Full opinion text
MOORE, Circuit Judge. This is an appeal by thirteen defendants from their convictions for violations of the federal narcotics laws, 21 U.S.C. §§ 173, 174. The indictment, filed on May 5, 1960, contained eight counts, and named twenty-nine defendants. Counts one through seven charged various defendants with substantive violations; count eight charged all of those named with conspiracy to violate the narcotics law. The trial from which this appeal is prosecuted was the second trial on this indictment. The first trial, before Judge Levet and a jury, ended in the declaration of a mistrial after a trial of six months. This retrial of fourteen of the defendants began before Judge MacMahon and a jury on April 2, 1962, on counts four and five, charging sales of narcotic drugs, and count eight charging a conspiracy to import and distribute drugs. On June 19, 1962, the trial court granted a motion for judgment of acquittal as to the defendant, Frank Mari, and on June 25, 1962, the jury returned a verdict of guilty as to the thirteen appellants on all counts in which they were named. Sentencing took place on July 10, 1962. Appellants, together with their co-defendants and co-conspirators, were' charged with a conspiracy to import large amounts of narcotic drugs into the United States .from Canada, and to dilute and distribute these drugs after their importation. The principal government witness, Edward Lawton Smith, and other government witnesses, described in some detail the workings of the conspiracy and the functional division of labor within the organization. In skeleton outline the conspiracy consisted of a group of Canadians, headed by Guiseppe “Pepe” Cotroni, who handled the exportation of the drugs from Canada. Couriers brought the narcotics across the Canadian-United States border and into the New York metropolitan area. Members of the conspiracy manned centers in the New York metropolitan area where they received the drugs from the couriers and diluted and packaged them. Distributors finally disposed of the drugs through various selling outlets. Overall responsibility for the continuing operation rested in its “chief executive”, the appellant Carmine Galante. The Conspiracy The April 1957 Montreal Meeting and Narcotics Importation In late April 1957, Smith, a Canadian with underworld connections, met the appellant Mancino in Montreal. Mancino asked Smith to make a “run” into New York with him and Smith agreed. The following day Mancino took Smith to an apartment in Montreal where they met the appellant Galante, the severed defendants Giglio and Stepanoff, and Frank Cotroni, Vic Cotroni, and a person identified only as “Angelo”. Galante picked up a valise, put it on the coffee table, and opened it. Mancino examined its contents, which were clear plastic bags containing a white powder. As Smith and Mancino were leaving with the valise, they encountered the severed defendants, Guiseppe “Pepe” Cotroni and Vecchio. Smith and Mancino drove to New York to Frank’s Bar & Grill in Brooklyn where Mancino took the valise of narcotics and Smith returned to Montreal. In late February or early March, 1958, Smith again came into New York City and drove to Frank’s Bar & Grill where he met Mancino, Vecchio, and “Angelo”. Mancino asked Smith if he would drive over to Manhattan and back. Smith agreed and Mancino picked up a package from Vecchio’s car and directed Smith to the Vivere, a bar located on the lower east side. There Mancino left the car, rejoined Smith shortly, and they drove back to Brooklyn. The “Route” Deliveries During the ensuing months, Smith spoke with Mancino almost daily and there followed at weekly intervals a series of at least five “route” deliveries of narcotics throughout the Metropolitan area. On each of these occasions Smith met Mancino, Vecchio and “Angelo” at Frank’s Bar & Grill in Brooklyn. Vecchio would remove a cardboard suit-box from the trunk of his car and give it to Mancino who would take it upstairs to his apartment and return in a few minutes carrying a valise. Prior to one “route” delivery, Smith accompanied Mancino to the latter’s apartment with the suitbox and saw the nature of its contents, cellophane bags containing white powder. On this occasion, Smith saw Mancino wrap each of the bags in brown wrapping paper and mark them with the names of the “drops” along the route. Mancino then put the packages in a valise and an empty shoebox and he and Smith embarked on their .route. The first stop on the route was the Vivere. After the first delivery to the Vivere, Smith accompanied Mancino into the bar, where he observed Mancino put the valise on the table, take out a package and give it to DiPietro, who in turn gave it to the severed defendant Gellman. The second stop on the run was the 'Squeez-Inn, a bar on East 4th Street in Manhattan. On at least three occasions, the package was given to appellant •Sciremammano who carried it to the back •of the bar. Another time the shoebox •containing the narcotics was given to the •defendant Polizanno in the presence •of the severed Canadian defendant ■Stepanoff. The fourth stop was the 1717 Club, a bar in Brooklyn operated by appellants ■Salvatore and Carmine Pánico. There the package would be delivered to one of the brothers, both of whom would take :it to the kitchen in the back of the bar. After the stop at the 1717 Club, Smith would return with Mancino to Frank’s Bar & Grill, where Smith would remain while Mancino made a delivery to “Rocco up on the Hill”. Mancino later intro•duced the severed defendant Sancinella to Smith as “Rocco up on the Hill”, and the appellant Angelo Loicano as “his partner, Puggy”. In Loicano’s presence, Sancinella asked Smith to make some runs from Canada for them. When ■Smith declined this offer, Loicano told him that he could make $100,000 to $140,000 a year in this work and that Smith should think it over. In addition to these regular stops on the route, on three occasions Smith drove Mancino to a Manhattan hotel where packages were given to the severed defendant Indiviglio. DiPietro and Mancino meet Cotroni in Canada Because of a dispute over DiPietro’s failure to make prompt payment in full to the Canadian group, DiPietro, late in April 1958, invited Smith to accompany him on a trip to Canada. A day or two later, Smith, DiPietro, Mancino, “Angelo,” and one Frank Randazzo drove to Canada. In Montreal, Smith arranged a meeting between Cotroni, Giglio and DiPietro. After DiPietro paid Cotroni $17,000, Giglio informed DiPietro that he was now on a “pay as you go basis.” On the following evening, Mancino, Randazzo, “Angelo” and Smith drove back to New York City with a load of narcotics and Smith and Mancino made deliveries to the Vivere, the Squeez-Inn, the hotel in Coney Island, and the 1717 Club. The Ormento Group Between May 16 and May 21, 1958, at the Vivere, DiPietro introduced Smith to appellant Anthony Mirra. On the following evening at Mirra’s request, Smith went to Johnny’s Keyboard, a bar on Lexington Avenue between 56th and 57th Streets and there met Mirra, the severed defendant Petillo, and appellant Joseph Fernandez. During the next few days, the four of them spent a great deal of time together. In late May 1958, Smith and Petillo drove to the lower east side to Jay’s Bar on Houston Street, where Petillo introduced Smith to three men — “Angie”, “Bootsie” and “Chalutz” • — the severed defendants Angelo Tuminaro, Anthony DiPasqua and Charles Gagliadatto, respectively. During the meeting, “Angie” asked Smith to make “runs” from Canada for them and when Smith declined “Angie” guaranteed that he would make $140,000 a year in this line. A few days later, Mirra and Smith went to a restaurant, Marino’s, where they met appellant John Ormento, who also asked why Smith was turning down “these offers we have been making to you.” In the early part of June, Smith again went to Jay’s Bar with Petillo, where they met “Bootsie”, “Angie” and “Chalutz.” “Angie” again pressed him to make runs from Canada and when refused asked him about the trip he had made to Canada with DiPietro, and asked whether he had brought back a “load.” When Smith agreed that he had done so, “Angie” said, “Who the hell do you think that was for?” As Smith and Petillo started to leave, Petillo picked up an envelope which he said “was his end” that he received every week. A short time later, Mirra told Smith to go to Chickie James’ Stable, a midtown night club operated by Mirra. There he was joined by Mirra and Fernandez. Mirra and Fernandez went to the rear of Fernandez’s car where Fernandez took out an attache case which he gave to Mirra. Smith drove Mirra to the Saxony Restaurant on East 53rd Street. As Mirra was getting out of the car, Smith asked what this was all about and Mirra opened the attache ease revealing two cellophane bags containing a white powder, and said they were “making a run.” When Mirra returned, he again opened up the case and showed Smith the contents, two bundles of money. They returned to the Stable where they met Fernandez and Petillo. Mirra gave the attache case to Petillo, who left the area in a taxicab. During the second week in June, 1958, Smith and Mirra made a delivery of narcotics to Marconi’s Restaurant at Ormento’s behest. Sometime during the middle of June, Smith, Mirra, Petillo and Fernandez met in the basement of Chickie James’ Stable and discussed the possibility of opening a new wholesale narcotics outlet. They concluded that with Smith’s Canadian connection for narcotics, they could establish themselves and parted with the understanding that when all was set they would let Smith know. About a week later, Smith met with “Bootsie”, “Angie”, “Chalutz” and Petillo at Jay’s Bar and was again urged to make trips to Canada for them. Delivery from Galante to Ormento Late in June 1958, Mirra, Smith and one Joseph Curtis drove to 56th Street, and Sutton Place in Manhattan whereGalante was standing on a corner. When-they approached, Galante told Mirra that, the “stuff” was in a nearby car. Mirra, and Smith removed a suitcase from the-rear of the car and Mirra gave it to-Curtis, who put it in his car. Galanteasked Mirra if he knew what to do, Mirra indicated that he did, and Galantegave Smith ten $100 bills. Mirra, Smith and Curtis then drove to the Park Sheraton Hotel, where Smith and Mirra went, upstairs. In one of the rooms they met" Ormento and Vinnie Bruno, not a defendant in this ease. Mirra threw the-suitcase on the bed and Ormento opened it, revealing a number of cellophane bags, with white powder. On the 28th or 29th of June, Mirra,. Petillo and Smith were arrested by local authorities. Upon their release, Smith was criticized by Mirra for not changing-hotels and when Smith remained adamant, Mirx-a told him to make a change- or he’d wind up behind a truck, because-“if Carmine [Galante] gives the order,. John [Ormento] will have to cax’xy it out, and you are going to wind up being-dragged behind the truck.” Seizures of Heroin and Other Evidence- On February 14, 1959, Narcotics Agents observed Max’cantonio Orlandinodrive to the residence of his bx*other and! sister-in-law, Ann and Philip Orlandino.. He entered the house and came out carrying a brown paper bag and drove to-his place of employment in Jamaica.. Shortly after noon he drove to the Railway Express Office in Jamaica and presented a parcel for shipment to “Eula I. Brown in Chicago”, giving his name-as Smith. The package arrived in Chicago, and on February 18 it was seized by agents of the Bureau of Narcotics. It contained approximately two kilograms of heroin. Again on February 14, 1959, Narcotics-. Agents, together with local police, entered the residence of Ann and Philip Orlandino and found approximately seventeen pounds of heroin, over $49,000 in cash, and paraphernalia utilized in the diluting, packaging and distribution of drugs. At the same time, other agents seized two packages which contained approximately a half kilogram of heroin from the desk used by Marcantonio Orlandino at his place of employment. Further out on Long Island, at the same time, other agents entered the residence of Marcantonio Orlandino and seized, inter alia, an address book in which appeared the inscription: “Ang Tumanaro 95-24 148 St. Ca 6-7518 Jamaica OL. 7-5476”. In April 1959 other law enforcement officers were closing in on the center at the Yivere Lounge operated by DiPietro and Gellman. On April 27, Narcotics Agents followed Gellman to 19th Street and Second Avenue where he met DiPietro in a luncheonette. While there an agent overheard their conversation concerning an imminent sale of narcotics. DiPietro instructed Gellman to meet him “in front of the plant in exactly ten minutes.” The agent followed Gellman to 226 East 18th Street where Gellman entered the building. When he came out he was carrying a brown paper bag which he gave to DiPietro who was waiting in front of the building. They parted and DiPietro entered a ear which was parked across the street from the luncheonette, and drove away. They met again a short time later and DiPietro was seen to hand Gellman some money. On April 30 Gellman again entered the “plant” and emerged carrying a brown paper bag. He was apprehended by federal and state officers. The bag he was carrying contained a quantity of heroin. A search of the apartment at 226 East 18th Street, which was used as the plant, uncovered a suitcase containing a quantity of heroin, packaging paraphernalia, and some empty plastic bags with traces of heroin. Agent Biase and Smith as “Importers’' and “Retailers” In the middle of April 1959 Smith started to cooperate with the Bureau of Narcotics and, shortly thereafter, he introduced an undercover agent of the Bureau, Patrick Biase, to Mancino in an attempt to infiltrate the conspiracy. The Agent and Mancino discussed the-possibility of Smith’s and the Agent’s opening a new wholesale outlet for narcotics, securing narcotics from the Cotroni organization in Canada. On April 27 Biase and Smith met Mancino and were told by Mancino that he had not yet gotten the “connection” they sought to take care of supplying them with drugs during a shortage between Canadian trips but said that he would see “Roceo” (Sancinella) about it. They parted with the understanding that Smith and the Agent would contact him upon their return from Canada. Smith and Biase went to Canada and, on April 29, met “Pepe” Cotroni and the severed defendant Rene Robert. Smith told them that he and Biase were going-to open a new ■ wholesale outlet and wanted their aid. Cotroni gave them detailed instructions on the methods used: to smuggle the narcotics across the Canadian-United States border. He also, asked Smith how “Angie” and “Bootsie”' were. He told Smith that the narcotics-seized from the Orlandinos belonged to“Bootsie” and “Angelo”. On May 21 Biase and Smith returned to Montreal and were reminded by Cotroni that it was his “stuff” that had been seized — “the ten kilos in Hicksvillefrom Orlandino.” He told them that “Angie” and “Bootsie” still owed him a substantial amount of money for the-narcotics seized from Orlandino, but that he was not concerned since he could trust them. They remained in Montreal and on May 25 Cotroni told Biase and Smith that he had gotten a phone call from the people in New York and that-“Angie” and “Bootsie” were not anxious-for new competition. They agreed to-avoid this problem by telling Mancino that they had a new connection for drugs in Florida. After arranging to communicate with Cotroni by telephone, Smith and Biase returned to New York where they met Mancino and, according-to their plan with Cotroni, told him they were going to get the narcotics from a Florida connection. On June 3, 1959, Biase and Smith returned to Montreal and met Cotroni and Robert. Biase gave Cotroni $13,800 for narcotics. Cotroni gave the money to Robert, who left the motel room, returning a short while later with two kilograms of heroin. Biase and Smith turned the narcotics over to agents of the Bureau of Narcotics and the Royal Canadian Mounted Police. After several telephone calls from Cotroni, Smith and Biase returned to Montreal on June 17. Once again Cotroni and Robert met them at their motel and Biase gave $14,000 to Cotroni who promised delivery of the drugs later that evening. In the early hours of June 18, while Cotroni, Biase and Smith were in the motel room, Robert entered carrying a cardboard box and a brown zipper bag which Biase had furnished. They contained approximately four kilograms of heroin. Cotroni opened the cardboard box and took out one of the plastic bags containing heroin, and indicated to Biase and Smith a point on the bag which had been punctured and then sealed with scotch tape. He told how this mark was made by him in his particular testing procedure and that it was a trademark, attesting that Cotroni himself had tested the narcotics and had found them to meet his high standards of purity. Cotroni said, “when you see that ‘X’ on the tape there, you’ll know that the stuff belongs to me.” After separating, Biase and Smith again turned the narcotics over to agents of the Bureau of Narcotics and the Royal Canadian Mounted Police. A week later on June 24 Cotroni came to New York City with Robert and met Smith at the Edison Hotel. Smith introduced another undercover agent, Frank Dolce, as the “money man” of their business. After the meeting, Dolce and Smith drove Cotroni to the Vivere to find DiPietro. He was not there and Cotroni asked them to drop him at Mancino’s residence in Brooklyn. The next day Smith and Dolce again met Cotroni and Dolce paid him part of some money due him for narcotics. Cotroni later told Smith that he wanted him “to bring back 12 kilos for Boots and Angie.” On June 30 in Montreal Robert again advised Smith that Cotroni intended to utilize him to bring drugs back to New York City for the people there. On July 7, Biase and Smith met Cotroni and Robert to arrange for a purchase. While driving around Montreal, Cotroni told them that he had six kilograms for them, and, if everything was all right, they would also take another fifteen kilograms to New York for Tuminaro and DiPasqua. Thereafter, difficulties in consummating the transaction arose and officers of the Royal Canadian Mounted Police placed Cotroni and Robert under arrest. Sometime during July or August, 1959, shortly after Cotroni’s arrest, Mirra and Indiviglio, accompanied by another man, arrived at the Montreal residence of Suzanne Cadieux, Rene Robert’s mistress. They sought the “cache” of drugs Cotroni had at the time he was arrested. After threatening Mile. Cadieux to no avail, they departed without finding the narcotics. Sufficiency of Proof as to the Conspiracy There was abundant evidence that all appellants, except Bentvena, Monastersky and Struzzieri, were part of a conspiracy to import and deliver narcotic drugs. The evidence of knowing participation in the conspiracy by Galante, Mancino, DiPietro and Mirra is overwhelming. The testimony of Smith not only placed Galante in the midst of the group importing the drugs but also shows him with physical possession of narcotics and direct knowledge and supervision of the importation. Smith’s and Agent Biase’s testimony establishes Mancino as a courier for the organization who smuggled the drugs into the United States and, with Smith, distributed the drugs on periodic “route” deliveries to wholesale centers in the New York metropolitan area. DiPietro was described as the head of the center that operated from the Yivere. There was extensive testimony relating to DiPietro’s trip to Montreal and the settlement of his financial difficulties with Cotroni. Smith’s testimony concerning DiPietro was corroborated by substantial independent evidence. It was DiPietro who introduced Smith to Mirra. Mirra was a member of the group operating under Ormento in the east midtown area and was responsible for the physical handling of the narcotics for this group. Smith’s testimony showed Mirra delivering narcotics from Galante to Oimiento whom Mirra described as his “boss.” Smith accompanied Mirra on a number of narcotics deliveries. Mirra’s position in the organization was corroborated by the testimony of Cadieux. Ormento contends that he was involved in “but two isolated transactions” with “no evidence of any narcotics or indeed of any possession of narcotics.” However, on the occasion of the delivery of narcotics by Mirra to Ormento at the Park Sheraton Hotel, Mirra threw the suitcase on the bed and Ormento opened it, revealing a number of cellophane bags containing white powder. Galante had previously characterized the contents of the suitcase as “stuff”. That the substance involved in this transaction was narcotics may, of course, be proved by circumstantial evidence. The evidence establishing the nature of the contents of the packages here involved was in all respects similar to that approved by this court in United States v. Agueci, 310 F.2d 817 (2d Cir. 1962). See, also, United States v. Morello, 250 F.2d 631 (2d Cir. 1957); Toliver v. United States, 224 F.2d 742 (9th Cir. 1955). Ormento is in no position to invoke the isolated transaction rule. Aside from the evidence of. Ormento’s direct participation in this and the other narcotics transaction referred to previously, his statements to Smith concerning the latter’s refusal to accept the several offers made to him clearly support an inference of knowledge of the existence of a vast organization dealing in Canadian narcotics. Fernandez and Loicano similarly argue that the evidence against them is insufficient to establish knowing participation in a vast conspiracy and, at best, shows an isolated transaction. The isolated transaction rule “is not an arbitrary rule which is to be applied rigidly and without reason. It has been utilized to exonerate a defendant only when there is no independent evidence tending to prove that the defendant had some knowledge of the broader conspiracy and when the single transaction is not in itself one from which such knowledge might be inferred.” United States v. Agueci, supra, 310 F.2d at 836, The evidence against Fernandez consisted first of his taking an attache case from his car and giving it to Mirra who delivered it to the Saxony Kestaurant. This attache ease contained two cellophane bags filled with white powder. Smith also testified that Fernandez had summoned Mirra and Petillo to a meeting called by Galante at Johnny’s Keyboard. Finally, Smith ■ testified that Fernandez took part in a discussion with Mirra, Petillo, and Smith concerning the importation and distribution of Canadian narcotics. At this meeting, Smith was asked if he had a strong connection with “Pepe” Cotroni and if he could get narcotics from him. When Smith replied affirmatively, Petillo indicated that the other three could get the money that was needed and that they could open a new wholesale narcotics outlet. A single act may be enough to draw a defendant within the ambit of a conspiracy. United States v. Aviles, 274 F.2d 179 (2d Cir. 1959), cert. denied, 362 U.S. 974, 80 S.Ct. 1057, 4 L.Ed.2d 1009 (1960); United States v. Carminati, 247 F.2d 640 (2d Cir.), cert. denied, 355 U.S. 883, 78 S.Ct. 150, 2 L.Ed.2d 113 (1957). Since, however, the crime of conspiracy requires an intent to participate in the unlawful enterprise, the single act must be such that one may reasonably infer from it such an intent or the government must submit independent evidence that the defendant knew of the conspiracy and associated himself with it. United States v. Aviles, supra; United States v. Reina, 242 F.2d 302 (2d Cir.), cert. denied, 354 U.S. 913, 77 S.Ct. 1294, 1 L.Ed.2d 1427 (1957); United States v. Koch, 113 F.2d 982 (2d Cir. 1940). We find here, as we did in United States v. Agueci, supra, that there was independent evidence from which Fernandez’ knowledge of, and desire to participate in, the overall conspiracy may be inferred. The conference at which the opening of a new wholesale outlet being supplied from Canada was discussed demonstrates Fernandez’ knowledge of the existing conspiracy and his desire to participate in a new phase of that conspiracy. Appellant’s contention that this discussion related to the formation of a new conspiracy and not a new participation' in the old is not well founded. A conspiracy, once established, is presumed to continue until the contrary is demonstrated, United States v. Stromberg, 268 F.2d 256 (2d Cir.), cert. denied, 361 U.S. 863, 80 S.Ct. 119, 4 L.Ed.2d 102, (1955), and cases cited therein. Further, a conspiracy of this kind is, by its very nature, constantly expanding. The outlet contemplated at this meeting would have become just one more “drop” in the scheme of distribution. In any event, the contemplated formation of a new outlet presupposes the existence of old ones and is sufficiently probative of Fernandez’ knowledge of the overall conspiracy to warrant a conviction for conspiracy. As we said in United States v. Aviles, supra, 274 F.2d at 190: “From evidence of knowledge of the conspiracy and a transaction with one of its members it would be reasonable to infer intent to participate in it.” Loicano was introduced to Smith as a “partner” of “Rocco, up on the hill” (Sancinella) in Sancinella’s presence. At this meeting at a bar in Brooklyn, Sancinella asked Smith if he would be willing to “make some runs back and forth to Canada for him and his partner Puggy (Loicano).” When Smith declined the offer, it was Loicano who suggested that he could make $100,000 to $140,000 a year as a courier and told Smith to think it over. Smith testified that a number of deliveries were made to Sancinella. Loicano contends that the conversation with Smith was not in furtherance of the conspiracy charged but was an attempt to form a new conspiracy. We disagree. Sancinella and Loicano were engaged in an effort to recruit Smith as a courier to carry narcotics from Canada. They sought to have him join the existing conspiracy as an integral part of it and not to go into competition with the old conspiracy. This is made abundantly clear by Mancino’s efforts on behalf of Sancinella and Loicano to employ Smith. Maneino was the strong thread running through this entire conspiracy. This evidence against Loicano demonstrates the requisite knowledge of the conspiracy and a transaction with its members from which it would be reasonable to infer an intent to participate in it. Carmine and Salvatore Pánico and Sciremammano also contend that there is insufficient evidence to establish their knowing participation in the conspiracy. The evidence showed that these three appellants were repeated recipients of packages on Mancino’s route deliveries. While no conversations with Sciremammano illuminate his actions in repeatedly receiving packages of narcotics from Maneino and taking them to the back of the bar, this receipt of a quantity of narcotics repeated at least three times, is sufficient evidence from which a jury might reasonably conclude that the participant was aware of the existence of a larger scheme. Like Sciremammano, the Pánicos were recipients of packages of drugs at their “place of business,” the 1717 Club, but unlike Sciremammano, their activities were amplified by conversations, as well as evidence of acts which clarify their knowledge of the conspiracy. Smith testified that Salvatore Pánico was waiting on the sidewalk for Maneino and Smith on a number of occasions that packages of narcotics were delivered to the 1717 Club. From this evidence it might be inferred that he was there by prearrangement, with knowledge of the existence of a larger scheme in which he was participating. His actions in removing one of the packages from the valise in Smith’s car on one delivery, and his admonition not to argue while they had “stuff” supports the inference. Carmine Pánico participated in the receipt of the package from Mancino on each occasion and accompanied his brother into the kitchen with it. In addition, he told Smith and Mancino to do their “arguing some other place, some other time, not when you’re making a run.” The evidence as to his own independent actions and statements fully supports the jury’s conclusion that he knowingly participated in the overall scheme. The Errors Asserted There remain for consideration those claims of error which affect all or several of the appellants. I A. The Atmosphere of the Trial. All appellants complain that the atmosphere of the trial below rendered impossible that objective and unprejudiced hearing to which they were entitled. Specifically, they contend that the “mass conspiracy” trial, the outbursts and conduct of some defendants, the comments and actions of the trial judge, and the publicity attending the trial denied them the fundamental fairness required by due process. To appreciate fully the nature of these contentions, and to put the incidents referred to in their proper setting, we must start with the first trial and its abortive ending. 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 on this opening day of trial, the first outburst by Salvatore Pánico occurred. This incident was a precursor of events to come. Similar outbursts by Pánico and other defendants became commonplace. On one occasion Pánico 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 we find it neither necessary nor judicious to publicize or preserve the vile language and rebellious conduct that characterized this trial. Suffice it to say that more abhorrent conduct in a federal court and before a federal judge would be difficult to conceive. In addition to the courtroom conduct of the defendants, they engaged in a series of off-stage activities designed to delay and prolong the trial. On April 16, the defendant Sciremammano fell or tripped down two stairs at the Federal Detention Headquarters. Because of this, no testimony was taken on April 16 or on the morning of the 17th in order to permit a physician to examine Seiremammano, first in the Courthouse and then in a hospital. No objective signs of injury were found. The physician stated that in his opinion Sciremammano was feigning his “agony”. Nonetheless, he refused to come to court and, when brought in a wheelchair, insisted that he was too sick to continue. No testimony was taken on the afternoon of April 18 because of the illness of the defendant Struzzieri. Mirra and Salvatore Pánico, on one occasion, - claimed that they had been drugged and were 'unable to remember what had transpired in the courtroom. In the early hours of June 7 Salvatore Pánico was found by a correction officer at Detention Headquarters hanging by a belt in a cell which he occupied with his brother and another prisoner. Thus, the opening of court was delayed. Pánico was unharmed and was able to continue the trial later that day. A court-appointed psychiatrist noted with reference to this incident, “the ostensible attempt at self-hanging occurred under circumstances justifying suspicion” as to its genuineness. The following morning, in the shower room, while preparing to come to court, and with his brother and other prisoners in the room, Salvatore Pánico made 14 widely-spaced shallow cuts on his forearm between the elbow and wrist. Panico’s wounds were sutured with little loss of blood. On Monday, June 11, Monastersky’s attorney informed the court that his client had fallen in the shower and had injured his arm. As with the others above-mentioned, it was asserted that Monastersky was so affected by the medication he received (an aspirin-like compound) that he was groggy and unable to follow the proceedings. Monastersky’s symptoms are claimed to have persisted during the remainder of the week. All appellants, even the perpetrators, complain of the prejudicial effect of the outbursts of the defendants. They claim that this prejudice was accentuated by the nature of the trial itself, that is, a mass conspiracy trial in which fourteen defendants were tried together. They contend that the rulings of the trial judge, in failing to declare a mistrial or sever the unruly defendants, and in ordering some of the defendants gagged and shackled and ordering an increased number of marshals to be present in the courtroom, constituted reversible error. .We find no abuse of discretion in the trial judge’s actions taken to preserve the security of .the courtroom. 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. As to his failure to sever certain defendants and to declare a mistrial after these outbursts, we look to our recent decision in United States v. Aviles, supra. There, as here, a defendant burst into a tirade before the jury accusing his co-defendants. There, as here, the trial judge promptly instructed the jury to disregard the outbursts. We said, in answer to the contention that reversal was required: “Manifestly it was not error to deny the mistrial motions. If such conduct by a co-defendant on trial were held to require a retrial it might never be possible to conclude a trial involving more than one defendant; it would provide an easy device for defendants to provoke mistrials whenever they might choose to do so. Under all the circumstances the trial judge’s instructions adequately dealt with the situation and his denial of the mistrial motions was proper.” 274 F.2d at 193. This case differs from Aviles only in that the outbursts of the defendants were more numerous and more offensive. But the trial judge instructed the jury to ignore the outbursts each time they occurred. This is all that he could do apart from taking steps to prevent their repetition. We have satisfied ourselves that the prosecution did not provoke the incidents. The judge did all in his power to minimize their effect, and we find no ground for reversal in the circumstances. Any other answer to these contentions would produce little less than anarchy. Appellants also seize upon the concern expressed in our recent decision of United States v. Agueci, supra, over the problems inherent in the trial of a mass conspiracy case. Their claim, apparently, is that if this were not a multi-defendant trial, the prejudice engendered by one defendant’s outburst could not accrue to the detriment of other defendants for the simple reason that they would not be there. In addition, they assert that if only two or three defendants were on trial, the chance that these disturbances would occur would be lessened. Law enforcement, and fair trial for those accused of violations is not to be limited to the pattern chosen by defendants. The administration of criminal justice in the federal courts will not be delivered into the hands of those who could gain only from its subversion. .Our decision in Aviles is as applicable to a trial of two defendants as it is to a trial of fourteen. It may take two to conspire but it takes only one to throw a chair at a prosecutor. Appellants claim that the trial judge should have severed each offending defendant after an outburst. Why this course of action was required we fail to see. After the incident had occurred, severance would not have protected the remaining defendants from any possible prejudice. It would simply have afforded each defendant an easy escape from the trial. Appellants insist, however, that Salvatore Pánico should have been severed because even if he were competent to stand trial, he was so mentally ill during the trial that his continued presence and conduct prejudiced the rights of the other defendants to a fair trial. Their claim is that even if prejudice resulting from the outbursts could not have been erased, the judge was obligated to sever Salvatore Pánico after it became apparent that he could not control himself and that other outbursts would be forthcoming. Rule 14 of the Federal Rules of Criminal Procedure provides for an exercise of discretion by the trial judge as to whether, at any point in the trial, there appears to be a possibility of sufficient prejudice to any defendant to warrant a severance, Schaffer v. United States, 362 U.S. 511, 80 S.Ct. 945, 4 L.Ed.2d 921 (1959); Opper v. United States, 348 U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101 (1954); and the exercise of that discretion will be corrected only if abused. Dowling v. United States, 249 F.2d 746 (5th Cir. 1957); United States v. Haupt, 136 F.2d 661 (7th Cir. 1943). We have recently had before us the contention that Salvatore Pánico could not be punished for contempt because he “was too mentally ill to formulate the intent to be contumacious.” United States v. Panico, 308 F.2d 125 (2d Cir. 1962). We there quoted at length from the trial judge’s certificate filed pursuant to Rule 42(a) of the Federal Rules of Criminal Procedure and concluded as follows: “We do not think that the conclusion of Judge MacMahon with respect to the deliberate and calculated nature of defendant’s acts constitutes reversible error.” 308 F.2d at 127. Accepting that conclusion here, little remains of appellants’ claims that the trial judge abused his discretion in failing to sever Pánico. The trial judge found, from his own extensive observation of Pánico, and from the reports of psychiatrists that examined him, that Panico’s acts were deliberate and calculated to disrupt the trial. This being so, he stands in no different position than the other unruly defendants and, as we have said, there was no abuse of discretion in refusing to grant a severance because of their actions. All appellants also contend that the trial judge’s attitude towards the defendants and their counsel, as revealed by his comments and rulings, prejudiced the jury against them. To support these claims, appellants direct our attention to isolated incidents, invariably taken out of context, and ask us to conclude therefrom that the trial judge abandoned his proper sense of impartiality and placed the weight of his position on the side of the prosecution. The trial judge, in his attempt to bring this case to trial and to see it brought to an orderly and expeditious conclusion, was presented with a host of problems, calling for the exercise of his discretion. Having the experience of the first trial before him, he had to make certain that the trial proceeded with reasonable dispatch and, at the same time, guarantee that all steps be taken to safeguard the rights of the defendants. In view of the unprecedented tactics employed to impede the continuance and resolution of this trial, we find that the actions and rulings of the trial judge were reasonable and often necessary to prevent the frustration of justice. Appellants strenuously urge upon us two incidents in particular that are alleged to typify the trial judge’s attitude. The first concerns the identification of Struzzieri by a government agent. When the Agent was asked to do so by the prosecutor on direct examination, he identified Struzzieri as the one “with the gra3'' suit, he has a black tie on.” Struzzieri, in fact, had a gray suit and white tie on. When defense counsel called attention to this fact, the judge had the witness step down and touch the defendant he identified as Struzzieri. He identified the right man. Defense counsel then asked the judge to put a description of the clothing worn by Struzzieri in the record. The judge responded : “The Court has already indicated what happened. I will simply say that Struzzieri does not have on a black tie. He does have on a dark gray suit. I also say for the record that there was no doubt in the Court’s mind who was identified. It will be for the jury to decide, however.” Appellants contend that this was an unwarranted intrusion by the trial judge into the province of the jury and that it exemplified the judge’s partial attitude. The facts do not justify appellants’ conclusion. At a pretrial conference, the trial judge asked defense counsel to devise a seating arrangement for themselves and for the defendants and he informed them that he would agree to anything reasonable. Defense counsel asked to be able to shift the defendants around as they saw fit. The trial judge refused this request on the ground that it would create disorder but agreed to an arrangement whereby the defendants would sit behind their respective counsel. Some time just before the incident in question, DiPietro left the seat he ordinarily occupied and took a seat immediately to Struzzieri’s left. DiPietro was dressed in a light gray suit and wore a black necktie. The shades of Struzzieri’s dress were just the opposite; he wore a dark gray suit and a white tie. Up to this point in the trial, each time a witness was asked to identify a defendant, that defendant stood up, either at the direction of his counsel or without being asked, before the identification took place. The witness involved in this incident was asked to identify both Bentvena and Struzzieri. Bentvena stood up and the witness identified him; Struzzieri stood up and the witness identified him but remarked that he had a black tie on. Defense counsel, who had their backs to both DiPietro and Struzzieri, wheeled around and asserted that the witness had identified DiPietro. The trial judge concluded that the defendants had engaged in a pre-arranged attempt either to confuse the witness or mislead the jury. On the basis of the facts of record set out above, and our own detachment from the atmosphere of these proceedings, we can neither say that he was wrong in his conclusions nor that his statements made in the presence of the jury were improper. The second incident concerns the trial judge’s characterization, in the presence of the jury, of certain outbursts by defendants as “a put-up job.” On the morning of May 25, 1961 shortly after the first witness of the day had assumed the stand, the following occurred: Defendant Salvatore Pánico: “DiPietro is talking about me there. He is the convicted dope pusher. Separate me from him.” Defendant DiPietro: “Stop him. I told you, Al.” Mr. Krieger: “I move for a mistrial as far as DiPietro is concerned.” (Deputy marshals escort Salvatore Pánico from the courtroom.) ****** The Court: “Your motion for a mistrial is denied, Mr. Krieger. It is obviously a put-up job.” It should not be the function of an appellate court with all the advantages of hindsight to substitute itself for the trial judge and to declare how it might have handled each situation or to deliver lengthy admonitions to trial judges on the proprieties of conducting these difficult criminal trials and the need to avoid embroilment with defendants and defense counsel despite the kind of provocation evident here. This was but one incident in a trial that lasted almost three months. It was not, as appellants contend, an indication of the hostility of the trial judge toward the defendants and their counsel. We have described sufficiently the outrageous conduct of the defendants at this trial. We find that the trial judge, notwithstanding this harassment, maintained an impartial attitude and did all in his power to safeguard the rights of the defendants and to minimize the effects of these outbursts. After the incident in question, as after all similar disturbances, the judge instructed the> jury to ignore it. We find no ground for reversal here. B. Newspaper Publicity During the course of the trial, certain articles appeared in the New York newspapers specifically referring to the trial and some of the defendants. These articles called attention to the reason for the declaration of a mistrial in the first trial and described some of the defendants as “delegates to the 1957 underworld convention in Apalachin” and as linked to “the Mafia.” Upon being advised of the contents of these articles, the trial judge conducted a number of “voir dires” of the jury. No juror had read any of the articles. One juror indicated that his wife, in an effort to find out what case he was sitting on, showed him two newspaper articles. He glanced at one long enough to realize that it was about this ease and then put it aside and refused to discuss it further with her. He gave every assurance that the article had not prejudiced him. The judge, nevertheless, discharged him from the jury. After each voir dire and before each day’s recess, with one exception, the judge cautioned the jurors against reading anything that related to this trial or to narcotics generally and to refrain from discussing the case with anyone. In addition, the trial judge had the United States Attorney write to all New York publishers requesting that they avoid publishing articles related to the case. This request was complied with until the misconduct of the defendants reached such violent and bizarre extremes that the voluntary ban was lifted by the press. Even then, only one article appeared that discussed the happenings of the trial. It is evident from the record here that the trial judge was extremely sensitive to the problems raised by adverse newspaper publicity. He took every precaution possible to prevent the publication of prejudicial articles and repeatedly admonished the jury to avoid contact with any such publicity. “The crux of the matter is whether the statements were so prejudicial as to require the trial judge, who has large discretion in such matters, * * * to empanel a new jury.” United States v. Feldman, 299 F.2d 914, 917 (2d Cir. 1962). Here there was no showing that any juror came into contact with such matter, nor was there, of course, any showing that a juror could not serve in a fair and impartial manner. That, coupled with the affirmative action taken by the Government and the trial court’s continuing efforts to secure a fair and impartial jury, clearly compel the conclusion that appellants suffered no prejudice. United States v. Agueci, supra; United States v. Leviton, 193 F.2d 848 (2d Cir. 1951), cert. denied, 343 U.S. 946, 72 S.Ct. 860, 96 L.Ed. 1350 (1952). C. Denial of Right to Counsel — Adequacy of Time to Prepare for Trial A number of appellants contend that they were denied the effective assistance of counsel by the trial judge’s refusal to postpone commencement of the trial so that defense counsel could adequately prepare. At a pretrial conference held on March 9, 1962, the trial judge set the case for trial on March 19th. One of the assigned counsel had been appointed as recently as March 2nd. In rejecting applications for adjournment, the trial judge explained that the case had been tried once before, that they were in the advantageous position of having the Government’s case set out in the record, and that the facts of the case could easily be mastered by the date set for trial. On March 16th at another pretrial conference, the trial court relieved Mancino’s counsel of his assignment because of health and substituted another attorney, adjourning the trial for two weeks to enable the newly assigned counsel to prepare. The trial judge was of the opinion, in view of the assurance given by the new attorney’s firm that he would be given sufficient assistance, that he could be prepared by April 2nd. The disposition of a request for continuance rests in the discretion of the trial judge and the exercise of that discretion will not be disturbed unless a clear abuse is shown. See, e. g., Avery v. Alabama, 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377 (1940); Johnson v. United States, 291 F.2d 150 (8th Cir. 1961), cert. denied, 368 U.S. 880, 82 S.Ct. 130, 7 L.Ed.2d 80 (1961); Torres v. United States, 270 F.2d 252 (9th Cir. 1959), cert. denied, 362 U.S. 921, 80 S.Ct. 675, 4 L.Ed.2d 741 (1960); Bunn v. United States, 260 F.2d 313 (8th Cir. 1958); Thomas v. United States, 252 F.2d 182 (9th Cir. 1958); United States v. Kelley, 186 F.2d 598 (7th Cir.), cert. denied, 341 U.S. 954, 71 S.Ct. 1004, 95 L.Ed. 1375 (1951); United States v. Wight, 176 F.2d 376 (2d Cir. 1949), cert. denied, 338 U.S. 950, 70 S.Ct. 478, 94 L.Ed. 586 (1950). The test here is whether the lack of effective assistance of counsel was such “as to shock the conscience of the Court and make the proceedings a farce and mockery of justice.” United States v. Wight, supra, 176 F.2d at 379; Avery v. Alabama, supra, 308 U.S. at 450, 60 S.Ct. 324. And the “time consumed in oral discussion and legal research is not the crucial test. * * * The proof of the efficiency * * * lies in the character of the resultant proceedings.” United States v. Wight, supra, 176 F.2d at 379. We find no abuse of discretion here. We have already referred to the difficulties experienced in bringing this case to trial a second time. The defendants and the government had grave interests at stake in seeing that further procrastination be avoided and that the trial be commenced without delay. The trial court was authorized, indeed was required to take whatever reasonable steps he could to effectuate those ends. His action, in setting the case peremptory against both sides and directing that the trial begin on April 2nd, was such a reasonable step. The contention that it was an abuse of discretion is belied by the zeal and quality of the performance rendered by defense counsel at trial and before this court. 1. The Pánicos and Loicano Carmine and Salvatore Pánico and Angelo Loicano contend that they were deprived of adequate and effective counsel and were denied their constitutional right to be represented by counsel of their own choosing. On September 5, 1961, Albert C. Aronne, Esq., filed notices of appearance for both Pánicos. Mr. Aronne was not present at the first pretrial conference held on March 9th but did appear for the second conference on March 12th. He there moved to withdraw his appearance asserting that it was never intended that he would try the case because the Pánicos did not want him as trial counsel; that he was not familiar with the procedure in the federal courts and that he had not been paid. The trial court denied the motion on the ground that it came too late. In the afternoon of March 29th, three days before trial, Mr. Aronne informed the trial court that he had been ordered to trial in a state court and would be detained there for about a week. On October 23, 1961, Sylvester Cosentino, Esq., filed a notice of appearance on behalf of Loieano. In the first morning of trial, Mr. Cosentino did not appear and it was found that he was in the hospital. Thus, on the first day of trial, there were three defendants who did not have counsel in court. In an attempt to proceed with the trial, the judge requested that other counsel cover for the missing attorneys until they returned and that the defendants agree to such coverage. Neither request met with any success, the Pánicos now deriving comfort only from Mr. Aronne’s representation. Defense counsel on this first morning were also in the process of substituting counsel for a number of defendants. When all the switches had been made, George Todaro, Esq., ended up relieved of his representation of other clients. The trial court assigned him to represent the two Pánicos and Loicano until such time as their retained counsel returned or they obtained other counsel. Later, the court directed the prosecution not to put in evidence directly relating to these defendants until their retained counsel returned. Accordingly, the testimony through April 11th dealt primarily with the substantive counts and did not directly involve the Pánicos or Loicano. Mr. Aronne returned on April 11th and the Judge afforded him an opportunity to review the existing trial record and make any motions on behalf of the Pánicos, or recall any witnesses for further cross-examination. He also offered Mr. Aronne the opportunity to make an opening address on behalf of the Pánicos after the Government rested, despite their explicit waiver of an opening. Mr. Cosentino returned on April 16th and the same opportunities were made available to him. From April 11th, when testimony concerning Loicano began, to April 16th, Mr. Todaro was representing only Loicano. These three appellants claim that the trial judge, by proceeding with the trial while their retained counsel were absent and by appointing Mr. Todaro to represent all three on an interim basis, deprived them of the effective assistance of counsel and the right to counsel of their own choice. A defendant in a federal court is, of course, entitled under the Sixth Amendment to the assistance of counsel for his defense, Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), and where he is able to obtain counsel for himself he must be given a reasonable time and a fair opportunity to secure counsel of his own choosing. Crooker v. California, 357 U.S. 433, 78 S.Ct. 1287, 2 L.Ed.2d 1448 (1958); Chandler v. Fretag, 348 U.S. 3, 75 S.Ct. 1, 99 L.Ed. 4 (1954). An accused’s right to select his own counsel, however, cannot be insisted upon or manipulated so as to obstruct the orderly procedure in the courts or to interfere with the fair administration of justice. United States v. Terranova, 309 F.2d 365 (2d Cir. 1962); United States v. Arlen, 252 F.2d 491 (2d Cir. 1958); United States v. Paccione, 224 F.2d 801 (2d Cir.), cert. denied, 350 U.S. 896, 76 S.Ct. 155, 100 L.Ed. 788 (1955); United States v. Mitchell, 138 F.2d 831 (2d Cir. 1943), cert. denied, 321 U.S. 794, 64 S.Ct. 785, 88 L.Ed. 1083 (1944). Thus, if a defendant does not give the court adequate notice that his retained counsel will be unable to attend the trial, the trial court may, in the exercise of its sound discretion, do what is reasonably necessary to meet the situation. And where the inability of retained counsel to serve gives promise of unreasonable delay or inconvenience in completing the trial, the court may require the defendant to secure other counsel. Releford v. United States, 288 F.2d 298 (9th Cir. 1961); Lee v. United States, 98 U.S.App.D.C. 372, 235 F.2d 219 (D.C.Cir.1956) ; Smith v. United States, 288 F. 259 (D.C.Cir.1923). We find that the judge acted reasonably in the circumstances. The delay that would have been caused by acceding to the Pánicos’ vacillating desire to have Mr. Aronne represent them at trial, and Loicano’s insistence on Mr. Cosentino’s services despite the knowledge of his heart condition and the fact that this condition had caused repeated motions for adjournments in the first trial is precisely the kind of obstruction which the right to counsel of one’s own choice must not be allowed to produce. These appellants refused to obtain other counsel and rejected the court’s attempt to obtain coverage from the other defense counsel. They demanded that the court close its doors until they and their counsel were ready for trial. 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. This disruption of the court’s business and tampering with the rights of the other defendants and the government cannot be tolerated. See United States v. Mitchell, supra. The steps taken by the court during retained counsel’s absence and the opportunities made available to them on their return fully protected the rights of these appellants. These three appellants, relying on Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), also contend that the appointment of Mr. Todaro to represent all three denied them the effective assistance of counsel. This claim is baseless. As the Supreme Court recognized in Glasser, and as the circuits have recognized since that case was decided, an appellant must show some conflict of interest between himself and the other defendants represented by his attorney before he can claim successfully that the joint representation deprived him of his right to counsel. See Wynn v. United States, 107 U.S.App.D.C. 190, 275 F.2d 648 (D.C.Cir.1960); Lebron v. United States, 97 U.S.App.D.C. 133, 229 F.2d 16 (D.C.Cir.1955), cert. denied, 351 U.S. 974, 76 S.Ct. 1035, 100 L.Ed. 1492 (1956); Lott v. United States, 218 F.2d 675 (5th Cir. 1955); Sanders v. United States, 183 F.2d 748 (4th Cir. 1950), cert. denied, 340 U.S. 921, 71 S.Ct. 352, 95 L.Ed. 665 (1951); United States v. Dennis, 183 F.2d 201 (2d Cir. 1950), aff’d 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137, rehearing denied, 342 U.S. 842, 72 S.Ct. 20, 96 L.Ed. 636 (1951); Kennedy v. Sanford, 166 F.2d 568 (5th Cir.), cert. denied, 333 U.S. 864, 68 S.Ct. 737, 92 L.Ed. 1143 (1948); Setser v. Welch, 159 F.2d 703 (4th Cir.), cert. denied, 331 U.S. 840, 67 S.Ct. 1510, 91 L.Ed. 1851 (1947); Farris v. Hunter, 144 F.2d 63 (10th Cir. 1944). As noted above, Mr. Todaro represented these three appellants during a part of the trial in which no significant evidence was introduced against any of them. In compliance with the court’s instructions, the prosecution put in evidence relating only to the substantive counts in which none of them were named. No conflict of interest is pointed to by appellants and none is apparent to us. 2. Galante On September 5, 1961, Nicholas P. Iannuzzi, Esq., filed a notice of appearance for Galante. On the first afternoon of trial he sought to withdraw in favor of Miss Frances Kahn, who told the court that she had been retained some three weeks earlier but had not had the opportunity to so advise the court. The trial judge permitted Miss Kahn to appear as co-counsel and conduct the defense but explicitly refused to relieve M