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December 4, 1962

UNITED STATES of America, Plaintiff,
Herman L. WOMACK, Defendant

The opinion of the court was delivered by: HOLTZOFF

This is a motion under 28 U.S.C. § 2255 in behalf of the defendant, who was convicted on charges of mailing obscene matter and circulars containing information where obscene matter can be obtained. The object of the application is to vacate the sentence on the ground that he was mentally incompetent to stand trial. The motion further prays for a dismissal of the indictment, or a direction of a verdict of not guilty by reason of insanity or for a new trial 'at which a plea of not guilty by reason of insanity may be entered' by the defendant. *fn1" The present motion is made by counsel other than counsel who represented the defendant at the trial and on the appeal from the judgment of conviction.

As will appear more fully hereafter, the defendant's affidavit attached to the motion affirmatively and conclusively proves that not only was he competent to stand trial, but that he also actively participated with his counsel both in the preparation for the trial and in the presentation of his defense. Additional evidence fully supports this view. Consequently, the motion under 28 U.S.C. § 2255 to vacate the sentence and judgment of conviction on the ground of mental incompetency to stand trial, will be denied. The remaining phases of this application will also be discussed later.

 In view of the unusual aspects of this case, a somewhat detailed summary of the issues and the proceedings, seems desirable. The indictment consists of numerous counts, each alleging a separate act of mailing. The period covered by it is from February 25, 1959 to December 18, 1959. The obscene matter involved in this case consisted of photographs of nude male persons, unaccompanied by any text. The subjects of the photographs were represented in lascivious and suggestive poses, with the camera obviously being focused so as to emphasize the private organs. The defendant was convicted on 29 counts, and on April 14, 1960 was sentenced to imprisonment for a term of one to three years on each count, the sentences to run concurrently. The conviction was affirmed by the Court of Appeals for the District of Columbia, 111 U.S.App.D.C. 8, 294 F.2d 204. In its opinion, the Court of Appeals stated:

 'The photographs which are exhibits in this case are conclusive autopical proof of obscenity and filth.' 'These are stark, unretouched photographs -- no text, no possible avoidance of scienter, no suggested proper purpose, no conceivable community standard which would permit the indiscriminate dissemination of this material, no alleviating artistic overtones. These exhibits reflect a morbid interest in the nude, beyond any customary limit of candor. They are 'utterly without redeeming social importance."

 The Court of Appeals made the following comment on the sentence imposed by this Court:

 'The court directed that these comparatively mild sentences run concurrently. Therefore the validity of the judgment upon one count, relating to one of these exhibits, supports the sentence.'

 At the trial in this Court, the defendant was represented by Stanley M. Dietz, Esquire, an able and experienced member of the bar, specializing in the trial of criminal cases. The trial consumed six days. Two principal issues were raised by defense counsel. First, as the defense had the right to do, it put the Government to its proof. Considerable time was consumed in making formal proof as to each individual act of mailing. Second, the defendant denied that the photographs involved in this case were obscene. A large number of magazines, pamphlets, and similar material purchased and accumulated by the defendant in preparation for the trial, were tendered as proof of community standards, but were excluded by the Court. A number of expert witnesses were called, who expressed the opinion that the questioned material was not obscene.

 There was no suggestion of any defense of insanity or of any lack of mental responsibility on the part of the defendant. There was no intimation of any mental incompetency to stand trial. Counsel for the defendant did not make any suggestion that he was unable to confer with his client intelligently, or that the latter lacked any understanding of the nature of the proceeding. In fact, as the Court personally observed from time to time during the trial, the defendant, who was seated at the counsel table alongside of his counsel, was constantly in conference with him. On at least one occasion, counsel for the defendant announced in open court that he had consulted his client on a particular matter that arose at the moment. *fn2"

 Some of the matters elicted on crossexamination are illuminating. Thus, he testified, in part, as follows:

 'Q. Now, you remarked about your particular sucker list and how valuable it was to you, sir. Let me ask you then, since you brought that in: What was your return from your sucker list?

 'A. I don't know. I have made money. Is that immoral?

 'Q. You have made money off those pictures, is that it?

 'A. I have made money.

 'Q. You've made a considerable sum of money, isn't that true?

 'A. Not as considerable as you infer. There are expenses in running any ...

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