author: ALFRED T. GOODWIN, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Eddie Leroy ANDERSON, Appellant.
    No. 74-1029.
    United States Court of Appeals, Ninth Circuit.
    Sept. 20, 1974.
    As Amended Jan. 2, 1975.
    Certiorari Denied Jan. 27, 1975.
    See 95 S.Ct. 831.

      Joseph A. Milchen, (argued), San Diego, Cal., for appellant.
    Douglas G. Hendricks, Asst. U. S. Atty. (argued), San Diego, Cal., for appellee.
    Before HUFSTEDLER and GOODWIN, Circuit Judges, and NEILL, District Judge.

       Tlie Honorable Marshall A. Neill, United States District Judge for the Eastern District of Washington.

   OPINION

ALFRED T. GOODWIN, Circuit Judge:

Eddie Leroy Anderson appeals his conviction for possession of heroin, with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). He contends that the evidence should have been suppressed as the product of an illegal search. We reject this contention, and affirm.

On February 21 and 22, 1973, an agent of the United States Customs Service learned from two informants that a man named Tutwiler was en route to the area near Calexico, California, to purchase heroin. Soon afterward, one of these informants told the agent that Tutwiler had purchased five ounces of heroin in Mexicali and that the heroin would be delivered in Calexico or Brawley.

Early in the morning of February 23, Tutwiler, Anderson, and two other men entered the United States from Mexico at the Calexico port of entry. After a cursory search produced nothing, the men and the vehicle were permitted to leave the border station but they were followed by customs agents. The car was driven 25 miles north to Brawley, where it stopped near various bars, a service station, a motel, and then a cafe. Shortly before noon, the four men left Brawley driving south. Two miles south of town, they turned around and returned part of the way to Brawley.' Tutwiler stopped the car on the shoulder of the road near a lone palm tree. He left the car, looked up and down the road for traffic, and then apparently retrieved a small package from beneath a limb of the palm tree. Tutwiler returned to the car and drove back north through Brawley. At the border-patrol checkpoint north of town, Tutwiler and his companions were searched; four ounces of heroin were found hidden in Anderson’s waistband.

The government contends that this warrantless search can be justified on any of three separate grounds: (1) an extended border search, (2) a “pat-down” search after a stop based upon a founded suspicion, or (3) a search supported by probable cause.

I. Extended Border Search

Extended border searches in this circuit fall generally into two categories: Alexander searches, and Weil searches. See generally United States v. Kessler, 497 F.2d 277 (9th Cir. 1974). Under Alexander v. United States, 362 F.2d 379 (9th Cir.), cert. denied, 385 U.S. 977, 87 S.Ct. 519, 17 L.Ed.2d 439 (1966):

“ * * * the legality of the search must be tested by a determination whether the totality of the surrounding circumstances, including the time and distance elapsed as well as the manner and extent of surveillance, are such as to convince the fact finder with reasonable certainty that any contraband which might be found in or on the vehicle at the time of search was aboard the vehicle at the time of entry into the jurisdiction of the United States * * *362 F.2d at 382.

Breaks in surveillance are permitted under Alexander when other circumstances establish with reasonable certainty that the goods discovered upon search of the suspect or his vehicle were goods under his control when he entered the country. See, e. g., United States v. Mejias, 452 F.2d 1190, 1193 (9th Cir. 1971); Castillo-Garcia v. United States, 424 F.2d 482 (9th Cir. 1970). However, where the amount of contraband is small, and where it is not inaccessible, even a very brief lapse in surveillance prevents customs agents from relying upon Alexander. See, e. g., United States v. Petersen, 473 F.2d 874, 876 (9th Cir. 1973).

Here, a quantity of heroin approximately the size of two quarter-pound sticks of butter was found concealed in Anderson’s trousers. Because of a number of men seen entering and leaving Tutwiler’s car after it had entered this country, and in view of the breaks in surveillance, it cannot be said that there was a reasonable certainty that the heroin found on Anderson was in the car at the time it crossed the border. Indeed, it is more reasonable to infer that Tutwiler picked up this contraband at the palm tree outside Brawley and gave it to Anderson. Hence, the search cannot be justified as an extended border search under Alexander.

Nor can the search be justified under United States v. Weil, 432 F.2d 1320 (9th Cir. 1970), cert. denied 401 U.S. 947, 91 S.Ct. 933, 28 L.Ed.2d 230 (1971). Under Weil a search north of the border will be considered to be the equivalent of a border search where it appears with reasonable certainty that the vehicle contained goods which have been smuggled or a person who has crossed the border illegally. See also United States v. Markham, 440 F.2d 1119, 1121-1123 (9th Cir. 1971).

After the Weil decision, we held in United States v. Vigil, 448 F.2d 1250 (9th Cir. 1971), that the car searched need not have recently crossed the border “if it is ‘reasonably certain’ that it contains goods or persons which have just crossed the border illegally.” 448 F.2d 1251 (emphasis removed and added). Here the officers were reasonably certain that Tutwiler had retrieved narcotics from the palm tree, but knowledge that the narcotics had just crossed the border was problematic. The officers knew that Tutwiler was transacting business with smugglers, in Mexico, but that knowledge was too generalized to provide a Weil rationale for an extended border search. See Note, From Bags to Body Cavities: The Law of Border Search, 74 Colum.L.Rev. 53, 69-70 (1974).

II. Founded Suspicion and Probable Cause

Next, the government contends that even if the search was not valid as an extended border search, the agents still had a founded suspicion entitling them to stop the vehicle in order to investigate Anderson and his companions. See United States v. Jaime-Barrios, 494 F.2d 455 (9th Cir.) cert. denied, 417 U.S. 972, 94 S.Ct. 3178, 41 L.Ed.2d 1143 (1974) ; United States v. Bugarin-Casas, 484 F. 2d 853 (9th Cir. 1973), cert. denied 414 U.S. 1136, 94 S.Ct. 881, 38 L.Ed.2d 762 (1974). Having stopped them, the government argues, the agents had a right to check for weapons. We need not decide whether the stop was legal in the absence of probable cause to arrest Tutwiler, who had been the subject of intermittent customs surveillance for nearly six weeks. The agents had probable cause to stop the car, arrest the occupants, and search for contraband. Whether the transaction was an arrest, or an investigatory stop, it was supported by probable cause. To find probable cause, the trial court had to examine the credibility of the informants who caused the Customs Service to initiate surveillance of Tutwiler and company.

The first informer told a customs agent on January 11, 1973, that Tutwiler was in Mexicali looking for a heroin supplier. Later that day Tutwiler was observed in Calexico, just across the line from Mexicali. The next day the informer told the customs agent that Tutwiler had bought some heroin in Mexicali. Although Tutwiler was followed for the next four days and searched every time he returned to the United States, the heroin was never found.

On.January 23, 1973, the same informer told the customs agent that Tutwiler was back in Mexicali to buy more heroin for delivery in Calexico or Brawley. That day, Tutwiler entered the United States at Calexico. Three thousand dollars were found on Tutwiler’s companion; the next day, when Tutwiler’s party was again searched at the port of entry, the money was not found. Surveillance was ended on the night of January 25. Later that day, after Tutwiler had left the area, the informer reported to the customs agent that heroin had been thrown over the border fence at Calexico and delivered to Tutwiler in Brawley.

On February 22, 1973, this same informant told the Customs Service that Tutwiler was again en route to Mexicali to purchase heroin. The next day, the informer said that Tutwiler had bought approximately five ounces of heroin in Mexicali that would be delivered in Calexico or Brawley. As predicted, Tutwiler, Anderson, and two other men entered the United States at Calexico. As noted earlier, this odyssey ended in the arrest and search presently being challenged.

The agent with whom the informant had been working testified that he considered the informant to be reliable. He had .received information from the informant approximately seven times since the first of January. This information proved to be accurate, and resulted in one arrest. The agent testified in chambers to his knowledge of the informant’s methods and the manner in which the informant obtained his information.

The second informant first implicated Anderson on February 21, 1973, when he told another federal agent that Tutwiler, Anderson, and another man were scheduled to travel soon to Mexico to purchase some heroin. This informant described Tutwiler’s auto and gave its license number. This agent testified that the informant had provided valid information in approximately seven other narcotics investigations; every case resulted in an undercover buy of heroin and an arrest. Again in chambers, the agent testified how the second informant had obtained his information. The court concluded that the informant was, in fact, reliable.

Anderson challenges the propriety of in camera hearings to determine the bases for the informants’ knowledge. Under Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), for an informant’s tip to provide grounds for a finding of probable cause, law-enforcement officers must establish both the reliability of the informant as well as the reasons for trusting the conclusions made by the reliable informant. United States v. Hamilton, 490 F.2d 598, 600 (9th Cir. 1974). The first part of this test — the reliability of the informant — was explored in open court, and we agree with the trial court’s finding that both informants were reliable. The government sought to satisfy the second part of this test by introducing evidence of the underlying circumstances warranting the informants’ conclusions in this particular case. See Travis v. United States, 362 F.2d 477, 479 (9th Cir.), cert. denied, 385 U.S. 885, 87 S.Ct. 179, 17 L.Ed.2d 113 (1966). However, the government contended that if the bases of the informants’ information were made known in open court, the identity of the informants would necessarily be revealed. For this reason, the government requested and was granted an in camera hearing on this issue. Anderson argues that this practice infringes on his Sixth Amendment right of confrontation and his Fifth Amendment right to due process of law.

In Roviaro v. United States, 353 U.S. 53, 58-62, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957) the Supreme Court noted that protecting an informant’s confidentiality serves important law-enforcement objectives, and, therefore, determining whether to reveal his identity requires a balancing of the public interest in protecting the flow of information against the defendant’s right to prepare his defense. Likewise, in McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967), the Court held that disclosure of the identity of an informant was not constitutionally required on the facts of that case.

The case is distinguishable from Roviaro and McCray in at least one respect: Roviaro and McCray both sought disclosure of the names of the informants; Anderson purports to seek not their names but only the underlying circumstances which made their conclusions seem reliable to the government agents. This difference, however, does not detract from the government’s privilege in a proper case to protect the identity of persons who furnish information to law-enforcement officers.

Interpreting Roviaro, this court recently held in United States v. Rawlinson, 487 F.2d 5 (9th Cir. 1973), that an in camera hearing was an appropriate means for determining whether the informant’s identity and testimony would be relevant and helpful to the defense. Whereas the Rawlinson informant was an actual party to the transaction for which Rawlinson was convicted, and conceivably could have corroborated Rawlinson’s defense of entrapment, the informant here apparently was not involved in Anderson’s possession of heroin and could not have provided testimony relevant to Anderson’s possession. Having endorsed an in camera hearing in Rawlinson for a limited purpose, we have a stronger case here for finding no error.

Faced as we are with an undisclosed informant who provided grounds for a warrantless arrest, the Court of Appeals for the Eighth Circuit remanded for an in camera hearing at which the trial court could examine the validity of the informant’s information without exposing his identity. United States v. Hurse, 453 F.2d 128 (8th Cir. 1971). Likewise, the Proposed Rules of Evidence for United States Courts and Magistrates, Rule 510(c)(3) (June 28, 1973), provides:

“* -x- * jf information from an informer is relied upon to establish the legality of the means by which evidence was obtained and the judge is not satisfied that the information was received from an informant reasonably believed to be reliable or credible, he may require the identity of the informer to be disclosed. The judge shall, on request of the government, direct that the disclosure be made in camera * * *.”

The approach sanctioned in Hurse and the Proposed Rules is basically consistent with the standards set forth in McCray v. Illinois, supra. In McCray, the Court held that disclosure of the identity of an informer who provided information constituting probable cause for a warrantless search was not constitutionally required. The Court at 386 U.S. 312 n.11, 87 S.Ct. 1063, repudiated a dictum contained in Roviaro v. United States, to the effect that “[i]n . cases [where the legality of a search without a warrant is in issue and the communications of an informer are claimed to establish probable cause] the Government has been required to disclose the identity of an informant unless there Was sufficient evidence apart from his confidential communication.” Roviaro v. United States, 353 U.S. at 61, 77 S.Ct. at 628.

Refusing, as it had in Roviaro, to impose any absolute disclosure rule, the Court appeared to endorse a somewhat attenuated “probable cause” version of the standard of review it had previously approved for use in situations where the informant’s potential testimony went to the merits. Thus, after reiterating the Roviaro rule, the McCray majority stated that “[m\uch less has the Court ever approached the formulation of a federal evidentiary rule of compulsory disclosure where the issue is the preliminary one of probable cause, and guilt or innocence is not at stake.” 386 U.S. at 311, 87 S.Ct. at 1062. (Emphasis added.) Summarizing its holding, the Court stated that it had “consistently declined to hold that- an informer’s identity need always be disclosed in a federal criminal trial, let alone in a preliminary hearing to determine probable cause for an arrest or search.” 386 U.S. at 312, 87 S.Ct. at 1063. (Emphasis added.)

On the other hand, it seems clear that the McCray majority did not intend to promulgate a rule which would invariably preclude disclosure of an informant’s identity to the accused or his attorney simply because the informant’s information related solely to probable cause. In upholding the conviction, the Court stressed the completeness of the testimony and the availability of the testifying officers for cross-examination. 386 U.S. at 313, 87 S.Ct. 1056. By implication, the Court would seem to approve disclosure in instances where the trial judge deemed it necessary to assess credibility or accuracy. Yet the Court’s stated reluctance to impose a fixed standard regulating disclosure indicates that a trial court’s determination on this issue should be a matter of discretion.

Thus, rather than establishing a fixed rule that either requires or precludes disclosure of the informant’s identity when probable cause is in issue, we hold that the responsibility for striking the proper balance in each ease rests with the trial judge. In striking that balance the trial judge, in the exercise of his discretion, can conduct an in camera hearing to which the defense counsel, but not the defendant, is admitted. The defense counsel could then be permitted to participate in the in camera proceedings and to cross-examine the in camera witness or witnesses. When defense counsel has been admitted to the in camera hearing for this limited purpose, the district court can and should, when appropriate, place defense counsel under enforceable orders against unwarranted disclosure of the evidence that he has heard. Cf. Alderman v. United States, 394 U.S. 165, 185, 89 S.Ct. 961, L.Ed.2d 176 (1969). If the trial judge is satisfied that an in camera hearing in which neither the defendant nor his attorney participates is adequate to explore the foundations of the informant’s information, then no disclosure is necessary. The trial court’s determination will be reversed only if it constitutes an abuse of discretion or constitutional error.

In the present ease, there is no reason to believe that the informer could have provided testimony relevant to Anderson’s defense on the merits. Rather, his testimony related solely to the prearrest issue of probable cause. Since disclosure of the underlying circumstances of the informant’s information would necessarily have revealed the informant’s identity, the court properly considered the government’s interest in the anonymity of the informer. The court accommodated the competing interest of the defendant in a fair trial through the use of an in camera hearing closed to the defendant and his attorney. We cannot say that the accommodation reached was an abuse of discretion. Nor can we say that the procedure infringed the defendant’s rights under the Fifth and Sixth Amendments. See McCray v. Illinois, 386 U.S. at 313-314, 87 S.Ct. 1056. Moreover, having reviewed the transcript of the in camera proceedings, we affirm as not clearly erroneous the trial court’s finding that the informant’s conclusions were based upon sufficiently reliable information.

The information supplied by the informants, when combined with the agents’ own observations of Tutwiler and Anderson, provided more than enough probable cause to believe that the car in which the men were driving contained seizable contraband. See generally United States v. Patterson, 492 F.2d 995 (9th Cir. 1974); Rebell, The Undisclosed Informant and the Fourth Amendment: A Search for Meaningful Standards, 81 Yale L.J. 703, 716-17 (1972).

Anderson’s final argument is that, even if the agents had probable cause for the search, there were not exigent circumstances justifying the failure to secure an arrest or search warrant. We disagree. Not until Tutwiler was observed extracting a package from a palm tree outside Brawley did the agents have probable cause.. Immediately afterward, hpwever, Tutwiler returned to his car and began driving north. The agents had no way of knowing how long the suspects would remain in the area. Sufficient exigent circumstances existed to justify a warrantless search. See Chambers v. Maroney, 399 U.S. 42, 46-52, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Carroll v. United States, 267 U.S. 132, 149, 45 S.Ct. 280, 69 L.Ed. 543 (1925); United States v. Patterson, 492 F.2d at 996.

The conviction is affirmed.

      . In Roviaro, the Court required a case-by-case balancing of the “public interest in protecting the flow of information against the individual’s right to prepare bis defense.” 353 U.S. at 62, 77 S.Ct. at 629.

      . The Court went on to state:
      “* * * Indeed, we have repeatedly made clear that federal officers need not disclose an informer’s identity in applying for an arrest or search warrant. As was said in United States v. Ventresca, 380 U. S. 102, 108 [85 S.Ct. 741, 745, 13 L.Ed.2d 684], we have ‘recognized that “an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant,” so long as the magistrate is “informed of some of the underlying circumstances” supporting the affiant’s conclusions and his belief that any informant involved “whose identity need not be disclosed . . . was ‘credible’ or bis information ‘reliable.’ ” * * * [Citation omitted.]”’ McCray v. Illinois, 386 U.S. at 311, 87 S.Ct. at 1062. (Emphasis in original.)

      . McCray’s explicit discussion of federal procedures was not constitutional doctrine but rather a commentary on the exercise of the Court’s supervisory jurisdiction over the evidentiary rules applied by federal courts in criminal cases. But in upholding the constitutionality of the Illinois informer’s privilege, the Court implicitly validated similar federal procedures and standards. ‘ Under the Illinois procedure, the trial judge had discretion to require or deny disclosure. . See McCray v. Illinois, 386 U.S. at 305, 313, 87 S.Ct. 1056. A similar exercise of discretion by a federal judge would be constitutional.


source: Caselaw Access Project

author: WIDENER, Circuit Judge:

license: Public Domain

text:
    The DUPLAN CORPORATION, Appellee, v. MOULINAGE et RETORDERIE de CHAVANOZ, Appellant, Deering Milliken, Inc., et al., Defendants.
    No. 74-1221.
    United States Court of Appeals, Fourth Circuit.
    Argued April 14, 1974.
    Decided Oct. 18, 1974.
    As Amended on Denial of Rehearing Dec. 20, 1974.
    Certiorari Granted March 24, 1975.
    See 95 S.Ct. 1438.

      Jay H. Topkis, New York City (Butler, Means, Evins & Browne, Spartan-burg, S. C., and Paul, Weiss, Rifkind, Wharton & Garrison, New York City, on brief), for appellant Chavanoz.
    Fletcher C. Mann, Greenville, S. C. (Allan Trumbull, New York City, O. G. Calhoun, Jr., Greenville, S. C., John J. Barnhardt, III, Charlotte, N. C., Michael R. Abel, Greensboro, N. C., and Lawrence A. Hymo, Washington, D. C., on brief), for appellee Duplan Corp.
    Before ADAMS, FIELD and WIDENER, Circuit Judges.

       United States Court of Appeals for the Third Circuit; sitting by designation.

   WIDENER, Circuit Judge:

This case presents the question whether an attorney’s opinion work product material developed in prior terminated litigation may properly become the subject of discovery in connection with subsequent litigation. The issue involves the work product doctrine of Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L. Ed. 451 (1947), and the scope of the protection afforded a lawyer’s “mental impressions, conclusions, opinions, or legal theories” by Rule 26(b)(3) of the Federal Rules of Civil Procedure.

We hold that such opinion work product material, as distinguished from material, not containing mental impressions, conclusions, opinions, or legal theories, is immune from discovery although the litigation in which it was developed has been terminated. Thus, for reasons which follow, we vacate the judgment of the district court and remand.

This patent-antitrust litigation presently consists of 37 cases which have been consolidated in the district court. Duplan Corporation (the throwsters) brought this suit charging Moulinage et Retourderie de Chavanoz (Chavanoz) and others with violating Sections 1 and 2 of the Sherman Act by denying the throwsters a free and open market for the purchase of unlicensed royalty-free false twist machines. Claiming patent misuse and inequitable conduct on the part of Chavanoz in dealing with the United States Patent Office, the throwsters also seek a declaratory judgment that 21 patents owned by Chavanoz are invalid, unenforceable, and not infringed.

In this context, the throwsters seek discovery of work product material developed by Chavano'z’s attorneys and others relating to 1964 settlement agreements with Leesona Corporation, and also relating to knowledge by Chavanoz of the state of the prior art involved in its patented process.

In an earlier appeal, Duplan Corp. v. Moulinage et Retourderie de Chavanoz, 487 F.2d 480 (4th Cir. 1973), we held, “upon the narrow question whether upon the termination of litigation the work product documents prepared incident thereto lose the qualified immunity extended to them under Rule 26(b)(3), Federal Rules of Civil Procedure,” they do not automatically “become freely discoverable in subsequent and unrelated litigation.” S.Because we were not then confronted with any claim relating to opinion work product, we dealt solely with the first sentence of Rule 26(b)(3) as applied to factual materials contained in an attorney’s files.

Upon remand, the district court separately reviewed the documents in question, and in an order dated December 21, 1973 directed Chavanoz to produce 105 of them. Fifty-eight of these 105 documents have been produced; the remaining 47 were the subject of a motion for reconsideration by Chavanoz. As to these, Chavanoz claimed they were protected from discovery under Rule 26(b)(3) since they contained mental impressions, conclusions, opinions, and legal theories of attorneys and other representatives of Chavanoz prepared in anticipation of litigation or for trial. Nevertheless, on February 5, 1974, the district court ordered production of 22 of the 47 documents, finding that as to each of these the throwsters had demonstrated “substantial need” and “undue hardship.” And although it acknowledged that Rule 26(b)(3) accords an absolute privilege during pending litigation to opinion work product materials prepared incident thereto, the court held that immunity ceases and the protection becomes only “qualified” once the litigation for which they were prepared terminates.

Certainly, the most controversial problem in the discovery area is the extent to which a party may require divulgence of facts, legal contentions, or trial tactics gathered or ..devised by his adversary in preparation for litigation. The Supreme Court in Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947), granted certain of these materials a qualified immunity. There the defendant’s counsel had personally secured oral and written statements from witnesses in preparation for pending litigation. The plaintiff’s counsel, in order to prepare for his own examination of these witnesses, sought copies of these signed written statements and detailed resumes of the oral statements. Characterizing these materials as the “work product” of the lawyer, the court held that without a showing of special need they were privileged from discovery.

In the federal courts from 1946 to 1970, the scope of Hickman and the work product doctrine was left to adjudication on a case by case basis. The decisions were often conflicting, and we ' have previously quoted one court’s remark that Hickman v. Taylor had opened a Pandora’s Box. After numerous abortive attempts to reconcile the Rules with Hickman, the Advisory Committee on Civil Rules, finally agreed upon a draft of Rule 26(b)(3) of the Federal Rules of Civil Procedure. As adopted by the Supreme Court in 1970, Rule 26(b)(3) contains these special provisions for trial preparation materials:

“Subject to the provisions of subdivision (b) (4) of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative (including his attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.”

The first sentence grants a qualified immunity to “documents and tangible things . . . prepared in anticipation of litigation.” The second sentence, however, provides “[i]n ordering discovery of such materials . . . the court shall protect against disclosure of the mental impressions. . . . ” [Emphasis added] By their terms, the two sentences are complementary. Thus, it is apparent that the clear command of the second sentence to “protect against disclosure” applies to all the materials referred to in the first sentence. In our view, no showing of relevance, substantial need or undue hardship should justify compelled disclosure of an attorney’s mental impressions, conclusions, opinions or legal theories. This is made clear by the Rule’s use of the term “shall” as opposed to “may.”

The district court, however, reasoned that what was a mental impression, opinion, conclusion, or legal theory, although absolutely protected during the pendency of a lawsuit, may change to an “operative fact” in a subsequent case once the earlier lawsuit is terminated. And should this happen, upon a proper showing of substantial need and undue hardship, the district court held that it might in its discretion order the production of opinions and conclusions where the denial of such production would frustrate the demands of justice and result in suffocation of the truth.

The district court then devised an operative fact exception to the otherwise absolute immunity accorded opinion work product by Rule 26(b) (3). In our view, this construction fails to comport with the policies underlying Hickman v. Taylor and Rule 26(b) (3).

It seems clear from the whole tenor of the Hickman opinion that the court was concerned with protecting the thought processes of lawyers and thus the very adversary system. As Justice Murphy stated in this now classic passage from Hickman:

“Historically, a lawyer is an officer of the court and is bound to work for the advancement of justice while faithfully protecting the rightful interests of his clients. In performing his various duties, however, it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper preparation of a client’s ease demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue needless interference. That is the historical and the necessary way in which lawyers act within the framework of our system of jurisprudence to promote justice and to protect their clients’ interests.” 329 U.S. at 510-511, 67 S.Ct. at 393.

Should an advocate’s thoughts, theories, opinions, and impressions, collected and developed during pending litigation, become discoverable in connection with later litigation because they are thought to be relevant, our adversary system would clearly suffer. Its foundation would be undermined. And in our view, the fears articulated by the Hickman court should apply here with equal force:

“Were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten. An attorney’s thoughts, heretofore inviolate, would not be his own.. Inefficiency, unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of eases for trial. The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served.” 329 U.S. at 511, 67 S.Ct. at 393.

In reaching our decision, we have considered with some care those cases in which courts have heretofore permitted discovery of lawyers’ opinion work product. See, e. g., United States v. Brown, 478 F.2d 1038 (7th Cir. 1973); Merrin Jewelry Co. v. St. Paul Fire and Marine Insurance Co., 49 F.R.D. 54 (S. D.N.Y.1970); Bourget v. Government Employees Ins. Co., 48 F.R.D. 29 (D. Conn.1969) ; O’Boyle v. Life Ins. Co. of North America, 299 F.Supp. 704 (W.D. Mo.1969); Kearney & Trecher Corp. v. Giddings & Lewis, Inc., 296 F.Supp. 979 (E.D.Wis.1069); Kirkland v. Morton Salt Co., 46 F.R.D. 28 (N.D.Ga.1968). But none of these cases were decided under Rule 26(b)(3), and most of them may be additionally distinguished on their facts from the situation before us here. In such instances, in those eases, however, where the courts concerned treated attorneys’ opinion work product as having only a qualified immunity which was not then honored, we believe the results were incompatible with Hickman v. Taylor and certainly the subsequent Rule 26(b)(3) which encompasses the protection termed “absolute” by Wright & Miller in 8 Federal Practice and Procedure, Civil, 1970, p. 193.

The throwsters rely upon Bird v. Penn Central Co., 61 F.R.D. 43 (E.D. Pa.1973), where the court ordered production of attorneys’ memoranda containing mental impressions and legal conclusions relating to the sufficiency of a rescission claim upon the requisite showing. The Bird holding, however, merely applied the established rule that a party cannot affirmatively assert reliance upon an attorney^ advice and then refuse to disclose such advice. See 8 Wigmore, Evidence § 2327 (McNaughten ed. 1961). And in International Tel. & Tel. Corp. v. United Tel. Co., 60 F.R.D. 177 (M.D.Fla.1973), which the throwsters also rely upon, the court noted that mental impressions and legal theories are “entitled to greater protection than other” trial preparation materials, but refused to order their disclosure despite a strong showing of substantial need and undue hardship, the materials being “almost absolutely unavailable otherwise.”

We know that our adversary system of justice relies heavily on the attorneys for its very functioning. And in many or even most cases, nothing less than the lawyer’s very best is adequate. In every instance in which an attorney is consulted (even confining our remarks to the words of the Rule) “in anticipation of litigation” he must be free to give his candid, dispassionate opinion, and equally free to record it and his mental impressions and conclusions. No other rule is compatible with the interests of justice. The client seeking the opinion must be similarly uninhibited. So the attorney may not properly perform, and the client may not seek his due, if can-, did professional opinions prepared for a client in one case may be used against the client in subsequent litigation in the context sought here. The restriction on the attorney in giving advice, and the inhibition on the client in seeking it, is simply not compatible with our adversary system.

It is true that litigation is no longer a game of hide and seek, and also true that justice is to a large extent equated with truth. But if attorneys may not freely and privately express and record mental impressions, opinions, conclusions, and legal theories, in writing, and clients may not freely seek them, then there is justice for no one, and truth, instead of being more readily ascertainable, will become lost in the murky recesses of the memory in the minds of men, who, after all, are human and subject to the human frailty of rationalization. Cf. Hickman,. 329 U.S. p. 511, 67 S.Ct. 385.

We thus adhere to and follow our holding in Duplan Corp. v. Moulinage et Retorderie de Chavanoz, 487 F.2d 480 (4th Cir. 1973) (that the immunity extended to work product may extend in time beyond the litigation at hand) and hold here that the immunity extended to attorneys’ mental impressions, conclusions, opinions, or legal theories by the last sentence of F.R.C.P. 26(b)(3) does not expire once the litigation for which they are prepared has been concluded

The documents immediately in question here are described by the parties as twenty-two in number. They say twenty-five documents were not ordered to be produced. Any questions with relation to documents not ordered to be produced are moot. Although all of the documents containing opinion work product is not that of attorneys, all have been treated by the parties and the district court as being that of attorneys “or other representative[s] of a party.” And it is clear the parties agree that the district court treated all of the documents here in question as not discoverable unless the opinion work product immunity ceases with the litigation for which prepared: “. . . this court may in its discretion order the production of opinions and conclusions. . . .” District court opinion, p. 19.

We are mindful that certain documents may contain both discoverable material and non-discoverable material. On remand, the district court may, providing the other prerequisites for discovery have been met, excise from such documents the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative, and order the balance of the documents to be produced. See Note of the Advisory Committee, etc., 48 F.R.D. 457, 502; 8 Federal Practice and Procedure, Civil, Wright and Miller (1970), pp. 231-2. The district court also may require Chavanoz to abstract such documents for turning over to the throwsters, or may itself abstract the documents, in either case taking care to protect against disclosure of mental impressions, conclusions, opinion, or legal theories as directed by the last sentence of F.R.C.P. 26(b)(3).

Reversed and remanded.

      . Rule 26(b)(3), F.R.C.P., reads as follows: “(3) Trial Preparation: Materials. — Subject to the provisions of subdivision (b) (4) of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b) (1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative (including his attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.”

      . In the early 1960’s, Leesona Corporation claimed in a series of lawsuits that United States patents which it owned were infringed by the sale and operation of machines manufactured by a licensee of Chavanoz. These lawsuits were settled in 1964 by agreement between Leesona and Chavanoz.

      . “In particular, the throwsters request that documents should be produced dealing with the following matters:
      (a) Patent Procurement. What knowledge did Chavanoz possess about prior ‘false twist’ art at the time that it filed and prosecuted each patent application in the U. S. Patent Office? Did the French patent agent, Leo Soep, disclose to the U. S. Patent Office the pertinent facts he knew about .the prior art? Did the American patent attorneys Armitage and Mueller disclose to Chavanoz or to the U. S. Patent Office the pertinent facts they knew about the prior art? Were representations to the appropriate Patent Office officials accurate and candid?
      (b) Patent Enforcement. When the patent owner and/or the exclusive U. S. use-licensee filed infringement suits against the defaulting sublicensee throwsters, did they know or have reason to know that they were attempting to enforce invalid or inapplicable patents?
      (c) Termination of Patent Litigation. . . what facts were known by the Chavanoz/Deering Milliken Research Corporation Group about the alleged invalidity and inapplicability of Chavanoz’ patents when entering the 1964 agreements with the Leesona/Permatwist Group? [What evidence is there] . . . about the alleged invalidity and inapplicability of Leesona patents . . . [involved in the same] settlement agreements . . . ”[?] Opinion of district court, pp. 4-5.

      . In so holding, we stated that “the legal profession and the interests of the public are better served by recognizing the qualified immunity of work product materials in a subsequent case as well as that in which they were prepared. . . . ” 487 F.2d at 484. Then, in remanding to the district court, we stated:
      “Our decision will not in any way frustrate the ends of justice. If the party seeking discovery can demonstrate ti.e substantial need and undue hardship specified in the Rule and recognized in Hickman, the district court will order production. We think it appropriate and desirable that the district judge determine whether a party has made a showing sufficient to justify such an intrusion upon the privacy of an attorney’s files.” 487 F.2d at 485.

      . See, e. g., 4 Moore’s Federal Practice f 26.63-64 (1974) ; 2A Barron & Holtzoff, Federal Practice and Procedure § 652 (Wright ed. 1961) ; 8 Wright & Miller, Federal Practice and Procedure §§ 2021-27 (1970) ; Advisory Committee Note to the 1970 amendments of Rule 26(b)(3), 48 F. R.D. 499 (1970) ; Freund, Work Product, 45 F.R.D. 479 (1968) ; Note, Developments in the Law — Discovery, 74 Harv.L.Rev. 940, 1027 (1961).

      . Viront v. Wheeling & L. E. Ry. Co., 10 F. R.D. 45, 47 (D.C.Ohio 1950).

      . Because it was contended here that the 1964 settlement agreements between Leesona Corporation and the patent owner, Chavanoz, were in fact an antitrust conspiracy, the district court ordered production of certain opinion work product materials since “the mental impressions, opinions, conclusions, and legal theories of the attorney in the prior litigation are now operative facts as to the motive and intent of the parties at the time of the settlement.” District court opinion at p. 16. As to the contentions that fraud was practiced on the U. S. Patent Office, the court ordered production of similar materials since “the mental impressions, opinions, conclusions, and legal theories of the attorneys prosecuting the patent applications for Chavanoz are now operative facts as to the motive and intent of the patent owner in its dealing with the Patent Office.” District court opinion at p. 16.

      . Not all of these cases can be distinguished, certainly. But we agree with Wright & Miller’s observation that not every case decided prior to July, 1970 remains authoritative. “On some points the new rule resolves conflicts in the cases. Some decisions in the past may be improper applications of the doctrine announced in Hickman and now put into a rule. Thus, pre-1970 cases must be resorted to with discrimination and care. . ” 8 Wright & Miller, Federal Praetice and Procedure, Civil § 2023, at 193 (1970).
      The following cases, decided since the 1970 amendments to Rule 26(b)(3), refused to allow discovery of opinion work product: Smedley v. Travelers Ins. Co., 53 F.R.D. 591 (D.N.H.1971) (rule referred to) ; Crocker v. United States, 51 F.RD. 155 (N.D.Miss. 1970) (rule not referred to, but the court used the phrase “mental impressions, conclusions,''and legal theories”).

      . gee 8 Federal Practice and Procedure, Civil, Wright & Miller (1970), p. 201.

      . Appendix C to the opinion of the district court lists 48 documents, 23 to be produced and 25 not to be produced. The discrepancy in numbers may be due to document Cat. 10, No. 85, which the court ordered produced sua sponte. In all events, only twenty-one, documents are in dispute here, rather than twenty-two, for two of the twenty-three documents ordered to be produced were found by the district court not to come within the rule. This is pointed out in the throwsters’ brief and not taken issue within the reply brief of Chavanoz. The twenty-one documents to which this opinion applies, which include the document taken up sna sponte, then, are the twenty-three documents ordered to be produced by Appendix C of the opinion of the district court less the two held not to come within the rule, numbers Cat. 10, No. 397, and Cat. 10, No. 574.


author: WEBSTER, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Lawrence GEELAN, Appellant. UNITED STATES of America, Appellee, v. Robert Silas MOORE, Appellant. UNITED STATES of America, Appellee, v. Clarence RESSLER, Jr., Appellant. UNITED STATES of America, Appellee, v. David B. SMITH, Appellant.
    Nos. 74-1048, 73-1869, 74-1074 and 74-1073.
    United States Court of Appeals, Eighth Circuit.
    Submitted June 12, 1974.
    Decided Dec. 31, 1974.
    Rehearing and Rehearing En Banc Denied Feb. 24, 1950.
    Certiorari Denied June 2, 1975.
    See 95 S.Ct. 2395, 2396.

      Patrick C. McCormick, Sioux City, Iowa, for appellants, Ressler and Geelan.
    Daniel C. Galvin, Sioux City, Iowa, for appellant, Moore.
    Mayer Kanter, Sioux City, Iowa, for appellant, Smith.
    Gary Wenell, Asst. U. S. Atty., Sioux City, Iowa, for appellee.
    Before GIBSON, Chief Judge, and BRIGHT and WEBSTER, Circuit Judges.
   WEBSTER, Circuit Judge.

These criminal appeals have been consolidated because they present one common question: whether the delay of the District Clerk in implementing the 1972 amendments to the Jury Selection and Service Act of 1968 caused juries to be empaneled so contrary to law as to mandate reversal of convictions by such juries. Other non-common assignments of error will be considered separately.

In each of the consolidated cases a motion had been filed in which the defendants sought a stay of proceedings on the ground that the master jury wheel from which jurors would be chosen for their respective trials had not been refilled in accordance with the requirements of 28 U.S.C. § 1863 and Rule 6 of the Local Rules of the Northern District of Iowa. The motions were denied, juries were empaneled and the defendants were thereafter tried and convicted.

I.

In 1972, Congress amended the Jury Selection and Service Act of 1968 by enacting Public Law 92-269, the purpose of which was “to change the minimum age qualification for serving as a juror in Federal courts from 21 years of age to 18 years of age.” Public Law 92-269 provides in part that:

Each judicial district * * * for which a separate plan for random selection of jurors has been adopted pursuant to section 1863 of title 28, United States Code * * * shall not later than September 1, 1973, refill its master jury wheel with names obtained from the voter registration lists for, or the lists of actual voters in, the 1972 general election.
* * * * * *
The qualified jury wheel in each judicial district * * * for which a separate plan for random selection of jurors has been adopted, shall be refilled from the master jury wheel not later than October 1, 1973.

The Northern District of Iowa had in effect a plan for the random selection of jurors pursuant to 28 U.S.C. § 1863, but at the time of these trials in mid-October, 1973, the master jury wheels had not been refilled as required by the 1972 amendment to the Act. The jury panels used in the trials of these appellants were drawn from a qualified jury wheel containing names drawn from the master jury wheel.

Appellants contend that since the mandates of Public Law 92-269 for jury selection had not been complied with at the time of their trials, the District Judge committed prejudicial error by denying their motions to stay the proceedings.

Although the government concedes that Section 3(c) of Public Law 92-269 “was not literally complied with” it asserts that: (1) each appellant failed to meet the requirement of timeliness set out in 18 U.S.C. § 1867 and thereby waived his right to complain of the jury selection process used in his case, (2) the “savings” clause of Public Law 92-269 permitted the old jury wheels to be used until they had been properly refilled, and (3) appellants have failed to show that any prejudice resulted from the process used to select jurors for their trials.

A.

28 U.S.C. § 1867 provides the exclusive method by which a defendant in a criminal case may challenge compliance with the jury selection procedures of the 1968 Act. 28 U.S.C. § 1867(e). The pertinent provisions are as follows:

(a) In criminal eases, before the voir dire examination begins, or within seven days after the defendant discovered or could have discovered, by the exercise of diligence, the grounds therefor, whichever is earlier, the defendant may move to dismiss the indictment or stay the proceedings against him on the ground of substantial failure to comply with the provisions of this title in selecting the grand or petit jury.
* # ^ sfc * *
(d) Upon motion filed under subsection (a) * * * of this section, containing a sworn statement of facts which, if true, would constitute a substantial failure to comply with the provisions of this title, the moving party shall be entitled to present in support of such motion the testimony of the jury commission or clerk, if available, any relevant records and papers not public or otherwise available used by the jury commissioner or clerk, and any other relevant evidence. * * * If the court determines that there has been a substantial failure to comply with the provisions of this title in selecting the petit jury, the court shall stay the proceedings pending the selection of a petit jury in conformity with this title.

In United States v. Williams, 421 F.2d 529 (8th Cir. 1970), this court specifically recognized the importance of a prompt challenge to the process of selecting jurors. We addressed a situation where appellant’s counsel had waited until the day of the trial to complain of the composition of the jury when he possessed the necessary facts to make his complaint eighteen days earlier, and said:

We have held in several decisions that the right to challenge the jury panel may be waived and is waived if not seasonably presented. * * * Appellant’s tardiness in asserting his challenge amounts to a waiver of that right in the instant case.
421 F.2d at 532.

Defendants were granted ten days in which to filé pre-trial motions following their arraignment on September 17, 1973. There is no showing in the record that defendants were misled or that needed information was withheld from them. It required only a simple inquiry to ascertain that the master jury wheel had not been refilled by September 1 with names taken from the 1972 voter list, which would have included the names of 18 year-olds for the first time. A similar inquiry would have produced the fact that the names in the qualified wheel had not been refilled by October 1 with names in turn taken from a master jury wheel refilled in accordance with the 1972 amendment. The motions to stay proceedings were not filed until October 23, the date upon which the cases were set for trial. Since the defendants did not file their motions within seven days after they had discovered the noncompliance, or could have discovered it by the exercise of diligence, they are precluded under the statute from asserting that the trial court erroneously denied their motions because of the failure of the District Clerk to meet the statutory deadlines. 28 U.S.C. § 1867(a).

Our inquiry does not stop here, however, because appellants’ challenge to the jury selection procedure has constitutional overtones. They suggest that the absence of names of 18 year-olds in the jury wheels deprived them of a jury representative of a cross section of the community in violation of their Fifth and Sixth Amendment rights.

Since the master jury wheel contained names from the list of people registered to vote in the 1968 election, it may fairly be said that in 1973 the youngest juror who could have been called for these trials would have been at least twenty-six years of age. To the extent that the delay of the clerk operated to exclude this group of younger voters from jury service, we must examine the effect of such exclusion upon these cases.

In United States v. Gordon, 455 F.2d 398, 401 (8th Cir.), cert. denied, 406 U.S. 970, 92 S.Ct. 2428, 32 L.Ed.2d 670 (1972), we said:

The Constitution does not require that every class, subclass or identifiable group must be represented on every jury list, but only that no systematical, intentional or other unlawful exclusion of persons or groups exist.

Put another way, “[t]he crux of the inquiry is whether, in the source used in the selection of juries, there has been systematic or intentional exclusion of any cognizable group or class of qualified citizens.” United States v. Guzman, 337 F.Supp. 140, 143 (S.D.N.Y.), aff’d, 468 F.2d 1245 (2d Cir. 1972), cert. denied, 410 U.S. 937, 93 S.Ct. 1397, 35 L.Ed.2d 602 (1973).

In October, 1973, the District was in the process of complying with the amendment to the statute. The cases herein under review were the last cases submitted to juries drawn from the 1968 list. The Supreme Court, when dealing with a different sort of challenge to a jury selection process, recently recognized that “some play in the joints of the jury selection process is necessary in order to accommodate the practical problems of judicial administration” in complying with 28 U.S.C. § 1863. Hamling v. United States, 418 U.S. 87, 138, 94 5. Ct. 2887, 2917, 41 L.Ed.2d 590 (1974). Although the need for “some .play in the joints” is no excuse for a failure to comply with a Congressional mandate, the District was in the process of complying, and any claim of “systematic exclusion” of newly enfranchised 18 — 20 year-olds from the jury rolls in the Northern District of Iowa is not supported by the record.

Moreover, we have held that young adults 18-20 years of age do not constitute a cognizable group within the community whose exclusion from the jury rolls amounts to an error of constitutional dimensions. United States v. Olson, 473 F.2d 686, 688 (8th Cir.), cert. denied, 412 U.S. 905, 93 S.Ct. 2291, 36 L.Ed.2d 970 (1973). Other courts have held that 18-20 year-olds do not have a constitutional right to serve on juries.

In summary, we find that the challenge to the jury panel based upon statutory noncompliance was not timely and was therefore waived. We reject the attack upon constitutional grounds because there has been no showing of a systematic exclusion of a cognizable group within the community. Under these circumstances the District Court’s order denying a stay of proceedings was not error.

II.

Moore and Geelan

Appellants Moore and Geelan were convicted of selling merchandise of a value of $5,000 or more which had traveled in interstate commerce and which was known to have been stolen, in violation of 18 U.S.C. § 2315. Specifically, they were charged with selling quantities of a chemical fertilizer known as Atrazine — which had been stolen in Sioux City, Iowa — to a farmer in Chester, South Dakota.

Moore and Geelan contend that the District Court erred in overruling their motions for entry of a judgment of acquittal, made at the close of the government’s case and at the close of the trial, since there was no clear and convincing evidence that the commodity which they delivered to Chester, South Dakota, on or about January 18, 1973, was Aatrex 80W Atrazine, as alleged in the indictment. We disagree.

The defendants opted at trial to present evidence on their own behalf, and we are therefore permitted to examine the record as a whole. See McGautha v. California, 402 U.S. 183, 215-216, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971), vacated on other grounds, 408 U.S. 941, 92 S.Ct. 2873, 33 L.Ed.2d 765 (1972); United States v. Greene, 442 F.2d 1285, 1286-1287 n. 3 (10th Cir. 1971); United States v. Feldman, 425 F.2d 688, 692 (3rd Cir. 1970); United States v. Cashio, 420 F.2d 1132, 1134 (5th Cir. 1969), cert. denied, 397 U.S. 1007, 90 S.Ct. 1234, 25 L.Ed.2d 420 (1970); Viramontes-Medina v. United States, 411 F.2d 981, 982 (9th Cir. 1969); Cline v. United States, 395 F.2d 138, 144 (8th Cir. 1968); United States v. Carabbia, 381 F.2d 133, 138 (6th Cir.), cert. denied, 389 U.S. 1007, 88 S.Ct. 564, 19 L.Ed.2d 602 (1967); United States v. Haskell, 327 F.2d 281, 282 n. 2 (2d Cir.), cert. denied, 377 U.S. 945, 84 S.Ct. 1351, 12 L.Ed.2d 307 (1964). But see Maffei v. United States, 406 U.S. 938, 92 S.Ct. 1789, 32 L.Ed.2d 138 (1972) (Douglas, J., dissenting from denial of certiorari); United States v. Rizzo, 416 F.2d 734, 736 n. 3 (7th Cir. 1969); Cephus v. United States, 117 U.S.App.D.C. 15, 324 F.2d 893, 897-898 (1963).

At trial, appellant Robert Silas Moore testified on cross-examination as follows:

Q. But at the time you left for South Dakota did you know what was in the back of the van?
A. The first time I left?
Q. Yes.
A. I knew that he had business to take care of in South Dakota.
Q. And you had this van loaded down with a ton of Atrazine but you didn’t know it was in there?
A. I didn’t say I didn’t know there was Aatrex in there because I did.
Q. You did know?
A. I didn’t know how much, no.
Q. But you did know there was Aatrex Atrazine in the van?
A. Yes.
Q. When you left for South Dakota. A. Yes.

Similarly, another co-defendant in the case below who is not a party to this appeal testified upon cross-examination:

Q. When you drove this truck to Chester, South Dakota, did you know what was in the truck?
A. Yes, I did.
Q. When you say you drove, are you talking about the first or second time, or both?
A. First time.
Q. Did you know what was in the-truck?
A. Yes, I did.
Q. What was it?
A. Atrazine.
Q. Did you go to Chester, South Dakota, a second time?
A. Yes.
Q. And did you go again with Geelan and Moore?
A. Yes.
Q. Tell the circumstances of that. How did you happen to go?
A. Bob [Moore] just asked me to ride along. I drove most of the way on that one, too.
Q. Do you know what was in that truck, the pickup, I guess it was, the second time?
A. Yes.
Q. What was in it?
A. Atrazine.

There was thus sufficient evidence before the jury from which it could find that the substance delivered to Chester, South Dakota, by appellants on or about January 18, 1973, was Aatrex 80W Atrazine. Other evidence established that the merchandise stolen, if Atrazine, had a value in excess of $5,000 and, taken together, the evidence warranted the jury in finding that this element of the offense was proven beyond reasonable doubt. No other trial errors were asserted on appeal.

III.

Smith and Ressler

Appellants Smith and Ressler were convicted of transporting a sawed-off shotgun in interstate commerce, having previously been convicted of a felony, in violation of 18 U.S.C. §§ 922(g) and 924(a). They were also convicted of a conspiracy to violate the same statute. 18 U.S.C. § 371.

Smith and Ressler contend that the District Judge erred in refusing to suppress a shotgun discovered protruding from underneath a coat in the vehicle in which they were riding after it had been stopped by an Iowa Highway Patrolman. They charge that the officer violated their Fourth Amendment rights by stopping the vehicle and by looking inside the vehicle once it had been stopped.

In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Supreme Court discussed the role of the Fourth Amendment in a confrontation between a citizen and a policeman investigating suspicious circumstances and said:

[I]n justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.

392 U.S. at 21, 88 S.Ct. at 1880 (footnote omitted); see Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925).

In Carpenter v. Sigler, 419 F.2d 169 (8th Cir. 1969), we adapted this test to a police officer’s routine investigation of an automobile traveling on the highway, saying:

A reviewing court must objectively evaluate the “specific and articulable facts which, taken together with rational inferences from those facts” [sic] and determine: (1) whether the facts warranted the intrusion on the individual’s Fourth Amendment rights, and (2) whether the scope of the intrusion was reasonably related “to the circumstances which justified the interference in the first place.”
419 F.2d at 171 (footnote omitted).

Our first inquiry must therefore be to determine whether stopping the automobile was reasonable under the circumstances.

Officer Naber, who testified both at the suppression hearing and at trial, was parked along Interstate Highway 29 when he observed the automobile in which appellants were riding approach his position. As it passed, he noticed that it had no license plate on the front bumper and a red and white license plate on the rear bumper. Since he knew that two states adjacent to Iowa at that time had red and white license plates and that both of the states required the plates to be affixed to both the front and rear bumpers of automobiles registered therein, Officer Naber decided to stop the car in order to make a routine check of its registration. At trial he testified that while he does not regularly stop vehicles with only one license plate, he does so occasionally (two or three times a shift).

We have readily upheld the right of a police patrol to make an investigative stop of a motor vehicle traveling under suspicious circumstances, especially where state statutes authorize the officer to make routine investigations of licenses and motor vehicle registrations. E. g., Orricer v. Erickson, 471 F.2d 1204 (8th Cir. 1973); Carpenter v. Sigler, supra; Rodgers v. United States, 362 F.2d 358, 362 (8th Cir.), cert. denied, 385 U.S. 993, 87 S.Ct. 608, 17 L.Ed.2d 454 (1966).

Similarly, the Seventh Circuit, in United States v. Jackson, 429 F.2d 1368 (7th Cir. 1970), upheld the investigative stop of an auto displaying only one state license plate, on the rear bumper, where that plate differed only one digit from a license plate number on the daily “hot sheet” list of stolen cars.

In checking the registration, Officer Naber discovered that the automobile was registered in the name of Deborah Galway. The defendants and one other male were the only persons in the automobile. In addition, Officer Naber testified that he had smelled alcohol on the breath of the driver. He saw some cans on the floor in the rear of the car and asked the passengers to get out of the car. He then walked to the right rear side of the car to observe the cans, at which time he saw through the open door the butt end of a weapon protruding from under a coat. The officer could not recall whether he opened the door himself or whether it was already open.

Of course, if the door were already open the gun was properly seized because it was in plain view. United States v. Johnson, 506 F.2d 674 (8th Cir. 1974). Assuming, however, that the officer himself opened the door, we think the officer had probable cause at such time to make a further investigation of the cans on the inside of the car to determine if the Iowa statute prohibiting the consumption of alcohol on a public highway was being violated. The scope of the intrusion was thus “reasonably related ‘to the circumstances which justified the interference in the first place.’ ” Carpenter v. Sigler, supra, 419 F.2d at 171; see United States v. Mahanna, 461 F.2d 1110, 1113 (8th Cir. 1972); United States v. Cecil, 457 F.2d 1178, 1180 (8th Cir. 1972); United States v. Turner, 442 F.2d 1146, 1147-1148 (8th Cir. 1971); Nunez v. United States, 370 F.2d 538, 539 (10th Cir. 1967). See also Wilson v. Porter, 361 F.2d 412 (9th Cir. 1966), holding that where police officers stopped a suspicious automobile which had committed no traffic violation and noticed a passenger in the car slide down in his seat as if to place something under the seat or on the floor, they were justified in shining a flashlight into the automobile and in seizing a gun whose barrel protruded from under the seat.

For the reasons stated, we affirm the judgment of conviction in each of the cases consolidated in this appeal.

      . Northern District of Iowa.

      . Moore and Geelan were tried together, as were Smith and Ressler. Both juries were empaneled on October 23, 1973. Trials were on October 24-25 and October 23-24, respectively.

      . 28 U.S.C. §§ 1821, 1861-1869,. 1871.

      . 1972 U.S.Code Congressional and Administrative News 2222.

      . Appellants also urge that the District failed to comply with its own plan for random jury selection which required the master jury wheel to be refilled between July 1 and September 30, 1973. However, the provisions of Public Law 92-269 superseded the provisions of an individual district’s plan. United States v. Grey, 355 F.Supp. 529, 535 (W.D.Okl.1973). For this reason we address in this opinion only the District’s noncompliance with the Act.

      . Appellants’ heavy reliance on Abbott v. Mines, 411 F.2d 353 (6th Cir. 1969), for the proposition that they need not show any prejudice to be entitled to the relief they seek is misplaced. The Abbott case, which was not decided under the Jury Selection and Service Act of 1968, involved the “wholesale exclusion of women,” a “defined community group.” The Sixth Circuit held that this did constitute a failure to comply with the proper jury selection process and that no showing of prejudice was necessary to warrant a reversal. The court said:
      One of our functions as a Federal Appellate Court is to watch over jury selection procedures to guard against frustration of the congressional purpose behind them. * * * Excluding defined community groups from federal juries, whether this is done by jury commissioners or as in this case by the Court itself, results in injury to the jury system. The exclusion may or may not prejudice one of the parties. But that is not the question before us. We must eliminate any tendencies that undermine and weaken the institution of jury trial as it operates in federal courts. Thiel v. United States, 328 U.S. 217, 224, 66 S.Ct. 984 [90 L.Ed. 1181] (1946). Appellant is therefore entitled to a new trial by a jury drawn from a panel that was properly constituted..
      411 F.2d at 355. Because we have held that there was no exclusion of a defined community group from the juries in the instant case, appellants’ contention that they need show no prejudice is without merit.

      . See, e. g., United States v. McVean, 436 F.2d 1120 (5th Cir.), cert. denied, 404 U.S. 822, 92 S.Ct. 45, 30 L.Ed.2d 50 (1971); United States v. Tantash, 409 F.2d 227 (9th Cir.), cert. denied, 395 U.S. 968, 89 S.Ct. 211, 23 L.Ed.2d 754 (1969); George v. United States, 196 F.2d 445 (9th Cir.), cert. denied, 344 U.S. 843, 73 S.Ct. 58, 97 L.Ed. 656 (1952); United States v. Waddy, 340 F.Supp. 509 (S.D.N.Y. 1971); United States v. Deardorff, 343 F.Supp. 1033 (S.D.N.Y.1971); United States v. Gargan, 314 F.Supp. 414 (W.D.Wis.1970), aff'd sub nom. Gast v. United States, 457 F.2d 141 (7th Cir.), cert. denied, 406 U.S. 969, 92 S.Ct. 2426, 32 L.Ed.2d 668 (1972).
      While the Act prohibits discrimination according to race, color, religion, sex, national origin or economic status in the selection of jurors, it does not prohibit age discrimination. See 28 U.S.C. § 1862.

      . Our holding should not be construed as condoning the failure of the District to comply with the mandate of the 1972 amendment, including its stated deadlines. We do not intimate a similar result under different factual circumstances.
      In view of our holding, it is unnecessary to consider the government’s alternative defense that the “savings” clause (Section 4) of Public Law 92-269 permitted the old jury wheels to be used until they had been properly refilled. Our holding also disposes of the issue of prejudice as an alternate defense. See note 6 supra.

      . Officer Naber testified that he did not recognize the automobile license as an Indiana plate until he had already signaled it to stop. Since he further testified that he did not know Indiana required only one plate, this recognition is irrelevant.

      . I.C.A. § 123.46 (Supp.1974).


author: BURNS, District Judge:

text:
    Robert S. EGGER, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 74-2196.
    United States Court of Appeals, Ninth Circuit.
    Jan. 2, 1975.

      Robert S. Egger, in pro. per.
    Stan Pitkin, U. S. Atty., Seattle, Wash., for respondent-appellee.
    Before WRIGHT and CHOY, Circuit Judges, and BURNS , District Judge.

       Honorable James M. Burns, United States District Judge, District of Oregon, sitting by designation.

   OPINION

BURNS, District Judge:

Egger appeals from a denial of his motion to vacate sentence brought under 28 U.S.C. § 2255. Appellant, a practicing attorney, was convicted of receiving and possessing money stolen in a bank robbery as prohibited by 18 U.S.C. § 2113 and of conspiring to do so in violation of 18 U.S.C. § 371. His conviction was affirmed in United States v. Egger, 470 F.2d 1179 (9th Cir. 1972); cert. denied, Egger v. United States, 411 U.S. 954, 93 S.Ct. 1931, 36 L.Ed.2d 416 (1973).

Appellant raises five separate issues by this appeal:

1. Did the District Court err in holding that any violations of Appellant’s Fifth Amendment privilege against self-incrimination constituted harmless error beyond a reasonable doubt?

2. Did the Court err in ruling that Appellant’s absence from side-bar conferences between Court and counsel did not violate F.R.Crim.P. 43 or Appellant’s Sixth Amendment right to be present at the critical stages of his trial?

3. Did the Court err in finding no evidence of prosecutorial misconduct sufficient to constitute a denial of Appellant’s Fifth Amendment right to Due Process?

4. Did the Court err in ruling that Jury Instruction Number 26 was not plain error?

5. Did the Court err in holding that Appellant’s Sixth Amendment right of confrontation regarding a witness’ present address and her use of aliases had been waived by his failure to question her regarding these subjects during the trial?

We find merit in none of these issues.

1. “No Comment” and the Fifth Amendment

During the trial Egger’s attorney failed to object to the errors complained of and thereby preserve them for appeal. Appellant correctly reminds us, however, that despite this failure by his attorney, a defendant is entitled to collaterally attack those errors that are constitutionally harmful through a § 2255 motion, providing he did not knowingly waive his right to object to them as a defendant during his trial. Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969); cf. Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). He further reminds us that before a Federal constitutional error may be considered harmless, the Government must demonstrate beyond a reasonable doubt that the error complained of did not contribute to the defendant’s conviction. Chapman v. State of California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). We are convinced that the Government has met this burden.

Before his arrest, Appellant was interviewed by two FBI agents who advised him of his right to remain silent. He agreed to this interview, but reserved the right to answer selectively. He answered “no comment” to the very first question concerning his possession or knowledge of bank money stolen by one of his clients, as well as to several other questions. During his trial, one of the agents was permitted to testify to these “no comment” responses. On cross-examination the United States Attorney was allowed to ask Appellant to explain his reasons for answering “no comment.” Appellant believes that these references to his silence when accused constitute an infringement of his constitutional privilege against self-incrimination.

Appellant’s failure to object to these abuses during the trial operates as a waiver of the privilege itself. Laughlin v. United States, 411 F.2d 1224 (9th Cir. 1969). However, the District Court chose to extend the doctrine of Kaufman v. United States, supra, and allowed these errors to be raised through a § 2255 motion. We agree with the Court’s finding that:

“ . . . considering the quality and substantial quantity of credible evidence adduced at the trial, the testimony concerning the ‘no comment’ answers was harmless beyond a reasonable doubt. . . . ”

Appellant was thoroughly implicated by the testimony of witnesses other than the FBI agents. His own testimony effectively answered each of the three questions to which he had earlier replied “no comment.” The error, if any, arising from comment upon these responses was constitutionally harmless.

2. Side-Bar Conferences and the Sixth Amendment

Appellant complains that his absence during the trial from side-bar conferences between the Court and counsel for both sides constitutes a violation of Rule 43 F.R.Crim.P. and the Sixth Amendment. However, Egger never asked to attend any of these side-bar conferences nor was he prevented from doing so. He was, in fact, physically present throughout the trial, which is all that Rule 43 and the Sixth Amendment would seem to require. Any greater “right to be present” was effectively waived by Egger’s failure to request it.

Appellant relies upon Stein v. United States, 313 F.2d 518 (9th Cir. 1962) to support his contention that a defendant’s absence from side-bar conferences can be prejudicial, and uses the rationale of Kaufman v. United States, supra, as a basis for raising this issue in a § 2255 motion. Stein requires that before this absence will constitute prejudicial error, “The presence of a defendant must bear a reasonably substantial relationship to the opportunity to defend.” Supra, p. 522. After a careful review of the record, the Stein panel concluded that there had been no prejudice to the defendant. We are of a like opinion regarding the Appellant. Egger was represented at trial by an experienced criminal defense attorney with a reputation for responsibility and effectiveness. In each of the significant sidebar conferences from which Appellant was absent, counsel for defense argued strongly and effectively on Appellant’s behalf whenever his rights as a defendant were threatened. Egger’s presence would have added nothing substantial to his opportunity to defend. No error resulted from his absence; in any event, any error appropriately raised under the Kaufman rationale was constitutionally harmless as required by Chapman v. State of California, supra.

3. Prosecutorial Misconduct Claim

Appellant points to several actions by the United States Attorney which he believes are constitutionally prohibited misconduct. None were objected to at trial, and each is grounds for relief only if it may be raised in a § 2255 motion as permitted by Kaufman, supra. Appellant believes that the cross-examination of his character witness as to pri- or arrest and acquittal of Appellant, was prejudicially improper because it affected his credibility before the jury. Cross-examination of a defendant’s character witness as to the arrest of the defendant is permissible in order to test the sufficiency of the witness’ knowledge as to the defendant’s good reputation in the community. McCowan v. United States, 376 F.2d 122, 124 (9th Cir. 1967); see Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948). The United States Attorney’s cross-examination satisfied this standard. It included a reference to Appellant’s acquittal as well as to his arrest. Its acceptance by the trial judge involved no abuse of discretion and produced no reversible error.

Appellant argues that permitting a witness to refresh her recollection from notes taken from an unintelligible tape recording of a conversation between herself and Appellant was improper. This issue was raised on appeal and found unworthy of discussion. United States v. Egger, supra, 470 F.2d at 1182. Issues raised at trial and considered on direct appeal are not subject to collateral attack under 28 U.S.C. § 2255. Clayton v. United States, 447 F.2d 476 (9th Cir. 1971); Jordan v. Richardson, 443 F.2d 32 (9th Cir. 1971).

Appellant argues, however, that his § 2255 motion raises a separate aspect of this question not considered on direct appeal. We are unable to grasp Appellant’s distinction between a general objection to a witness’ use of such tape recording to refresh her memory and a specific objection to their use as it affects the Appellant. Grounds which were apparent on original appeal cannot be made the basis for a second attack under § 2255. Medrano v. United States, 315 F.2d 361, 362 (9th Cir. 1963).

Appellant’s third objection is to two alleged violations by the United States Attorney of a court order regarding sequestration of a government witness. The trial court considered both incidents and ruled that neither had violated its sequestration ruling. No objection to these rulings was made at trial. There is no evidence of harmful error sufficient to sustain § 2255 relief under the rationale of Kaufman.

Appellant’s final claim of prosecutorial misconduct concerns his own cross-examination. He objects to a number of tactics used by the United States Attorney to discredit him as a witness. No objection to these tactics was offered at trial. The District Court, relying upon Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624 (1931), found nothing improper in the prosecutor’s vigorous cross-examination of Appellant and denied § 2255 relief. “The extent of cross-examination with respect to an appropriate subject of inquiry is within the sound discretion of the trial court.” Alford, supra, at 694, 51 S.Ct. at 220; Smith v. State of Illinois, 390 U.S. 129, 132, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968). Absent plain abuse of . the Court’s discretion on the latitude of cross-examination, there is no reversible error. Young Ah Chor v. Dulles, 270 F.2d 338, 342 (9th Cir. 1959).

4. Instruction on Guilty Intent

Appellant also argues that Jury Instruction Number 26 was improper. Appellant failed to object to this instruction and his attorney expressly agreed to it. Appellant’s contention that defense counsel was effectively prohibited from objecting to Instruction 26 is not supported by the record. Under Rule 30 F.R.Crim.P. no error may be assigned on appeal unless an exception was taken to the instructions given to the jury. United States v. Carey, 475 F.2d 1019, 1022 (9th Cir. 1973).

Appellant believes that despite his failure to object, Kaufman, supra, allows him to seek § 2255 relief. The District Court refused to accept this argument. Collateral relief is not available to set aside a conviction on the basis of erroneous jury instructions unless the error had such an effect on the trial as to render it so fundamentally unfair that it constitutes a denial of a fair trial in a constitutional sense. Lorraine v. United States, 444 F.2d 1 (10th Cir. 1971). A court may instruct a jury as to the special interests of a defendant’s own testimony, as it did here. United States v. Tyers, 487 F.2d 828, 831 (2nd Cir. 1973); Louie v. United States, 426 F.2d 1398, 1402 (9th Cir. 1970). Applying Kaufman, Instruction 26 produces no constitutional unfairness that justifies § 2255 relief.

5. Address and Alias of Witness and the Sixth Amendment

Appellant contends that his constitutional right of confrontation was impaired when he was denied an opportunity at trial to elicit the present address and recent aliases of the Government’s chief witness. His purpose was to challenge the credibility of this witness by placing her in her proper setting. Since the question of recent aliases was not raised in Appellant’s original § 2255 motion, we need not consider it here. Boyden v. United States, 407 F.2d 140 (9th Cir. 1969). Regarding the witness’ present address, Appellant waived his right to this information by failing to ask for it during the trial. Appellant suggests, however, that this failure was the result of a side-bar agreement to which Appellant was not a party. He seeks an evidentiary hearing to establish whether or not such an agreement existed and resulted in prejudice.

Appellant’s § 2255 motion was reviewed by the original trial judge who would himself have been a party to the agreement alluded to by the Appellant. In denying the request for relief, the Court failed to mention any such agreement. Furthermore, if an agreement existed, the extent of cross-examination of this witness was clearly within the sound discretion of the trial court. Alford, supra, 282 U.S. at 694, 51 S.Ct. 218; Smith, supra, 390 U.S. at 132, 88 S.Ct. 748. Appellant suggests that the motive for limiting cross-examination of this witness was the Court’s belief that disclosure of her address would endanger her safety. Alston v. United States, 460 F.2d 48 (5th Cir. 1972), upon which Egger relies, requires a witness to normally answer all questions regarding his or her background. Alston recognizes exceptions, however, including those situations where the physical safety of the witness or her family might be endangered by such a disclosure, ibid., at 52. United States v. Marti, 421 F.2d 1263, 1266 (2nd Cir. 1970); see Smith, supra, 390 U.S. at 134, 88 S.Ct. 748 (Mr. Justice White, concurring). If, in fact, the Court chose to protect this witness through an informal agreement with counsel as the Appellant claims, his decision to limit cross-examination in this manner was within the exception created by Alston, supra, and would not have been prejudicial to the Appellant.

The District Court’s denial of Appellant’s motion to vacate sentence pursuant to 28 U.S.C. § 2255 is affirmed.

      . "The court has received certain evidence presented by the defendant, Robert S. Egger, of a number of statements purported to. be made by him between August 1970, and April 1971, concerning the money located in the Yakima safe deposit box, and his refusal to accept stolen money as a fee for his services. Such testimony normally is not received during a trial of this nature for the reason it is considered to be hearsay and self-serving, that is, an individual purposely may make statements to others in order later to have such testimony available for his defense. “You must view this testimony with caution and weigh it carefully in the light of all the other evidence in the case, and you must disregard it entirely if convinced that defendant Egger made these statements for self-serving purposes. However, if not so convinced, you may consider these statements, together with all the other evidence, to whatever extent you find them to be of value upon the issue of defendant Egger’s intent to commit the crimes charged in the indictment.”


author: ALDISERT, Circuit Judge.

text:
    George B. GREENE v. The SINGER COMPANY, Appellant.
    No. 71-1835.
    United States Court of Appeals, Third Circuit.
    Submitted Sept. 24, 1971.
    Decided Nov. 2, 1971.
    See also, 3 Cir., 461 F.2d 242.
    Dickinson R. Debevoise, Riker, Danzig, Scherer & Brown, Newark, N. J., for The Singer Co.; Winthrop, Stimson, Putnam & Roberts, Brumbaugh, Graves, Donohue & Raymond, New York City, of counsel.
    David R. Simon, Simon & Allen, Newark, N. J., for George B. Greene.
    Before VAN DUSEN, ALDISERT and GIBBONS, Circuit Judges.
   OPINION OF THE COURT

SUR APPELLEE’S MOTION TO DISMISS

ALDISERT, Circuit Judge.

Appellee’s motion to dismiss this appeal requires us to decide whether the district court’s order denying a petition to disqualify one of appellee’s lawyers in the trial of a patent case constitutes a final, and therefore appealable, order under the collateral rule enunciated in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Although a previous order of this court dated September 7, 1971, denied leave to appeal pursuant to provisions of 28 U.S.C.A. § 1292(b), the precise issue posited by this motion has not previously been before us.

The complaint charged the Singer Company with acts constituting unfair competition, violations of the antitrust laws, and patent infringement. Rankin A. Milliken, one of plaintiff’s lawyers, had previously been employed as a patent attorney for Friden, Inc., a corporation subsequently acquired by defendant Singer. Defendant alleged that, while in Friden’s employ, Milliken represented the company in the matter which is the subject of this lawsuit. The district court refused to disqualify Milliken. from representing plaintiff, but did issue an order prohibiting Milliken from disclosing, using, or providing access to confidential information received by way of his employment with Friden.

The finality vel non of an order regulating an attorney’s trial participation is not a question of first impression in other circuits. The Second and Ninth Circuits have held the Cohen rule inapplicable. The Fifth Circuit, however, has found sufficient collateral finality to render such an order appealable. We have decided that the approach followed by the Fifth Circuit is preferable here.

The question of the attorney’s participation at trial was “not an ingredient of the cause of action and [did] not require consideration with it.” Cohen v. Beneficial Industrial Loan Corp., supra, 337 U.S. 546-547, 69 S.Ct. 1226. Thus, we may consider the second prong of the Cohen test: whether the matter “fall[s] in that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” 337 U.S. at 546, 69 S.Ct. at 1225-1226.

To require appellant to await a final judgment on the merits before testing the legality of the order denying the disqualification may, for practical purposes, deny it the reality of appellate processes. The precise question is whether the prohibitions imposed by the court order are sufficient to protect the interests of the defendant during the course of the trial. If, upon post-trial review, it were held that the safeguards imposed by the district court were too fragile to protect threatened interests, there could be damage inflicted upon the litigant for which the law would provide no practical remedy. Conversely, if the appeal goes forward now, prior to trial, the possibility of irreparable injury would be substantially lessened.

We do not hold that every ruling relating to conflict of interest by an attorney should activate the Cohen rule. We decide only that these facts present a compelling argument that the “rights asserted in the action [are] too important to be denied review and too independent of the cause itself” to require a postponement of appellate consideration.

Accordingly, we hold that the June 30, 1971, order of the district court comes within the collateral rule doctrine of Cohen v. Beneficial Industrial Loan Corp., supra, and is a final, and, therefore, appealable order.

Appellee’s motion to dismiss will be denied.

      . Fleischer v. Phillips, 264 F.2d 515 (2d Cir.), cert. denied, 359 U.S. 1002, 79 S.Ct. 1139, 3 L.Ed.2d 1030 (1959); Marco v. Dulles, 268 F.2d 192 (2d Cir. 1959); Willheim v. Murchison, 312 F.2d 399 (2d Cir. 1963); Cord v. Smith, 338 F.2d 516, 521 (9th Cir. 1964).

      . Tomlinson v. Florida Iron & Metal, Inc., 291 F.2d 333 (5th Cir. 1961) and Uniweld Products, Inc. v. Union Carbide Corp., 385 F.2d 992 (5th Cir. 1967).

      . “Every interlocutory order involves, to some degree, a potential loss. That risk, however, must be balanced against the need for efficient federal judicial administration as evidenced by the Congressional prohibition of piecemeal appellate litigation. To accept [a contrary] view is to invite the inundation of appellate dockets with what have heretofore been regarded as nonappealable matters.” Borden Co. v. Sylk, 410 F.2d 843, 846 (3d Cir. 1969).