1 We deny the motions because the claims asserted are irrelevant to the issue of whether petitioners were denied a fair trial, they were raised and rejected at trial and on direct appeal,2 and they cannot be resurrected by the cumulative expert testimony proffered as new evidence.
The core of this application is a claim that petitioners were "denied a fair due process trial" because of allegedly insane conduct of a co-defendant, Salvatore Panico ("Salvatore"), during trial and rulings of the trial court with respect to it.
Specifically, it is claimed that Salvatore made "atrocious verbal and physical outbursts of violence" during the trial which "must have antagonized the jury" against him and all of the co-defendants so as to make it impossible, or strongly unlikely, that the jury would give fair and unprejudicial consideration to defendants' guilt or innocence. Overlooking their own contemptuous conduct before the jury, petitioners assert that Salvatore's conduct was particularly prejudicial to them because he was closely identified with his brother, Carmine Panico, and because some of Salvatore's outbursts accused DiPietro of being a "convicted dope pusher." Scaling down the claim of raging insanity made at trial, they argue that Salvatore, if not a raving maniac, was at least in the grip of emotional forces of a psychotic nature which made his conduct and outbursts uncontrollable. They contend that the trial court should have conducted further psychiatric hearings and have granted defendants' motions for a severance, even if Salvatore were found sane, in order to insure against prejudice to them. Finally, it is asserted 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, shows that the trial judge erred in finding that Salvatore was mentally competent and that his acts were deliberate and calculated to disrupt the trial.3 Thus, the entire thrust of the affidavits supporting this application is an attempt to show that due to a psychotic condition Salvatore was unable to control his conduct during the trial. All of these claims are irrelevant to the question of whether petitioners were denied a fair trial, and all were raised and rejected at trial and on direct appeal. We, therefore, reject them here. We turn now to the facts.
This application cannot be understood in the vacuum portrayed by petitioners. Rather, a realistic approach demands that Salvatore's conduct during trial be viewed not in isolation, but in the context of the entire trial.4 Petitioners were two of twenty-nine defendants accused of violating the federal narcotics laws. They were tried for the second time with twelve co-defendants, and all but one were convicted.
The second trial, which lasted ten weeks, had been preceded a year earlier by a trial which had crawled "along its rocky road for six months over every conceivable type of obstruction and interruption" before ending in a mistrial on the eve of summations when "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."5 The first trial was so "bedeviled by frequent delays" and "impeded by apparent illness, accident and other misfortune"6 that the trial judge, to insure defendants' continued presence, ordered their remand. Upon appeal from that order, the Court of Appeals, after tallying an array of incidents, remarked that the "trial judge may well have detected a general pattern of conduct not attributable to less than all of the defendants."7 Two of the defendants were held in contempt at the conclusion of the first trial, and the contempts were affirmed on appeal.8
Between trials, the defendants were enlarged on bail. The case appeared on the trial calendar monthly but was adjourned on each occasion because a number of defendants claimed they were unable to retain counsel, notwithstanding their ability to raise substantial bail. As early as July 31, 1961, Judge Murphy noted that the failure to retain counsel was part of a plan to postpone trial. Despite efforts of the court, including threats of contempt proceedings, it was not until March 9, 1962 that all defendants who had not been severed on government motion had counsel, either retained or appointed by the court.
At a pretrial conference held in March, the trial date for the second trial was set peremptorily for April 2, 1962. Despite that, on the appointed day, one defense counsel had a recurrence of a chronic heart condition, there were numerous switches and substitutions of counsel, and the Panicos' counsel, Mr. Aronne, although retained on September 6, 1961, was engaged in another trial which was expected to last for one week. The court denied applications for adjournment and assigned George Todaro, Esq., who had been through the first trial, to represent the Panicos and the defendant Loicano. During the empanelling of the jury, Salvatore made his first outburst. It was echoed a few minutes later by defendant Loicano.
Two days later, on April 4, the court found it necessary to remand all of the defendants. The remand was affirmed by the Court of Appeals which stated that the incidents on which we had relied "might well seem to indicate a renewal of the `misadventures' of the previous trial * * *."9 The problems were just beginning. Hardly a minute passed without a chorus of motions for mistrial, severance, etc. The court was swamped with applications for delay, continuance and adjournment. All of this prompted Judge Moore, on the basis of nothing but the cold record, to observe that: "One with a bent for statistics would find, no doubt, that if this trial were continued on every occasion that one or more of the defendants or their counsel so requested the trial would still be in progress."10 Defendants resorted to every conceivable means to interrupt, delay and abort the trial, inject or provoke reversible error, or plant the seeds for collateral relief.
Certain defense counsel were repeatedly and inexcusably tardy. Throughout the trial, defendants and certain defense counsel claimed numerous incapacitating illnesses and injuries which physical examinations failed to substantiate. Several defendants claimed inability to understand the proceedings and consult with counsel due to aspirin-like medication administered by prison medical personnel. Five (out of fourteen) defendants, including Salvatore, claimed insanity and applied for psychiatric examinations. Verbal outbursts were commonplace. On one occasion, defendant Ormento tried to break into the robing room, screaming obscenities at the judge. On another, defendant Mirra, stealing Salvatore's line, shouted, "they are all dope pushers," when asked on the stand if he knew certain co-defendants. The next morning, while under cross-examination, Mirra picked up the witness chair and threw it at the Assistant United States Attorney. The chair missed the Assistant but struck and shattered against the jury box. Petitioner Carmine Panico screamed obscenities at the court and prosecutor. Petitioner DiPietro threatened to strangle Salvatore. Referring to such misconduct, the Court of Appeals said:
11
The courtroom antics were interspersed with offstage acts by defendants and certain of their counsel which always interrupted and delayed the trial. The actions of the trial court, so righteously protested by petitioners, were actually forced and necessary responses to the unprecedented efforts of the defendants, including both petitioners, to thwart a fair, orderly and completed trial.12 In order to keep order and prevent a frustration of justice, we were compelled, among other things, to station a large number of marshals in the courtroom, search spectators, and have both Panicos and Mirra gagged and shackled during the latter part of the trial. Reviewing these measures, the Court of Appeals said:
"If any one distinct impression is gained from a scrutiny of the record here, it is that the trial judge was justified, indeed was forced, to resort to stern measures to obtain order in his courtroom."13
On defendant Galante's application for bail, the Court of Appeals held that this misconduct demonstrated "a concerted effort to interfere with the judicial process * * *."14 That conclusion was shared by nine different appellate judges who, in one context or another, have reviewed the conduct of the defendants at either or both of their trials.15 Referring to that conduct, the Court of Appeals said:
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Ormento v. United States
...considered and rejected, but petitioner seeks to relitigate issue raised and decided against those petitioners. See Panico v. United States, 291 F.Supp. 728 (S.D.N.Y.1968), aff'd, 412 F.2d 1151 (2d Cir. 1969), cert. denied, 397 U.S. 921, 90 S.Ct. 901, 25 L. Ed.2d 102 This application cannot......
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Tyler v. Swenson
...See e. g. Barry v. Sigler, 373 F.2d 835 (8 Cir. 1967); Mirra v. United States, 379 F.2d 782 (2 Cir. 1967); Panico v. United States, 291 F.Supp. 728 (S.D.N.Y.1968), aff'd 412 F.2d 1151 (2 Cir. 1969); Bresnahan v. Luby, 160 Colo. 455, 418 P.2d 171 (1966). See also United States v. Smith, 337 ......
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U.S. v. Vilella, S8 97 CR 786(SAS).
...during the course of multi-defendant trials. In both United States v. Aviles, 274 F.2d 179 (2d Cir.1960), and Panico v. United States, 291 F.Supp. 728 (S.D.N.Y.1968), aff'd, 412 F.2d 1151 (2d Cir.1969), a defendant burst into a tirade before the jury accusing his co-defendants. In each case......
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Aratari v. Cardwell
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