author: KOELSCH, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. John Andrew JACOBS, Defendant-Appellant.
    No. 74-1158.
    United States Court of Appeals, Ninth Circuit.
    Sept. 25, 1974.
    Rehearing and Rehearing En Banc Denied May 20, 1975.

      Bernard D. Morley (argued), Denver, Colo., for defendant-appellant.
    Joseph P. Covington, Asst. U. S. Atty. (argued), Tucson, Ariz., for plaintiff-ap-pellee.
   OPINION

Before MERRILL and KOELSCH, Circuit Judges, and SWEIGERT, District Judge.

KOELSCH, Circuit Judge:

This is another permutation in the complicated maze created by the Supreme Court’s reformulation of the boundary line between protected speech and unprotected obscenity in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973).

Appellant John Andrew Jacobs was indicted, tried, and convicted for violation of 18 U.S.C. § 1462 (knowingly receiving an obscene film transported in interstate commerce) after June 23, 1973, the date on which the Supreme Coui’t rendered the decision in Miller. The date of the alleged offense, however, was May 10, 1973, before Miller was decided. The jury which convicted appellant was instructed using the definition of “obscenity” enunciated in Miller, rather than the Roth-Memoirs definition which preceded it. Appellant argues that the Miller definition expanded the area of unprotected speech which is now made subject to criminal sanction under § 1462, and that retroactive application of such expanded standards to his conduct was effectively the application of ex post facto law, violating his due process right to notice of the conduct proscribed. As we agree that the Roth-Memoirs gloss on “obscenity” did not give appellant adequate notice that his conduct would be judged by the expanded standard ultimately applied, we reverse his conviction.

Before Miller was decided, § 1462 made criminal, under the Roth-Memoirs definition of “obscenity,” the knowing receipt of a film from interstate commerce if:

“(a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly wihout redeeming social value.” 383 U.S. at 418, 86 S.Ct. at 977.

After Miller, appellant’s act was criminal if:

“(a) . . . ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest . . . ; (b) . . . the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) . . . the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” 413 U.S. at 24, 93 S.Ct. at 2615.

We think it is beyond controversy that the third prong of the Miller test expanded the field of potential criminal liability; indeed, the test was explicitly adopted to ease the prosecutor’s burden. Miller, at 22, 93 S.Ct. 2607. When appellant received the film, he would have thought the act proscribed if he thought a jury would ultimately decide that the film was “utterly without redeeming social value.” He could not have known that it was a crime to receive a pruriently interesting film which a jury might later determine to be lacking in “serious literary, artistic, political or scientific value.” As appellant lacked notice of the subsequent expansion of the statute, due process fairness bars the retroactive judgment of his conduct using the expanded definition, and the conviction cannot stand.

“Indeed, an unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law, such as Art. I, § 10, of the Constitution forbids. An ex post facto law has been defined by this Court as one ‘that makes an action done before the passing of the law, and which was innocent, when done, criminal; and punishes such action,’ of ‘that aggravates a crime or makes it greater than it was, when committed.’ Calder v. Bull, 3 Dali. 386, 390, 1 L.Ed. 648. If a state legislature is barred by the Ex Post Fac-to Clause from passing such a law, it must follow that a State Supreme Court is barred by the Due Process Clause from achieving precisely the same result by judicial construction. Cf. Smith v. Cahoon, 283 U.S. 553, 565, 51 S.Ct. 582, 75 L.Ed. 1264. The fundamental principle that ‘the required criminal law must have existed when the conduct in issue occurred,’ Hall, General Principles of Criminal Law (2d ed. 1960), at 58-59, must apply to bar retroactive criminal prohibitions emanating from courts as well as from legislatures. If a judicial construction of a criminal statute is ‘unexpected and indefensible by reference t'o the law which had been expressed prior to the conduct in issue,’ it must not be given retroactive effect.”

Bouie v. City of Columbia, 378 U.S. 347, 353-354, 84 S.Ct. 1697, 1702, 1703, 12 L.Ed.2d 894 (1964) (footnote omitted). See United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 98 L.Ed. 989 (1954); Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 83 L.Ed. 888 (1939) ; Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (1926).

Moreover, appellant’s entitlement to have his conduct judged by the more favorable pr e-Miller test is implicitly mandated by the course followed by the Court in reviewing the pre-Miller conviction of the petitioner in Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974). The Court ruled that the petitioner was entitled to have his conviction reviewed using any portion of the Miller test which might benefit him, Hamling, supra, at 101-102, 94 S.Ct. at 2900, 41 L.Ed.2d at 611-612, otherwise reviewing his conviction under the more restrictive pre-Miller standards. See Hamling, supra, at 116, 94 S.Ct. at 2907, 41 L.Ed.2d at 620. See United States v. Thevis, 484 F.2d 1149, 1154-1155 (5th Cir. 1973). Should the government elect to retry appellant, he will be entitled to whatever benefit he may derive from the new tests announced in Miller. Otherwise, the instructions must conform to the definition of obscenity obtaining when appellant committed the act with which he is charged.

We turn to those of appellant’s other contentions which are not mooted by the need for a retrial.

Appellant's attack on the constitutionality of 18 U.S.C. § 1462 is now foreclosed by the decision in Hamling.

Appellant’s attack' on the two search warrants is without merit. Read in a common-sense manner, see United States v. Ventresca, 380 U.S. 102, 85 S. Ct. 741, 13 L.Ed.2d 684 (1965), the affidavit submitted to the magistrate on May 11, 1973, was sufficient to establish probable cause to believe that a violation of 18 U.S.C. § 1462 had occurred, that the items described were evidence thereof, and that the items were at the place to be searched. The description of the items — “certain documents pertaining to the interstate shipment of obscene materials including way bills, shipping orders, contracts for exhibition, receipts, cancelled bank drafts, and advertising materials and motion picture shipping containers” — was more than sufficient to circumscribe a police officer’s discretion in conducting the search. See United States v. Honore, 450 F.2d 31 (9th Cir. 1971). The search warrant issued June 12, 1973, for seizure of the film was also valid. The warrant was issued only after an adversary hearing before a neutral magistrate had established probable cause to believe the movie obscene. See Roaden v. Kentucky, 413 U.S. 496, 93 S.Ct. 2796, 37 L.Ed.2d 757 (1973); Heller v. New York, 413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745 (1973). And the affidavit accompanying the application for the warrant established probable cause to believe that the film had been received from interstate commerce on May 10, 1973. Thus, to the extent they are relevant to the specific offense alleged in the indictment, the seized items are admissible.

Appellant’s final contention is that, absent an indictment, the magistrate was without statutory jurisdiction to hold a preseizure adversary hearing to determine the probable obscenity of the film, and that therefore no valid adversary hearing was held, the warrant was invalid, and the seized film should be suppressed. We agree with the Second Circuit that F.R.Crim.P. 41, which establishes procedures and requirements for issuance of warrants (procedures which may be employed prior to indictment), may be read here to authorize the magistrate to fashion and employ procedures for determining probable cause for the issuance of the warrant. Perial Amusement Corp. v. Morse, 482 F.2d 515, 521-523 (2d Cir. 1973). See Maizels v. Van Hoomissen, 429 F.2d 982 (9th Cir. 1970) (per curiam) (Chambers, J., concurring).

The judgment of conviction is reversed, and the matter remanded for further proceedings consistent with Hamling and the views expressed herein.

       The Ilonorable William T. Sweigert, United States District Judge for the Northern District of California, sitting by designation.

      . Roth v. United States, 354 U.S. 476, 77 S. Ct. 1304, 1 L.Ed.2d 1498 (1957); A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975,16 L.Ed.2d 1 (1966).

      . As it need not prove that appellant knew the legal obscenity of the film removed from interstate commerce, knowledge of the general character or contents of the material being sufficient to meet the scienter requirement of 18 U.S.C. § 1462, Hamling v. United States, 418 U.S. 87, 121-122, 94 S.Ct. 2887, 2910, 41 L.Ed.2d 590, 622 (1974), the government contends that the Miller standards are relevant only to distinguish protected from unprotected speech. The government’s reasoning is apparently that, since appellant may be convicted on a showing that he knew the general content of the film, and since that knowledge remained the same despite a change in the legal standard, he has not been prejudiced by the constriction in the area protected by the First Amendment. The argument is spurious. The pre-Miller definition of obscenity involved a somewhat vague (although not so obscure as to violate due process series of value judgments, left to the jury for final determination. The Miller definition embodies a different series of value judgments, which at least in the third prong gives the jury a broader task, hence making the statute’s proscriptions more uncertain (although again not so vague as to violate due process, see Ham ling, supra, at 110-116, 94 S.Ct. at 2904-2907, 41 L.Ed.2d at 016-620). The fact that appellant is thereby made liable, irrespective of his belief as to whether or not he was violating the law, to a retroactive judgment that his conduct was unprotected and criminal does not mean that he is not entitled, in advance of engaging in potentially criminal conduct, to know the standard by which his conduct will be judged. Due process at least allows him to take his best guess as to what the jury may ultimately decide. And in so aiming to conform his conduct to the law’s requirements, he is entitled to rely on the target being held still.

      . Appellant’s reliance on Marcus v. Search Warrants, 367 U.S. 717, 81 S.Ct. 1708, 6 L. Ed.2d 1127 (1961), and similar cases, holding improper warrants based on the conclu-sionary opinion of a police officer that books or films are “obscene,” and requiring a prior independent judicial determination of the probable obscenity of particular items to be seized, is misplaced. Those cases seek to limit the discretion of the police to make ad hoc determinations of obscenity because such a procedure threatens to suppress protecte material. The items named in this warrant were evidentiary materials, and their seizure did not threaten to deprive the public of access to protected material.

      . We reject appellant’s contention that the seized film is inadmissible absent a showing that it is the actual print received from interstate commerce on the date alleged in the indictment. The government, if it can, may establish by other proof that a print of the same film was received from interstate commerce as alleged, and may use any copy of the film allegedly received to establish the obscenity of the film actually shipped in commerce. Whether or not the prints are identical is of course then a collateral subject for the jury’s determination.


source: Caselaw Access Project

author: TENNEY, District Judge.

license: Public Domain

text:
    Joan HULL, on behalf of herself and others similarly situated, Plaintiff-Appellant, v. CELANESE CORPORATION et al., Defendants-Appellees.
    No. 579, Docket 74-2126.
    United States Court of Appeals, Second Circuit.
    Argued Jan. 30, 1975.
    Decided March 26, 1975.

      Leonard B. Boudin, New York City (Rabinowitz, Boudin & Standard, New York City, K. Randlett Walster and Eric M. Lieberman, New York City, of counsel), for plaintiff-appellant.
    Gilbert S. Edelson, New York City (Rosenman, Colin, Kaye, Petschek, Freund & Emil, New York City, Charles A. Crum and Nadia Colin, New York City, of counsel), for defendants-appel-lees.
    Before OAKES and GURFEIN, Circuit Judges, and TENNEY, District Judge.

       United States District Judge for the Southern District of New York, sitting by designation.

   TENNEY, District Judge.

This Court today hears the appeal from an order of disqualification of plaintiff’s counsel, the law firm of Rabi-nowitz, Boudin & Standard (“the Rabi-nowitz firm”). The question at issue is whether a law firm can take on, as a client, a lawyer for the opposing party in the very litigation against the opposing party. Factually, the case is novel and we approach it mindful of the important competing interests present. It is incumbent upon us to preserve, to the greatest extent possible, both the individual’s right to be represented by counsel of his or her choice and the public’s interest in maintaining the highest standards of professional conduct and the scrupulous administration of justice.

The complaint in this action was brought by plaintiff-appellant Joan Hull (“Hull”), an employee of Celanese Corporation (“Celanese”), against Celanese alleging sex-based discrimination in employment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e et seq. In its answer, Celanese denied the material allegations of the complaint. Thereafter, the Rabinowitz firm filed a motion seeking leave for five other women to intervene as plaintiffs in the action. One of the proposed intervenors was Donata A. Delulio, an attorney on the corporate legal staff of Celanese. Celanese opposed the proposed intervention and additionally sought the disqualification of the Rabi-nowitz firm based on the risk that confidential information received by Delulio as Celanese’s attorney might be used by the Rabinowitz firm against Celanese in the prosecution of the joint Hull-Delulio claims.

The trial court denied Delulio’s motion to intervene and subsequently ordered the disqualification of the Rabinowitz firm.

Judge Owen premised the denial of intervention on the fact that Delulio had been active in the defense of this very action, thus raising a serious risk of disclosure of confidential information. He found the opportunity for even inadvertent disclosure to be ever-present.

In granting the motion to disqualify the Rabinowitz firm, Judge Owen clearly recognized three competing interests: (1) Hull’s interest in freely selecting counsel of her choice, (2) Celanese’s interest in the trial free from the risk of even inadvertent disclosures of confidential information, and (3) the public’s interest in the scrupulous administration of justice. In balancing these competing interests, the trial court acknowledged the right of Hull to counsel of her choice, but held the interests of Celanese and the public to be predominant. Based upon the relationship between Delulio and the Rabi-nowitz firm, the preparation by the Ra-binowitz firm on the motion to intervene, supporting affidavits, and amended complaint, and the contents of those documents, Judge Owen concluded:

“The foregoing contents of affidavits prepared by Delulio and the Rabi-nowitz office are some evidence, in my opinion, of the possibility that Delulio, unquestionably possessed of information within the attorney-client privilege, did in fact transmit some of it to the Rabinowitz firm, consciously or unconsciously.”

The trial court felt that the continued retention of the Rabinowitz firm would create at least the appearance of impropriety due to the on-going possibility for improper disclosure. For the reasons stated infra, we must affirm.

The unusual factual situation presented here bears repetition in some detail. Hull’s employment by Celanese began in 1963; Delulio’s employment there began in July 1972. In September of 1972, Hull filed charges with the Equal Employment Opportunity Commission (“EEOC”) against Celanese alleging sex-based discrimination in employment. Delulio was assigned to work on the defense of the Hull case in February of 1973 and her work on the case continued until September 1973. In the interim, the complaint herein was filed.

It was during September of 1973 that Hull and Delulio met socially for the first time. Two months later Delulio approached Hull to ascertain the name of the law firm representing Hull. As a result of this conversation, Delulio contacted the Rabinowitz firm on November 9. and on November 15, 1973 the Rabi-nowitz firm filed sex discrimination charges on behalf of Delulio with the EEOC. Delulio thereafter consulted with the Association of the Bar of the City of New York regarding, inter alia, the propriety of her intervention in the Hull action. By letter dated March 12, 1974, the Association of the Bar of the City of New York advised Delulio against intervention. Subsequently, the motion herein seeking intervention on behalf of Delulio and four other women was filed. Two weeks later Ce-lanese cross-moved to deny intervention and to disqualify the Rabinowitz firm.

Jurisdiction

The order of disqualification has been held by this Court to be a “final order” and hence appealable pursuant to 28 U.S.C. § 1291. Silver Chrysler Plymouth, Inc. v. Chrysler Motors Corp., 496 F.2d 800 (2d Cir. 1974) (en banc). See also General Motors Corporation v. City of New York, 501 F.2d 639, 644 (2d Cir. 1974). Therefore, jurisdiction to review the order below is clearly in this Court.

Analysis

The district court bears the responsibility for the supervision of the members of its bar. Handelman v. Weiss, 368 F.Supp. 258, 263 (S.D.N.Y. 1973); E. F. Hutton & Company v. Brown, 305 F.Supp. 371, 378 (S.D.Tex. 1969). The dispatch of this duty is discretionary in nature and the finding of the district court will be upset only upon a showing that an abuse of discretion has taken place. Richardson v. Hamilton International Corporation, 469 F.2d 1382, 1385-86 (3d Cir. 1972), cert. denied, 411 U.S. 986, 93 S.Ct. 2271, 36 L.Ed.2d 964 (1973). Moreover, in the disqualification situation, any doubt is to be resolved in ■favor of disqualification. Fleischer v. A. A. P., Inc., 163 F.Supp. 548, 553 (S.D.N. Y.1958), appeal dismissed, 264 F.2d 515 (2d Cir.), cert. denied, 359 U.S. 1002, 79 S.Ct. 1139, 3 L.Ed.2d 1030 (1959).

Factually, this case is distinguishable from our decision in Emle Industries, Inc. v. Patentex, Inc., 478 F.2d 562 (2d Cir. 1973). However, the conclusions reached in that case apply with equal validity here.

In Emle, a lawyer who had previously represented Burlington Industries, Inc. was disqualified when he attempted to represent Emle in litigation against Pa-tentex, a Burlington subsidiary. The matters at issue in the two suits were deemed to be “substantially related”. Id. at 571, citing T.C. Theatre Corp. v. Warner Bros. Pictures, 113 F.Supp. 265 (S.D.N.Y.1953). In that instance the court felt that the invocation of Canon 9 of the Code of Professional Responsibility was particularly appropriate.

In the instant case we have a divergence from the more usual situation of the lawyer switching- sides to represent an interest adverse to his initial representation (as in Emle). Here, the in-house counsel for Celanese switched sides to become a plaintiff (rather than a lawyer) on the other side. Also, here the matter at issue is not merely “substantially related” to the previous representation, rather, it is exactly the same litigation. Thus, while the cases are factually distinguishable, the admonition of Canon 9 is equally appropriate here. This is, in short, one of those cases in which disqualification is “a necessary and desirable remedy ... to enforce the lawyer’s duty of absolute fidelity and to guard against the danger of inadvertent use of confidential information . . ..” See Ceramco, Inc. v. Lee Pharmaceuticals, 510 F.2d 268, 271 (2d Cir. 1975).

The Rabinowitz firm argues that they had never worked for Celanese and therefore never had direct access to any confidences of Celanese. They maintain that they carefully cautioned Delulio not to reveal any information received in confidence as an attorney for Celanese, but rather to confine her revelations to them to the facts of her own case. This, they contend would avoid even an indirect transferral of confidential information. They conclude that since they never got any information either directly or indirectly, they could not use the information either consciously or unconsciously-

This argument, somewhat technical in nature, seems to overlook the spirit of Canon 9 as interpreted by this Court in Emle. We credit the efforts of the Rabinowitz firm to avoid the receipt of any confidence. Nonetheless, Emle makes it clear that the court need not “inquire whether the lawyer did, in fact, receive confidential information. . ..” Emle Industries, Inc. v. Patentex, Inc., supra, 478 F.2d at 571. Rather, “where ‘it can reasonably be said that in the course of the former representation the attorney might have acquired information related to the subject matter of his subsequent representation,’ T.C. Theatre Corp., supra [113 F.Supp.], at 269 (emphasis supplied), it is the court’s duty to order the attorney disqualified.” Id. at 571. The breach of confidence would not have to be proved; it is presumed in order to preserve the spirit of the Code.

The Rabinowitz firm had notice that Delulio had worked on the defense of the Hull case and should have declined representation when approached. Had Delulio joined the firm as an assistant counsel in the Hull case, they would have been disqualified. Here she joined them, as it were, as a client. The relation is no less damaging and the presumption in Emle should apply.

Our holding herein is distinguishable from the result reached in Meyerhofer v. Empire Fire and Marine Insurance Co., 497 F.2d 1190 (2d Cir.), cert. denied, 419 U.S. 998, 95 S.Ct. 314, 42 L.Ed.2d 272 (1974). There it was held that disqualification was unnecessary since the lawyer had acted properly in defending himself “against ‘an accusation of wrongful conduct.’ ” Id. 497 F.2d at 1194-95.

The novel factual situation presented here dictates a narrow reading of this opinion. This decision should not be read to imply that either Hull or Delulio cannot pursue her claim of employment discrimination based on sex. The scope of this opinion must, of necessity, be confined to the facts presented and not read as a broad-brush approach to disqualification.

The preservation of public trust both in the scrupulous administration of justice and in the integrity of the bar is paramount. Recognizably important are Hull’s right to counsel of her choice and the consideration of the judicial economy which could be achieved by trying these claims in one lawsuit. These considerations must yield, however, to considerations of ethics which run to the very integrity of our judicial process.

Accordingly, the order of the district court is affirmed.

      . 73 Civ. 3725 (S.D.N.Y., July 12, 1974).

      . The motion in addition to the request for intervention, also sought (1) an order permitting the filing of an amended complaint and (2) an order that the action be maintained as a class action. \

      . The motion, in addition to the request for disqualification, also sought (1) an order denying plaintiffs motion for intervention and (2) an order striking the class action allegations.

      . 73 Civ. 3725 (S.D.N.Y., May 6, 1974).

      . See n. 1, supra.

      . The trial court noted an interchange of correspondence between Delulio and the Association of the Bar of the City of New York wherein Delulio sought advice regarding, inter alia, the propriety of her intervention in the Hull case. The Association advised against intervention. See 73 Civ. 3725 (S.D.N.Y., May 6, 1974), at 2-3. These letters are set out in full in the Joint Appendix at 125a-132a.

      . 73 Civ. 3725 (S.D.N.Y., July 12, 1974), at 5.

      . Judge Owen initially considered holding a hearing to determine whether there had been actual disclosures, but decided in the negative. He concluded that “a hearing would be self-defeating since it would be necessary to reveal to the Rabinowitz firm in some specificity the extent of Celanese’s disclosures to Miss Delu-lio in the course of ascertaining to what extent, if any, that information reached them.” Id. at 6.

      . Delulio characterized her work on the Hull case as follows:
      “During the six months that I worked on that case I studied the general regulations of the Equal Employment Opportunities Commission, its procedures and the law on sex discrimination generally. I obtained specific information from the personnel department at the division concerning salaries and hiring practices. I attended on [sic] interview of the employee’s [Hull’s] superior, and attended one interview of another division employee. I participated in a conference with outside consultants hired by the corporation to prepare statistical information regarding employment within the division. I obtained inter-office memoranda and prepared a memorandum myself regarding the case.”
      73 Civ. 3725 (S.D.N.Y., July 12, 1974), at 3.

      . Filed on August 27, 1973.

      . See n. 6, supra.

      . Canon 9 of the Code of Professional Responsibility states: “A lawyer should avoid even the appearance of professional impropriety.”
      While the Code of Professional Responsibility has not been formally adopted in the Southern District, its salutary provisions have consistently been relied upon by the courts of this district and circuit in evaluating the ethical conduct of attorneys. See, e. g., General Motors Corporation v. City of New York, 501 F.2d 639 (2d Cir. 1974); Emle Industries, Inc. v. Patentex, Inc., 478 F.2d 562 (2d Cir. 1973); Handelman v. Weiss, 368 F.Supp. 258 (S.D.N.Y. 1973).


author: EUGENE A. WRIGHT, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. John Peter PERRI, Defendant-Appellant.
    No. 74-2801.
    United States Court of Appeals, Ninth Circuit.
    March 27, 1975.

      Oscar B. Goodman, Las Vegas, Nev., for defendant-appellant.
    V. DeVoe Heaton, U. S. Atty., for plaintiff-appellee.
    Before BROWNING and WRIGHT, Circuit Judges, and ZIRPOLI, District Judge.

       Of the Northern District of California.

   OPINION

EUGENE A. WRIGHT, Circuit Judge:

Following his conviction on a charge of possession of goods stolen from an interstate shipment [18 U.S.C. § 659], appellant was sentenced to a term of ten years’ confinement. His appeal raises the question: Did the district court err in basing its sentence upon allegations contained in “confidential reports” supplied to the court by the government, the defendant being denied access to the reports and an opportunity to rebut them. The colloquy, following imposition of sentence, is set forth in the margin. We remand for resentencing.

Following the jury verdict of a conviction, a presentence report was prepared and submitted to the sentencing judge, and defendant and his counsel were given access to that information. It did not contain the confidential information to which the sentencing judge referred. It did disclose that an indictment in the district of Hawaii had been returned against the defendant and seven others and stated:

“On January 25, 1974, Defendant was indicted in United States District Court, Honolulu, Hawaii, with seven associates, some of whom have been identified with organized crime, in a two-count indictment charging Conspiracy, and Sale of Heroin. . . . ”

Presentence Report p. 14.

After imposition of sentence, the defendant moved the court to disclose the information which had been considered at the time of sentence, for an evidentia-ry hearing to determine the truth of allegation as to association with organized crime, and for modification of sentence. Without a hearing, these motions were denied, and the defendant was allowed to move pursuant to Rule 35 of the Federal Rules of Criminal Procedure to modify the sentence. The court’s order provided in part that it would consider a motion to modify

“. . if the defendant can furnish this Court with facts which show, or tend to show, that this Court’s conclusions announced in open court at the time of sentencing, to the effect that the defendant is associated with organized crime, are wrong, . . . ”

The burden placed upon the defendant-appellant and his counsel was impermissible. By the court’s order they were obliged to rebut allegations not contained in the presentence report, nor in any other document available to the defense, if indeed there was such a document. The government responds:

“Appellee’s counsel surmises the ‘Confidential Report’ contains information relative to that Hawaii indictment.”

We are unwilling to join in any such conjecture. Nor do we think this case is governed by Fernandez v. Meier, 432 F.2d 426 (9th Cir. 1970). We said there that the right to examine a presentence report is not one of constitutional magnitude and that a trial judge may, in his discretion, deny an accused an opportunity to inspect the report. Id. at 427.

The case is distinguishable. In Fernandez, we examined the report and found ■ that it contained both favorable and unfavorable information but none that could be considered unduly prejudicial to the defendant. Further, the defendant in Fernandez had been convicted on eight counts and sentenced to a total of almost 12 years where the maximum sentence had been a possible 75 years. We felt that no prejudice had resulted.

By way of contrast, the district court in the case before us made it abundantly clear that the confidential report was the basis for imposing the maximum sentence. That very issue was addressed in United States v. Weston, 448 F.2d 626 (9th Cir. 1971). There, the sentencing judge relied in part on assertions contained in the presentence report which were allegedly supported by reports of the Bureau of Narcotics and Dangerous Drugs. But those reports were not shown to Weston or her counsel and did not corroborate the allegations in the presentence report.

In vacating the sentence to the maximum term, we remanded and discussed a variety of circumstances in which appellate courts have remanded for resentenc-ing, having decided that certain types of information should not have been considered in sentencing. United States v. Weston, supra, at 631-633. We said:

“In addition to the difficulty of ‘proving a negative,’ we think it a great miscarriage of justice to expect Weston or her attorney to assume the burden and expense of proving to the court that she is not the large scale dealer that the anonymous informant says that she is.”

Weston at 634.

How much disclosure should be made of presentence reports and other “confidential information” has been the subject of extensive debate. Opponents of disclosure argue that it would dry up sources of information and be harmful to rehabilitative efforts. Those favoring disclosure are concerned with minimizing errors in the information relied on for sentencing and with preserving the fairness of the system.

Section 4.4(a) of the American Bar Association Standards Relating to Sentencing Alternatives and Procedures (Approved Draft 1968) provides that fundamental fairness to the defendant requires that he and his attorney be told the substance of all derogatory information which adversely affects his interests and which has not otherwise been disclosed in open court.

This principle may be applied if the sentencing court permits the defense counsel to inspect the report. The court may excise such parts as are not relevant: a medical opinion which might seriously disrupt a rehabilitation program, or the identification of sources which had given information on a promise of confidentiality. Id. § 4.4(b).

The principles underlying these standards are sound. They persuade us that fairness to the defendant in this case requires that he be apprised in detail of the nature of the adverse information on which the court relied in passing sentence. Proper steps can be taken to safeguard the identity of the informant, if that is necessary. As we stated in Weston :

“A rational penal system must have some concern for the probable accuracy of the informational inputs in the sentencing process.”

448 F.2d at 634.

We do not retreat from the general principle that we will refuse to review sentences in cases where it is contended that sentences within the statutory limit are cruel and unusual or that the sentencing judge considered evidence of other crimes even though the defendant was ne.ver brought to trial or was acquitted, or his conviction was reversed on appeal. United States v. Wilson, 506 F.2d 521 (9th Cir. 1974), United States v. Atkins, 480 F.2d 1223 (9th Cir. 1973).

We affirm the judgment of conviction and remand for resentencing. The district judge will disclose the basis and the nature of the adverse information to which exception was taken or will disregard it.

Remanded for further proceedings consistent with this opinion.

      . “THE COURT: Now, I’ve imposed the maximum sentence. It may be a shock to counsel and the defendant, but I’m doing so because at this point I’m satisfied that this defendant has recently been identified as a representative of organized crime in this city, and I will consider motion to modify if Mr. Goodman wants to file one. If he can dissuade me from that, I will probably substantially modify the sentence. This is the reason I’m imposing the maximum sentence here because of the association of this defendant. Confidential reports that the Court has received make it quite clear, in reports I’ve received from the Task Force, that this man is affiliated with organized crime, and when I’m satisfied with that, I’ll impose only one sentence on any defendant, and that’s the maximum.
      “MR. GOODMAN: Your Honor, I realize what the Court has done, and ask that if the Court is correct, I’m shocked. And I can state to the Court that there was nothing in the presentence report which would have indicated this to either myself or to the defendant.
      “THE COURT: Well, you had your own resources. If this isn’t true, I’m sure you can make a showing to that effect. But I can’t divulge to you the confidential report I have. But I felt in fairness that I should explain to you as his counsel why I’m imposing the maximum sentence.”
      R.T. pp. 355-356.

      . The Model Penal Code and the Model Sentencing Act similarly require disclosure, with provisions for excerpting irrelevant material and for safeguarding the identity of informants in appropriate circumstances. American Law Institute Model Penal Code § 7.07 (Official Draft 1962); Advisory Council of Judges of the National Council on Crime and Delinquency, Model Sentencing Act, Revised Edition § 4 (1972).


author: BUTZNER, Circuit Judge:

text:
    INTERSTATE COMMERCE COMMISSION, Appellee, v. George T. APPLEYARD, III, and James W. Cain, Appellants.
    No. 74-1342.
    United States Court of Appeals, Fourth Circuit.
    Argued Dec. 4, 1974.
    Decided April 3, 1975.

      Norman B. Smith, Greensboro, N. C. (Smith, Carrington, Patterson, Follín & Curtis, Greensboro, N. C., on brief), for appellants.
    J. Preston Proffitt, Jr., Regional Counsel, Interstate Commerce Commission (Bernard A. Gould and Robert S. Turk-ington, Attys., Interstate Commerce Commission, on brief), for appellee.
    Before BOREMAN, Senior Circuit Judge, and BUTZNER and FIELD, Circuit Judges.
   BUTZNER, Circuit Judge:

In order to test the constitutionality of the Interstate Commerce Commission’s policies regulating interstate truck transportation, George T. Appleyard and James W. Cain deliberately violated Part II of the Interstate Commerce Act, 49 U.S.C. § 301 et seq. The district court enjoined them from further violations, as provided in 49 U.S.C. § 322. Appleyard and Cain appeal the injunction on the ground that the I.C.C.’s application of the Act deprives them of liberty without due process of law. We affirm the district court and deny them relief because they have not shown that Appleyard would be unlawfully refused an operating permit were he to seek one.

The facts are simple. Except for businesses hauling their own goods and carriers of unprocessed farm products, every carrier of goods by truck in interstate commerce must have either a permit or a certificate of convenience and necessity issued by the I.C.C. 49 U.S.C. §§ 303(b)(7) and (c), 306(a), 309. Apple-yard, an independent truck owner who hauls farm products, and Cain, the editor of a magazine for truckers, contracted for Appleyard to carry a load of chipboard from North Carolina to Washington, D. C. Appleyard, who has neither a certificate nor a permit, carried the load and then reported the trip to the I.C.C., which subsequently obtained the injunction.

Appleyard and Cain do not claim that the permit requirements of Part II of the Interstate Commerce Act are facially unconstitutional. Instead, they argue that the present criteria for permits irrationally restrict Appleyard’s liberty to engage in interstate trucking. In support of this contention, they presented expert testimony, mostly uncontradicted, to the effect that the present policy of restricted entry and limited competition favors established carriers over newcomers, leads to extravagant overcapacity, requires empty backhauls, increases operating costs, wastes fuel, and causes excessive freight .rates.

Appleyard and Cain urge that by not instituting a policy of free entry and price competition, the I.C.C. has injured both the public and small truckers without corresponding public benefits and that it has failed to follow the statutory National Transportation Policy, which controls its discretion. Since, in their view, the present operating permit system is of no public benefit and is beyond the I.C.C.’s authority, they assert that Appleyard cannot be enjoined to comply with it. Despite the appellants’ economic arguments, we affirm the district court for two reasons.

In the first place, the record does not show that Appleyard has ever been or would be refused an operating permit, or indeed that he has ever applied for one. Appleyard concedes that Congress may require permits for interstate motor carriers. Since he does not attack the statute as unconstitutional on its face, we cannot presume that a request for a permit would be futile. Until he has shown that he cannot obtain a permit under the existing regulations, he has suffered no legally cognizable injury from this injunction. Lehon v. Atlanta, 242 U.S. 53, 37 S.Ct. 70, 61 L.Ed. 145 (1916); see Smith v. Cahoon, 283 U.S. 553, 562, 51 S.Ct. 582, 75 L.Ed. 1264 (1931) (dictum).

Secondly, the federal courts will not review legislation or administrative action on the basis of their views of reasonable economic policy. North Dakota State Board of Pharmacy v. Snyder’s Drug Stores, Inc., 414 U.S. 156, 94 S.Ct. 407, 38 L.Ed.2d 379 (1973); Ferguson v. Skrupa, 372 U.S. 726, 83 S.Ct. 1028, 10 L.Ed.2d 93 (1963). The appellants’ reliance on United States Dept. of Agriculture v. Murry, 413 U.S. 508, 93 S.Ct. 2832, 37 L.Ed.2d 767 (1973), and United States Dept. of Agriculture v. Moreno, 413 U.S. 528, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973), is misplaced. These cases do not review legislative policy objectives. Instead, they test the procedural due process of implementing policy by utilizing certain statutory presumptions. Appleyard’s claim is no more than a contention that the public would be better off if the I.C.C. modified its control of interstate motor transportation. This may well be true. Congress, however, has given the Commission the authority to reconcile the overlapping and conflicting goals of the National Transportation Policy. See Schaffer Transportation Co. v. United States, 355 U.S. 83, 92, 78 S.Ct. 173, 2 L.Ed.2d 117 (1957).

Affirmed.


author: PER CURIAM.

text:
    UNITED STATES of America, Appellee, v. Robert L. THOMPSON, Appellant.
    No. 74-1873.
    United States Court of Appeals, Eighth Circuit.
    Submitted March 11, 1975.
    Decided April 1, 1975.

      Stephen H. Gilmore, Clayton, Mo., for appellant.
    Murray S. Horwitz, Atty., Tax Div., Dept, of Justice, Washington, D. C., for appellee.
    Before GIBSON, Chief Judge, CLARK, Associate Justice, Retired, and LAY, Circuit Judge.

       Associate Justice Tom C. Clark, United States Supreme Court, Retired, sitting by designation.

   PER CURIAM.

Defendant Robert L. Thompson was convicted by a jury of willful failure to file his 1969 and 1970 income tax returns, a violation of' 26 U.S.C. § 7203 (1970), and sentenced to six months incarceration to be followed by three years probation. On appeal he challenges the sufficiency of the evidence to prove a willful failure to file, and contends that the District Court erred in admitting evidence of his late filing in prior tax years and excluding two offered defense exhibits. We affirm.

The defendant argues that the Government failed to prove a “voluntary, intentional violation of a known legal duty” as required by United States v. Bishop, 412 U.S. 346, 360, 93 S.Ct. 2008, 2017, 36 L.Ed.2d 941 (1973). Our review of such a claim is limited to determining whether the evidence, when viewed in a light most favorable to the Government, was sufficient to submit the issue of guilt to the jury. United States v. May, 419 F.2d 553, 555 (8th Cir. 1969). After a careful review of the record, we conclude that the evidence was sufficient for the jury to find beyond a reasonable doubt that the defendant was required to file 1969 and 1970 returns and willfully failed to do so when required.

Thompson, a 51-year-old college graduate, has operated a bookkeeping and tax service since 1951, and is familiar with filing requirements for federal tax returns. On August 4, 1971, he told the IRS by affidavit that his 1969 return was filed in July, 1970, and that his 1970 return was filed in July, 1971. The evidence showed, however, that he mailed his 1970 return the following day, August 5, 1971, and that he filed his 1969 return five months later, January 4, 1972. This and other circumstantial evidence of late filing in 1965-68 was sufficient as a whole to support the verdict. United States v. MacLeod, 436 F.2d 947 (8th Cir.), cert. denied, 402 U.S. 907, 91 S.Ct. 1378, 28 L.Ed.2d 647 (1971). Thus, despite Thompson’s efforts to detail severe marital problems, hospitalization and extensive travel to negate his willfulness, the jury properly could and did conclude that his failures to file timely were willful. United States v. Bengimi-na, 499 F.2d 117, 120 (8th Cir. 1974). See Spies v. United States, 317 U.S. 492, 500, 63 S.Ct. 364, 87 L.Ed. 418 (1943).

The defendant also asserts as error the admission of his tax returns for 1965-68 and other evidence to show a pattern of late filing in years prior to those charged. Such relevant evidence of similar crimes or misconduct to prove intent in a criminal trial is admissible. Rule 404(b), Fed.R.Ev.; United States v. Ming, 466 F.2d 1000, 1009 (7th Cir.), cert. denied, 409 U.S. 915, 93 S.Ct. 235, 34 L.Ed.2d 176 (1972). The evidence here does not appear to be prejudicial, and further, any prejudice that might occur is outweighed by its probative value. See Rule 403, Fed.R.Ev. Evidence that defendant’s late filings in prior years went unprosecuted may have evoked sympathy in defendant’s favor if properly argued to the jury.

Finally, defendant complains of the exclusion of two exhibits offered to show that the IRS on occasion misplaces filed returns before processing them. These exhibits had no connection with defendant’s returns. We find no error in the trial court’s exclusion of the exhibits as irrelevant. See Rules 401 and 403, Fed.R.Ev.

The judgment of conviction is affirmed.

      . Although the Federal Rules of Evidence for United States Courts and Magistrates, Pub.L. No. 93-595 (Jan. 2, 1975), are not effective until July 1, 1975, they are in the instances here cited not contrary to case law. Hence, we feel it appropriate to cite them as a primary source of evidentiary rules.

      . Our consideration of defendant’s challenge to the court’s instruction permitting the jury to consider the evidence of late filing in prior .years as relevant to its determination of willfulness is limited to a search for plain error because defendant failed to raise the point below. Rule 52(b), Fed.R.Crim.P. We find no error in the instruction.

      . The exhibits were IRS form letters mailed to defendant’s tax clients inquiring whether they filed returns.


text:
    Russell A. PATTERSON, Appellant, v. A. L. LOCKHART, Superintendent, Cummins Unit, Arkansas Department of Correction, Appellee.
    No. 74-1670.
    United States Court of Appeals, Eighth Circuit.
    Submitted March 12, 1975.
    Decided April 3, 1975.

      H. Clay Moore, Little Rock, Ark., for appellant.
    Jack T. Lassiter, Asst. Atty. Gen., Little Rock, Ark., for appellee.
    Before GIBSON, Chief Judge, CLARK, Associate Justice, Retired, and LAY, Circuit Judge.

       Associate Justice Tom C. Clark, United States Supreme Court, Retired, sitting by designation.

   PER CURIAM.

This is an appeal from the denial of a writ of habeas corpus sought by an Arkansas state prisoner. The petitioner Russell A. Patterson was convicted in an Arkansas state court of possession of stolen property and his conviction was upheld by the Arkansas Supreme Court. Patterson v. State, 253 Ark. 393, 486 S.W.2d 19 (1972). He based his claim for habeas relief on alleged constitutional deficiencies in the proceedings against him: (1) that the search of his farm house which produced the stolen property entered in evidence against him was illegal since the affidavit upon which the search warrant was granted failed to establish probable cause; (2) that discussions concerning items not offered or received in evidence occurred between law officers and jurors outside the courtroom during the course of his trial; and (3) that the sentence imposed upon him amounted to cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution. The district court denied relief on the first and third grounds and found that petitioner had failed to exhaust his state remedies as to the second. We reverse and remand for further proceedings.

During oral argument before this court the State of Arkansas confessed error, conceding the invalidity of the affidavit which supported the search warrant. We agree that it was insufficient to demonstrate probable cause for the search warrant. The Attorney General now points out, however, that at the time the warrant was issued, Arkansas law permitted the state to reinforce such an affidavit when attacked in a habeas proceeding by demonstrating that oral testimony establishing probable cause was also presented to the magistrate. The state now seeks permission to take additional testimony to show probable cause. The rule in Arkansas has been changed by statute and such reinforcement is no longer possible. See Ark. Stats.Ann. § 43-205 (1971); Cockrell v. State, 505 S.W.2d 204 (Ark.1974). Whether this statute bars reinforcement of a warrant for a search conducted pri- or to its enactment is essentially a question of state law which should be decided by an Arkansas court. Cf. United States v. Berkus, 428 F.2d 1148 (8th Cir. 1970).

Upon the confession of error, the district court’s denial of the petition is therefore vacated and the cause is remanded to the district court. The district court shall request the State of Arkansas to immediately schedule a plenary hearing in the state court upon all questions pertaining to the validity of the search warrant, as well as to the other constitutional issues alleged in the petition. The district court shall retain jurisdiction until the state has complied with this order. In the event of compliance the habeas petition should be dismissed without prejudice to the state court proceeding; in the event of noncompliance the petition should be granted and a writ of habeas corpus issued.

Judgment vacated and the cause remanded.

      . Petitioner was found guilty of three counts of receiving stolen property and was sentenced to 21 years on each count, with the sentences to run consecutively. At oral argument a separate issue emerged concerning the punishment imposed. There was apparently no proof by the state as to when the stolen property was received by the defendant. Thus, there is some question whether he could properly be charged and sentenced on three separate counts. Since the case is to be remanded to the state court, however, this issue can be explored anew in that forum and it is unnecessary for us to reach it at this time.

      . It is difficult to understand why the state has failed to confess error until this late date. The search warrant was defended in the state courts as well as in the federal district court. The state even defended the legality of the search in briefs filed in this court. Three affidavits were presented in support of the warrant. They were all conclusory and clearly insufficient. The most complete of the three stated only:
      The undersigned being duly sworn deposes and says: That he has reason to believe that on the premises known as J. D. Flake Farm located on Route 2, Morrilton, described as Section 21, Township 7 North, Range 15 West in the County of Conway, State of Arkansas, there is now being concealed certain property, namely new Atlas Tires, boxes of Atlas dry charge batteries, boxes of Esso oil, and also certain credit cards of Kurt P. Herz and Frieda Schurger, and other personal property of the said Kurt P. Herz and Frieda Schurger which are items observed by Carl Stobaugh and Dick Daniels, June 1, 1971, which were on the above described premises, and other personal property reported stolen in other states, which was not necessarily visible, but information leads to the conclusion that said items are on the premises.
      And that the facts tending to establish the foregoing grounds for issuance of a Search Warrant are as follows: that the above items have been reported stolen by other owners, and there is reason to believe that such items are upon said property.

      . Since the state has confessed error as to the validity of the search, we need not pass on the other issues raised. We encourage petitioner’s counsel, however, to amend his petition in the state court to indicate all the claims now raised and which possibly could be raised, thus avoiding any questions which might later arise as to exhaustion of state remedies.


author: VAN DUSEN, Circuit Judge.

text:
    FRANKI FOUNDATION COMPANY, a corporation v. ALGER-RAU & ASSOCIATES INC., a corporation, Appellant.
    No. 74-1769.
    United States Court of Appeals, Third Circuit.
    Argued Feb. 24, 1975.
    Decided March 27, 1975.

      Thomas P. Mulligan, Kathleen B. Burke, Jones, Day, Dockley & Reavis, Cleveland, Ohio, for appellant.
    Charles R. Taylor, Jr., Moorhead & Knox, Pittsburgh, Pa., for appellee.
    Before VAN DUSEN, GIBBONS and HUNTER, Circuit Judges.
   OPINION OF THE COURT

VAN DUSEN, Circuit Judge.

This appeal challenges a December 10, 1973, district court judgment in favor of plaintiff and against defendant in the amount of $24,837.00 ($21,979.65, with interest), together with costs, which was entered on the basis of answers by the jury to two of five special questions submitted to the jury by the trial judge. The judge had made clear to the jury that if the jurors found that there had been substantial performance of the plaintiff’s obligations under the contract described in Question 1, the jury should then determine the amount of the unpaid balance as described in Question 2. The judge then proceeded to charge concerning Question 3, as follows:

“Now, the third question about which I have instructed you is did Alger-Rau incur expense to complete the contract or incur additional expense in the performance of its own contract resulting from increased costs which flowed directly from the failure of Franki Foundation to perform its contract on time? Answer yes or no.
“This is the question about whether or not Alger-Rau had proven by the fair preponderance of the evidence that they are or are not entitled to the $38,000 which they’re claiming.
“Now, if you would decide that they were entitled to the $38,000 which they are claiming, then you would have to go to question 4, which is what amount.”
(N.T. 32)

When the jury returned its verdict, the transcript reveals that the following took place:

“THE COURT: Ladies and gentlemen of the jury, have you reached a verdict?
“THE FOREMAN: We have, your Honor.
“THE COURT: Would you transmit the verdict to the clerk?
“Now, ladies and gentlemen of the jury, you have answered question one as yes.
“You have answered question two as $21,979.65 plus interest, and that is what you intend the verdict to be in favor of the plaintiff for $21,979.65. Is that correct?
“THE FOREMAN: Yes, your Hon- or.
“THE COURT: And so say you all?
“(Whereupon, the jurors indicated affirmatively.)
“THE COURT: Now, ladies and gentlemen of the jury, that is the way that the Court will record the verdict. We will charge the interest, as I told you before, and will mold the verdict in accordance with those directions.
“Now, you are requested to report to the jury assignment room at nine o’clock Monday morning. It was a pleasure to have you in this courtroom.
“(Whereupon, at 11:51 o’clock a.m., the court was recessed.)”
(N.T. 2-3)

After the jury had been discharged, the defendant filed a motion for new trial and a motion for judgment n.o.v. on December 13, 1973. On December 14, 1973, the defendant filed a supplemental motion for new trial and the plaintiff filed its reply to such motions on December 20, 1973. On March 24, 1974, counsel for defendant filed a motion to withdraw his appearance, alleging the defendant had expressed dissatisfaction with his services and repeatedly refused to pay a substantial outstanding bill “representing a considerable amount of time and effort on the part of counsel.” On April 8, 1974, counsel presently retained by defendant wrote a letter to the court, which concluded:

“I would respectfully ask the Court to consider these motions [filed by trial counsel] as presented, without any additional memorandum from or oral argument on behalf of defendant, and that the Court enter such order as the Court feels to be appropriate.”

The above April 8 letter states that the post-trial motions “describe in some detail the matters relied upon by defendant in support of the motions.” On April 15, 1974, the district court entered an order reciting the foregoing developments and containing this language, inter alia:

“It further appearing that at the time set for argument in the above proceeding, Counsel failed to appear, to present a Brief to the Court, or to otherwise prosecute the Motion for Judgment N.O.V. and Motion for a New Trial, IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that the Motions for a New Trial and for Judgment N.O.V. be and the same are hereby denied.”

On May 15, 1974, defendant filed notice of appeal.

After careful consideration of the problem presented by the foregoing record, as well as F.R.Civ.P. 49 and Iacurci v. Lummus Co., 387 U.S. 86, 87 S.Ct. 1423, 18 L.Ed.2d 581 (1967), we have decided that the above-mentioned judgment of the district court must be vacated and the case remanded with directions to the district court to grant defendant a new trial, at least on the issues covered by interrogatories 3 — 5.

Iacurci involved a wrongful death action in which petitioner, whose husband had been killed while using a “skip hoist,” claimed that the hoist had been negligently designed by respondent. This question was submitted to the jury in the form of a special interrogatory, with the provision that if the jury found negligent design, it was to “indicate which, if any,” of five proposed findings it had made in reaching its conclusion. The jury returned a special verdict for petitioner, but answered only one of the five subsections of the interrogatory, failing to answer the other four. The trial judge denied respondent’s post-trial motions, and respondent appealed. The Court of Appeals interpreted the jury’s failure to answer the four subsections as meaning that respondent’s “negligence had not been established in those other respects,” Iacurci v. Lummus Company, 340 F.2d 868, 870-71 (2d Cir. 1965), and, having found insufficient evidence to support the jury’s finding of negligence as stated in the fifth subsection, reversed and directed the district court to enter judgment for the respondent.

The Supreme Court did not share the same confidence as to the meaning of the unanswered interrogatories and declared that the Court of Appeals should have remanded the case “to the Trial Judge, who was in the best position to pass upon the question of a new trial in light of the evidence, his charge to the jury, and the jury’s verdict and interrogatory answers.” Iacurci v. Lummus, Co., 387 U.S. at 88, 87 S.Ct. at 1424.

As relates to the instant case, we are not unmindful of the fact that the failure of the jury to answer Question 3 had been presented to the district court before entry of its April 15, 1974, order quoted above. However, since the post-trial motions did not cite Iacurci, we have no way of knowing whether the trial judge’s attention was directed to the possibility that Question 3 might not have been answered because the jurors were “unable to agree on [the issue]” presented by that question, in which event the defendant would have been entitled to a new trial, as plaintiff concedes. 387 U.S. at 87—88, 87 S.Ct. 1423, 18 L.Ed.2d 581. Alternatively, the jury might not have answered Question 3 because it had assumed that its answer to Question 1 had obviated the need to answer Question 3, even though the trial judge had instructed the jury to answer “each of the questions” (N.T. 35; see also N.T. 20, 28-30, 32 & 43—Doc. 53 in W.D.Pa. Civil No. 73-103).

These possible explanations for the unanswered interrogatories 3 and 4 are particularly worthy of consideration since Question 3, as written, did not conform to the charge of the trial court: the key words “on time” found at the end of the question as read to the jury during the charge are missing from the written interrogatory as taken to the jury deliberating room (N.T. 32 and 51a). Thus, Question 3 may not have been properly framed for the jury to adequately determine the factual issues essential to the judgment. Cf. Kornicki v. Calmar Steamship Corporation, 460 F.2d 1134, 1139 (3d Cir. 1972).

For the trial judge to have entered judgment on the verdict, he apparently first either (a) supplied his own answer to Question 3, or (b) assumed that the jurors answered Question 3 in the negative, due to either its omissions or the belief that the need to answer this question had been eliminated by the jury’s answer to Question 1. Iacurci indicates that either course would have been improper, 387 U.S. at 87—88, 87 S.Ct. 1423, 18 L.Ed.2d 581. See also Union Pacific Railroad Co. v. Bridal Veil Lumber Co., 219 F.2d 825, 831-32 (9th Cir. 1955), cert. denied, 350 U.S. 981, 76 S.Ct. 466, 100 L.Ed. 849 (1956).

Plaintiff-appellee claims that while Iacurci may govern “the ordinary case,” the facts of the instant appeal present a special situation, viz., by abandoning its post-trial motions appellant has waived its right to seek relief in this court. Thus, appellee argues that a failure to prosecute post-trial motions has the same effect upon a subsequent appeal as a failure to raise certain issues in motions actually filed. In respect to the latter, the rule has evolved that, absent exceptional circumstances, an issue not raised in the district court will not be heard on appeal. Bethlehem Mines Corp. v. United Mine Wkrs. of Amer., 494 F.2d 726, 735 (3d Cir. 1974); Kappel v. United States, 437 F.2d 1222, 1224 (3d Cir.), cert. denied, 404 U.S. 830, 92 S.Ct. 71, 30 L.Ed.2d 59 (1971). But this rule is only a rule of practice and may be relaxed whenever the public interest or justice so warrants. O’Neill v. United States, 411 F.2d 139, 143-44 (3d Cir. 1969).

Furthermore, the rationale underlying this rule is not necessarily applicable to an instance wherein a party merely fails to brief and argue its post-trial motions. This is so because the objective of these motions is to call to the trial court’s attention an alleged mistake in the judgment and effect a ruling thereon, which “might entirely obviate the need of an appeal.” Welch & Corr Construction Corp. v. Wheeler, 470 F.2d 140, 141 (1st Cir. 1972). In the case now before this court, appellant’s post-trial motions served this purpose by detailing objections to the court’s judgment,' including the failure of the jury to answer Question 3, notwithstanding the fact that appellant failed to completely prosecute the motions. Thus, this issue of the failure to answer Question 3 is not raised for the first time on appeal. The trial judge was aware of these objections at the time he denied appellant’s motions, and he could have ruled otherwise. While a court is not obliged to examine grounds for post-trial motions which are advanced in detail therein, but neither briefed nor argued, courts have at times done so. See, e. g., Solar Fuel Co. v. United Mine Wkrs. of Amer., 346 F.Supp. 789, 798 (W.D.Pa.1972), aff’d 481 F.2d 1399 (3d Cir. 1973), cert. denied, 416 U.S. 909, 94 S.Ct. 1617, 40 L.Ed.2d 114 (1974). Cf. Clay v. Southern Railway Co., 284 F.2d 152, 154 (5th Cir. 1960); Lebeck v. William A. Jarvis, Inc., 250 F.2d 285, 289-90 (3d Cir. 1957).

Appellee’s contention that appellant has waived its right to appeal through abandonment presupposes the prosecution of post-trial motions to be a prerequisite to an appeal. While appellate courts have favored the use of post-trial motions to assure the efficient operation of the judicial process and to provide “the district court an opportunity to assist [reviewing courts] by furnishing its views, if it has something relevant to contribute,” Welch & Corr Construction Corp. v. Wheeler, supra at 141, of 470 F.2d, the right to appeal is not conditioned upon the filing and prosecution of post-trial motions. In fact, there are many instances in which the filing of such motions would be an unnecessary and/or futile task. Id.

Finally, we have concluded that a remand of the case to the district court for determination by it of the grant of a new trial on the issues covered by interrogatories 3-5 would not be appropriate on the facts in this record, because the new trial motion has already been affirmatively called to the attention of the district court as noted above. In 5A Moore’s Federal Practice If 49.03[4], at page 2217, the author says:

“[I]f the jury fails to find on an issue actually submitted to it, since the right to jury trial thereon has not been waived, a new trial, at least as to such issue, is necessary . . . .”

In the Bridal Veil Lumber Co. case, supra, which was cited with approval in Iacurci, supra at 88, of 387 U.S., 87 S.Ct. 1423, 18 L.Ed.2d 581, the court said at pp. 831-32 of 219 F.2d:

“[I]t was error in the face of the unanswered question for the trial court to thereafter ‘go it alone’ and dispose of the case. In view of this, the judgment must be reversed for a new trial. To do other than send the case back for a new trial when decision on a vital issue by the jury is missing would deprive the parties of the jury trial to which they are entitled constitutionally.”

The district court judgment will be vacated and the case remanded for further proceedings consistent with this opinion.

      . The special questions read as follows:
      “1. Did Franki Foundation Company perform or substantially perform the Agreement, composed of the Proposal of June 6, 1969 and the Purchase Order of Alger-Rau dated August 6, 1969?
      Answer ‘Yes’ or ‘No’: YES -
      IF YOUR ANSWER TO QUESTION 1 IS ‘YES’, YOU WILL ANSWER QUESTION 2. IF YOUR ANSWER TO QUESTION 1 IS ‘NO’, YOU WILL NOT ANSWER QUESTION 2 BUT WILL PROCEED TO ANSWER QUESTION 3.
      “2. What amount do you find to be the unpaid balance owing to Franki Foundation Company on this contract?
      Answer. $21,979.65 plus interest
      “3. Did Alger-Rau and Associates, Inc., incur expenses to complete the contract of Franki Foundation Company or incur additional expense in the performance of its own contract resulting from increased costs which flowed directly from the failure of Franki Foundation Company to perform or substantially perform its contract?
      Answer ‘Yes’ or ‘No’:_
      IF YOUR ANSWER TO QUESTION 3 IS ‘YES’, YOU WILL ANSWER QUESTIONS 4 AND 5. IF YOUR ANSWER TO QUESTION 3 IS ‘NO’, YOU WILL.PROCEED NO FURTHER.
      “4. What is the amount of this increased cost, if any, incurred by Alger-Rau and Associates, Inc., as a result of the failure of Franki Foundation Company to perform its contract?
      Answer: $_,
      “5. Was Franki Foundation Company relieved from paying delay expenses considering the contract as a whole, including the provision that it would not be responsible for delay if Franki was furnished with ground condition information which was substantially different from the actual ground conditions which existed?
      Answer ‘Yes’ or ‘No’:--—

      . We have recently had occasion to point out that, as a matter of policy, the views of the trial judge on the merits of post-trial motions should be secured, wherever possible, before a final decision on appeal from the entry of judgment following a jury verdict is made in this court. See Hattersley v. Theodore Bollt, etc., et al. v. Lazovitz, Inc., et al., 512 F.2d 209, Opinion filed February 19, 1975 (3d Cir.) In this case he ruled on such motions by the above April 15, 1974, order. As noted below at note 10, the trial judge will have the discretion to present the issues covered by interrogatories 1 and 2 to the jury during the new trial if he decides to do so.

      . The jurors also failed to answer Questions 4 and 5, but these were to be considered only if Question 3 was answered in the affirmative. See note 1.

      . Defendant-appellant’s counterclaim for damages was based on plaintiff’s alleged failure to complete the contract on time.

      . Appellee contends, incorrectly, that the trial judge secured an answer to Question 3 through his colloquy with the jury upon return of the verdict. It is clear from the transcript of the proceedings that the “colloquy” was held in reference to Questions 1 and 2, and that no reference was made to Question 3 (pp. 2-3 of Jury Verdict Proceeding of 12/8/73— Doc. 52 of Civil No. 73-103, W.D.Pa.).

      . Appellee also contends that appellant did not timely object to the jury’s failure to answer all the special interrogatories and therefore waived its right to a new trial. .However, as it appears that appellant had no knowledge of the jury’s omission, it cannot be said to have waived a jury trial on the issue presented by Question 3. See Union Pacific Railroad Co. v. Bridal Veil Lumber Co., supra at 831 n. 2, of 219 F.2d. The instant appeal, a special verdict case, is not controlled by cases in which counsel was held to have clearly waived any objection to an inconsistency between the general verdict and special findings after responding negatively to the trial judge, who, prior to dismissing the jury, had inquired as to whether counsel wished to raise anything further. See, e. g., Cundiff v. Washburn, 393 F.2d 505, 506 (7th Cir. 1968).

      . See paragraph 2 of Motion For A New Trial (Doc. 47 in W.D.Pa., Civil No. 73-103). As noted above at page 4, the court in denying such Motion For A New Trial, recited that defendant’s counsel had stated it contained defendant’s reasons relied on for such Motion.

      . We have concluded that at least paragraph 2 of the Motion For A New Trial (see note 7) was not in fact abandoned. It may be noted that (a) the withdrawal of counsel did not withdraw the motions; (b) appellant’s present counsel requested the trial court to enter an order on the basis of the post-trial motions filed by earlier counsel and thus did not display an intention to withdraw or abandon the motions; and (c) neither the Federal Rules of Civil Procedure nor the Rules of Court for the Western District of Pennsylvania require a brief or memorandum of law to accompany any contested motion. Compare with E.D.Pa. Rule 36.

      . We have not overlooked the statement by the Supreme Court in Iacurci, quoted above at page-(page 88, 87 S.Ct. at 1424), that the district court is “in the best position to pass upon the question of a new tial,” but there is no showing in that case that the post-trial motions presenting the issue had been submitted to the district court. See page 584 above.

      . Although the Bridal Veil court held that all issues should be retried, we believe that the district court should have the discretion not to retry the issues covered by questions 1 and 2 if it so decides (see F.R.Civ.P. 42(b)), since there may be no good reason to deprive plaintiff of the answers to interrogatories 1 and 2. See 5A Moore’s Federal Practice (2d ed.) 49.-03 [4] at 2217.

      . See first sentence of first paragraph of text beginning on page 584, as well as notes 2 and 10.