(dissenting).
My inability to join in affirming Salvatore Panico’s sentence for contempt pursuant to Rule 42 (a) of the Federal Rules of Criminal Procedure will not, I hope, be attributed to lack of appreciation of the problems experienced by the district judges in the trial and retrial of this difficult criminal case, to excessive naiveté, or to failure to understand that government cannot permit “The interests of society in the preservation of courtroom control * * * to be frustrated through unchecked improprieties,” Sacher v. United States, 343 U.S. 1, 8, 72 S.Ct. 451, 96 L.Ed. 717 (1952), on the part of criminal defendants. The issue on which I am forced to part company with my brothers is a much narrower one — whether this vital interest has here been vindicated in the manner required by Rule 42 of Criminal Procedure in its effort to reconcile the need of maintaining order in the courtroom with that of preserving fundamental individual rights.
Conceivably Congress could have deemed the interest in protecting the order and dignity of the courts to be so important as to authorize judges to punish certain acts even though the actor was ignorant of the character and quality of what he had done. No one asserts that Congress has done this. The conduct for which Salvatore Pánico has been punished — quite justifiably if he knew what he was doing — is described in the Federal catalogue of crimes, 18 U.S.C. § 401, <and our criminal law normally “postu*129lates a free agent confronted with a choice between doing right and doing wrong and choosing freely to do wrong,” Pound, Introduction to Sayre, Cases on Criminal Law (1927), quoted in Moris-sette v. United States, 342 U.S. 246, 250, fn. 4, 72 S.Ct. 240, 96 L.Ed. 288 (1952).
In the usual case there is no issue whether an alleged contemnor was capable of making the choice that he did —on this very appeal there was none as to the five defendants whose conviction we unanimously affirmed, United States v. Bentvena, 2 Cir.1962, 304 F.2d 883. As to Salvatore Pánico there was. When I state there was such an issue, I would not be understood as saying that, in this exceptional area, the mere making of a claim of lack of a “vicious will,” 4 Bl. Comm. 21, suffices to create an issue on that score as it normally does in a criminal case; F.R.Crim.Proc. 42(a) can well be construed as authorizing the judge, by analogy to F.R.Civ.Proc. 56(c), to disregard a claim of this sort that does not create a “genuine issue.” Yet my brothers do not and, I think, could not say that, even with this qualification, no issue was created here, at least as to appellant’s capacity to “choose” to invade the jury box and address the jurors on May 23 and to perform the incidents on the two following days, which must have been an important basis for the long sentence of 15 months’ imprisonment. Dr. Arnett, a psychiatrist appointed by the Court, testified on May 25 that Salvatore had “developed a paranoid state with psychosis”; Dr. Hyslop, later appointed, admitted that the May 23 incident “could have been a hysterical display”; and Dr. Weiss, called by appellant, thought that Salvatore did not fully comprehend the courtroom proceedings. Despite all this it may well be that, as my brothers say, we could not properly upset the judge’s conclusion, based on other testimony of the doctors and his own observation, that “There is nothing insane about this man whatever,” and this despite the fact, communicated to us by counsel after the argument, that the psychiatrist at Sing Sing Prison and two others have now diagnosed Salvatore as schizophrenic — if the judge had power to come to any conclusion for the purpose here relevant. I think he did not.
The summary procedure authorized by F.R.Crim.Proc. 42(a) rests on the basis, as its words clearly imply, that “There is no need of evidence or assistance of counsel before punishment, because the court has seen the offense,” Cooke v. United States, 267 U.S. 517, 534, 45 S.Ct. 390, 69 L.Ed. 767 (1925). Although Judge MacMahon “saw or heard” Salvatore’s physical acts, he had not and could not have seen “the conduct constituting the contempt,” when an essential element of that conduct was a “vicious will” and a substantial issue had been raised as to Salvatore’s capacity to possess one.
Moreover, the judge’s certificate itself demonstrates how far he depended on things he neither saw nor heard. He places emphasis, as my brothers seem to do, on the testimony of the psychiatrists concerning Salvatore’s ability to stand trial; the very fact that he found it necessary to rely on such evidence seems to show his belief that something beyond what he saw or heard appellant do was essential to conviction here.1 The *130judge also relied on what he considered the faked character of appellant’s suicide attempts, acts which Judge MacMahon neither saw nor heard and which were not committed in his presence. True, he saw the cuts on appellant’s arms, but these were only circumstantial evidence as to the character of an act outside his presence, and I can find no satisfying distinction between his use of such evidence to support a conclusion as to a plan formulated by appellant with respect to action taken outside the court and the trial judge’s use of conduct inside the courtroom as an evidentiary basis for inferring an agreement made outside it, which a majority of this Court, in United States v. Sacher, 182 F.2d 416, 455, 464 (2 Cir.1950), held an impermissible case for proceeding under F.R.Crim. Proc. 42(a).2 Since the certificate thus rested in part on findings not permitted to be made pursuant to Rule 42(a), we would be obliged at least to remand on this score alone. However, for reasons previously stated, I am convinced that no valid conviction under Rule 42(a) can be made in this case.
Perhaps I should emphasize that, as in Offutt v. United States, 348 U.S. 11, 75 S.Ct. 11, 99 L.Ed. 11 (1954), the consequence of the view taken in this opinion is the not very calamitous one that appellant shall be prosecuted, not under Rule 42(a), but under Rule 42(b), which requires notice, hearing and in this case, unless he consents, the participation of another judge. On the facts here, where there is indeed much to suggest a deliberate attempt to thwart a verdict and consequent likelihood that a trial under Rule 42(b) will yield no different result, reversal to that end may seem a useless formalism, especially when, if we should affirm appellant’s sentence on the narcotics charge on which he was tried and convicted, the 15 months’ sentence for contempt, sandwiched between his existing New York and Florida sentences and his new Federal sentence, will have a minimal practical importance. But the protection here refused this not too attractive appellant may be of vital consequence to a worthier one on another day; procedural safeguards in the administration of criminal justice do not exist for the sole benefit of nice people.
I would reverse for appropriate action under Rule 42(b).3
. Although I would reach the same conelusion if the facts were otherwise, it should be pointed out that the testimony of the psychiatrists was directed to an issue wholly different from that relevant to appellant’s guilt, of contempt. The testimony of Dr. Hyslop on May 29, and of Dr. Arnett on his second appearance, also on May 29, that Salvatore was then able to understand the nature of the charges against him (although Dr. Arnett had not thought him so when testifying on May 25), does not negate a conclusion that the paranoid state which Dr. Arnett identified on May 25 may have caused the outbursts antedating May 29 or even the ones postdating it. Dr. Arnett conceded, in his May 29 testimony, that psychotic episodes might recur. Moreover, as is well known, in paranoia, “Falsification of reality is restricted to misinterpreting events; what happens is correctly perceived, but pe*130culiar inferences are drawn from it. Except for the delusional system, the patient is perfectly oriented and perfectly normal in his conduct. The personality does not become disorganized, and interest in the environment is substantially preserved,” White, The Abnormal Personality (1948), 524.
. The record also contains other evidence as to appellant’s suicide attempts; it is hard to believe the judge performed the feat of putting this out of his mind and relying only on what he saw and heard.
. I have not dealt with a possible contention that Salvatore Pánico offered nothing to show that he was under a paranoid psychosis on April 2 when, the Court having assigned counsel because the lawyer of Salvatore’s choice was engaged in a New York criminal trial, Salvatore said, in the course of the impanelling of a jury, ‘‘Do these people know I don’t have a lawyer? What is this, Russia? There is nobody representing me here.” The sentences imposed by the judge on other defendants for incidents of a character similar to this make it plain that he would not have sentenced Salvatore to 15 months’ imprisonment but for the much more serious incidents of May 23, 24 and 25. Although a remand could permit a sentence under Rule 42(a) limited to the April 2 incident, it would seem wiser that all the specifications be considered together under the Rule 42(b) procedure.