Seidner v. United States

• Decision Date: 20 October 1958
• Docket Number: No. 14133.,14133.
• Citation: 260 F.2d 732,104 US App. DC 214
• Parties: Albert SEIDNER, Appellant v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

104 US App. DC 214, 260 F.2d 732 (1958)

Albert SEIDNER, Appellant v. UNITED STATES of America, Appellee.

No. 14133.

United States Court of Appeals District of Columbia Circuit.

Decided October 20, 1958.

Petition for Rehearing Dismissed November 17, 1958.

Appellant filed a brief pro se.

Messrs. Oliver Gasch, U. S. Atty., Lewis Carroll, Alfred Hantman and Nathan J. Paulson, Asst. U. S. Attys., were on the brief for appellee. Messrs. Carl W. Belcher and Fred L. McIntyre, Asst. U. S. Attys., also entered appearances for appellee.

Mr. John W. Douglas, Washington, D. C. (appointed by this Court) entered an appearance as amicus curiae.

Before PRETTYMAN, BAZELON and BURGER, Circuit Judges.

PER CURIAM.

This is an appeal from the District Court's denial, without hearing, of two motions, one for a new trial on the basis of newly discovered evidence, the other to vacate sentence under 28 U.S.C. § 2255. Neither motion alleged any ground upon which relief could be granted. Upon receiving a letter from appellant which indicated he was incarcerated in a mental institution run by the Bureau of Prisons and after examining the records, this court appointed a member of the bar as amicus curiae to file a memorandum. This memorandum raised for the first time a question as to whether appellant had been mentally competent at the time of his trial.

In response to a show cause order which this court issued after considering the amicus memorandum, the Director of Prisons stated that he had examined the report made by the Lewisburg Prison Board of Examiners of its psychiatric examination of appellant, an examination made six and one-half months after sentence on a guilty plea. The Director found therein no probable cause to believe that appellant was mentally incompetent at the time of his plea. See 18 U.S.C. § 4245. However, the present state of the record suggests it is possible that there is some question concerning appellant's competency to stand trial.

If appellant was incompetent when he pleaded guilty, the sentence must be vacated. Lloyd v. United States, 1957, 101 U.S.App.D.C. 116, 247 F.2d 522. Appellant, however, rejects the idea he may have been incompetent. Despite his protests, we hold that the issue of competency is cognizable under appellant's § 2255 motion by virtue of the amicus memorandum; the former should, in the peculiar circumstances of this case, be read to include the latter, for purposes of raising the issue of mental competence.¹ Accordingly we remand in order that the District Court may now determine whether the issue of competency requires that the sentence be vacated as in Kelley v. United States, 1954, 95 U.S.App.D.C. 267, 221 F.2d 822, conviction at new trial reversed on other grounds, 1956, 99 U.S. App.D.C. 13, 236 F.2d 746, or whether on the other hand a determination of appellant's competency can be made nunc pro tunc, as in Lloyd v. United States, supra; Wells v. United States, 1956, 99 U.S.App. D.C. 310, 239 F.2d 931; Gunther v. United States, 1954, 94 U.S.App.D.C. 243, 215 F.2d 493, subsequent competency determination reversed for improper procedures, 1956, 97 U.S.App.D.C. 254, 230 F.2d 222.

If the court determines that a nunc pro tunc competency determination will be adequate under the circumstances, it should then proceed to resolve the issue and make such a determination. Should it then determine upon adequate evidence that appellant was competent at the time of his trial, the motion to vacate sentence should be denied, otherwise it should be granted.

We are not unmindful of the difficulties which will confront the District Court and counsel on remand; among other things it may be assumed that appellant will not knowingly assist counsel in any effort to prove lack of competence at the time of trial. Nevertheless, it seems to us that the District Court must be allowed to deal with the problem in the first instance, exercising sound judicial discretion to resolve the problems of procedure, order of proof and burden of proof with such limited guidance as has heretofore been made available. See Fooks v. United States, 1956, 100 U.S. App.D.C. 348, 246 F.2d 629. The objective must be to achieve fundamental fairness bearing in mind that rigid rules of procedure, or evidence, or order of proof, will not always best serve the interests of substantial justice when applied to a post-conviction proceeding such as this.

Appellant cannot be master of his own pleadings before the District Court, inasmuch as he has repeatedly disavowed all attempts on the part of others to raise the issue of his competence at the time of his guilty plea. If appellant is indeed mentally incompetent, as the amicus memorandum suggests, we cannot rely upon his election as to whether that issue is to be raised in defense. The court below may, at its discretion, appoint counsel to represent appellant's interests, or if he persists in refusing counsel the court may appoint an amicus curiae to present the case independently. The Clerk is directed to lodge with the Clerk of the District Court copies of pertinent papers filed in this court for such use as the District Court may deem desirable.

The appeal from the denial of the motion for a new trial upon the basis of newly discovered evidence is dismissed as without merit. The order denying the § 2255 motion to vacate sentence is set aside, and the case is remanded for further proceedings not inconsistent with the opinion of the court above set forth.

Order set aside and case remanded.

BAZELON, Circuit Judge (concurring).

The question of appellant's mental condition at the time of trial first came to our notice when appellant requested authority to be brought to Washington, D. C., from the Medical Center for Federal Prisoners at Springfield, Missouri, for the purpose of arguing his appeal. Upon inquiry as to why appellant was confined at the Medical Center, we were advised that he was a "certified psychotic." We thereupon appointed a member of the bar as amicus curiae to investigate and file a memorandum.

The memorandum and other records show the following: Appellant went to trial on an indictment for attempted extortion. Midway through the Government's case, appellant announced his desire to plead guilty to a lesser offense of sending a threatening letter through the mails. Appellant addressed the court for some thirty minutes to explain why he wished to change his plea. Apparently because appellant's statements to the court indicated to the prosecutor that appellant might be suffering delusions of persecution, the prosecutor moved for a mental examination of appellant under the provisions of D.C.Code § 24-301. Appellant's counsel opposed the Government's motion. The trial judge, after hearing argument, denied the motion without prejudice to its reconsideration after receipt of a...