author: MOORE, Circuit Judge: MULLIGAN, Circuit Judge

text:
    UNITED STATES ex rel. George WHITMORE, Jr., Relator-Appellant, v. Bernard J. MALCOLM, New York City Commissioner of Correction, et al., Respondents-Appellees.
    No. 286, Docket 72-1706.
    United States Court of Appeals, Second Circuit.
    Argued Oct. 27, 1972.
    Decided Jan. 22, 1973.
    Rehearing En Banc Granted March 1, 1973.
    Order April 23, 1973.

      Myron Beldock, New York City (Beldock, Levine & Hoffman, New York City, and Arthur H. Miller, Brooklyn, N. Y., of counsel), for relator-appellant.
    Hillel Hoffman, Asst. Atty. Gen. of New York, New York City (Louis J. Lefkowitz, Atty. Gen. of New York, and Samuel Hirshowitz, Asst. Atty. Gen., New York City, of counsel), for respondents-appellees.
    Aaron Nussbaum, Asst. Dist. Atty., Brooklyn, N. Y., as amicus curiae for the People of State of New York.
    Before MOORE, HAYS and MULLIGAN, Circuit Judges.
   MOORE, Circuit Judge:

This is an appeal from an order of the United States District Court for the Eastern District of New York, Hon. Walter Bruchhausen, Judge, entered on May 31, 1972, which denied without a hearing appellant’s petition for a writ of habeas corpus. We affirm the order of the District Court.

I.

In November, 1964, George Whitmore, Jr., was tried by a jury in Kings County, New York, and convicted of the crimes of attempted rape in the first degree and assault in the second degree. The trial justice set aside this conviction because of jury misconduct and widespread unfavorable publicity. People v. Whitmore, 45 Misc.2d 506, 257 N.Y.S.2d 787 (Sup.Ct.1965). Whitmore was tried a second time on these same charges in May, 1966. He was again convicted. This conviction was set aside by the Appellate Division of the Supreme Court of the State of New York because the defense had been improperly limited in its cross-examination regarding Whitmore’s confession. People v. Whitmore, 27 A. D.2d 939, 278 N.Y.S.2d 706 (1967). On May 15, 1967, Whitmore was again tried for these crimes. The jury found him guilty, and on June 8, 1967, he was sentenced to concurrent terms of five to ten years for attempted rape and two and one-half to five years for assault. This conviction was appealed. The Appellate Division remanded the matter to the trial court for a hearing to determine whether the identification of Whitmore by the victim of the assault had been tainted by an improper show-up identification at the police station. People v. Whitmore, 30 A.D.2d 877, 293 N.Y.S.2d 712 (1968).

This hearing, like the trial, was held before Justice Helfand, Supreme Court, Kings County. After an extensive hearing the court concluded that the in-court identification of Whitmore by the complainant had been independent of the improper police station show-up and that this in-court identification could have been made without the objectionable procedure at the station.

While his appeal from this conviction was still pending in the Appellate Division, Whitmore moved in the trial court to dismiss the indictment or for a new trial based on newly discovered evidence. On December 30, 1969, the trial justice denied this application because he believed this “newly discovered evidence” had been available to Whitmore prior to his third trial and that it would not have affected the verdict of the jury in any case.

The Appellate Division affirmed Whitmore’s conviction and the orders of the court denying his motion to suppress the identification testimony and his application for a new trial. People v. Whitmore, 35 A.D.2d 607, 313 N.Y.S.2d 433 (1970). The New York Court of Appeals affirmed Whitmore’s conviction in a four to three decision. 28 N.Y.2d 826, 322 N.Y.S.2d 65, 270 N.E.2d 893, (1971). The Supreme Court denied certiorari. 405 U.S. 956, 92 S.Ct. 1180, 31 L.Ed.2d 233 (1972).

Whitmore filed a petition for a writ of habeas corpus in the Eastern District of New York five years after his third trial and conviction and eight years after the crime had been committed. His petition sought release on bail pending determination of his case and asserted violations of constitutionally guaranteed rights. The District Court heard argument of appellant’s claims, refused to hold an evidentiary hearing, and dismissed the petition. A certificate of probable cause was denied by the District Court; such certificate was granted by this Court on July 18, 1972; appellant’s application for bail pending appeal was denied.

II.

A brief account of the facts is required to understand appellant’s claims and our disposition of this appeal.

Shortly after midnight, April 23, 1964, Mrs. Elba Borrero was assaulted as she returned home from work. Her attacker grabbed her from behind and forced her into an alley. Before the attacker could carry out his expressed intention of killing and raping her, Patrolman Isola of the New York City Police Department arrived and broke up the attack. Officer Isola chased the perpetrator and'fired four shots at him, but was not able to apprehend him.

Isola’s official police report, his personal notebook, and the first alarm given to police radio cars described Mrs. Borrero’s attacker as a male Negro, twenty to twenty-five years old, five feet nine inches tall, weighing 165 pounds. About 7:00 A.M. that same morning, Isola, who had resumed his patrol, came upon Whitmore at a laundromat close to the scene of the Borrero attack. Whitmore was five feet six inches tall, weighed 130 pounds, and had a light complexion and pockmarked face. Although Isola had come within fifteen feet of Mrs. Borrero’s attacker and had shone a flashlight at him, he did not then suspect that Whitmore might be that man. Isola asked Whitmore a few questions and then continued on his beat.

Because ten days earlier there had been a rape-murder of one Minnie Edmonds only a few blocks from where Mrs. Borrero was attacked, and because the detective investigating the Edmonds’ crime, Detective Aidala, believed there was a similarity between these two crimes, Detective Aidala took over the Borrero case from the detective to whom it had been assigned. Aidala contacted Isola, interviewed Mrs. Borrero, and on April 24, 1964, accompanied by Isola, took Whitmore into custody.

III.

Whitmore was brought to the police station early that morning. Mrs. Borrero was summoned a few moments later. She viewed Whitmore standing alone in a room and identified him as her assailant.

By midnight of April 24, 1964, after having been in custody for seventeen hours, Whitmore had “confessed” to the Borrero attack, the Edmonds murder, and to the rape-murders of two other young women named Wylie and Hoffert. The charges against Whitmore in the Edmonds case were later dropped. The Wylie-Hoffert confession has since been proved false.

Whitmore’s confession in the Borrero case was not used in his third trial on those charges because of a mutual misconception on the part of all the attorneys and the trial justice that Miranda v. Arizona applied to retrials after its effective date.

Without the confession the case against Whitmore rested entirely on the identification of him by Mrs. Borrero. Discrepancies between the first descriptions of the attacker, which do not describe Whitmore and which presumably came from Mrs. Borrero, and Mrs. Borrero’s description of the assailant after she had seen Whitmore at the police station, have led appellant to question her identification of him at all three trials. Since this attack on Mrs. Borrero’s identification was the heart of his defense, when certain items of “newly discovered evidence” were developed at the identification hearing, Whitmore moved to dismiss the indictment or, in the alternative, for a new trial.

At the identification hearing Mrs. Borrero disclosed that she had actually viewed Whitmore twice at the early morning show-up on April 24, 1964. Each of these views was through a peephole into a room in which Whitmore stood alone. For the second, previously unreported viewing, Whitmore was told to wear his hat and coat. Appellant claims that this second show-up was required because Mrs. Borrero did not at first recognize him. Appellant further claims that a guilty verdict would not have been returned if the jury had known that there had been two show-ups. Appellant believes that this information, together with his other evidence, including the inconsistencies between the first description of the attacker and Mrs. Borrero’s later descriptions (which more accurately describe Whitmore) create a strong case against the Borrero identification. Since the State’s entire ease rested on this identification and since appellant asserts that the second showup was new evidence which would have enabled Whitmore to successfully attack this crucial identification, appellant argues that the New York courts at the very least, should have granted him a new trial. Appellant notes that this additional piece of information might well have led defense counsel to “tell the jury the whole shameful story of the events at the stationhouse on the day of the confessions and of Mrs. Borrero’s identification.” (Appellant’s Reply Brief, p. 4.)

At the identification hearing, Whit-more’s attorney also learned that Detective Aidala had interviewed an eyewitess to the attack on Mrs. Borrero. Aidala’s notebook contained the following remarks:

Sister-in-law saw he [sic] grab me from her window.
(Celeste Viruet . . .) [addresses and phone numbers]
M — Negro
Tan or beige coat — long coat — cloth. No hat. 5'7" or 8" — 26 or 7 years.

This description, if it came from Celeste Viruet, is an independent description which Whitmore claims is favorable to him. Whitmore argues that the Viruet description would have been especially helpful to the defense since it too describes a man, older and taller than Whitmore, who was wearing a long coat and no hat. The claim is made that this evidence would have opened up new lines of attack on Mrs. Borrero’s identification of Whitmore. Appellant further claims that he should not have been indicted by a grand jury or convicted by a trial jury which did not have the opportunity to consider the description of an eyewitness, which description, he says, is favorable to him. Appellant charges that New York has “deliberately suppressed” both these items. The result of this “suppression”, Whitmore believes, was that he has been denied due process of law and that his petition for a writ of habeas corpus should, therefore, be granted.

IV.

The “additional” show-up, during which Whitmore wore his coat and hat, occurred only a few minutes after the “first” show-up. There is no evidence that it was Mrs. Borrero who requested that Whitmore don his hat and coat so that she could better identify him; indeed, she testified that she did not make this request. We know that as soon as she caught sight of Whitmore she became frightened and began to cry. It was after she had regained her composure that she viewed the suspect again, this time with his hat and coat on.

Appellant’s suggestion that Mrs. Borrero must have requested to see Whitmore with his hat and coat because she could not recognize him otherwise is contradicted by the undisputed fact that immediately upon seeing him she said, “This is the man,” and became very distraught. This recognition at the first instant is bolstered by her becoming upset and frightened immediately thereafter. We cannot say that the police in charge of this show-up should have insisted that Mrs. Borrero continue to look through the peephole while Whitmore donned his coat and hat. The “second” viewing occurred between ten and thirty minutes after the “first”. Under the circumstances we have no difficulty concluding that there was only one show-up which was understandably interrupted when Mrs. Borrero became upset upon recognizing the man whom she believed, only thirty hours before, had threatened to kill and rape her.

And even if we did agree that there were two show-ups here, this fact could not be deemed to be of sufficient import in this case to warrant the granting of the petition sought here. The defense has attacked Mrs. Borrero’s identification of Whitmore at three separate jury trials. Appellant places great emphasis on the fact that the initial descriptions of the attacker, which presumably would have come from Mrs. Borrero herself, do not describe Whit-more at all. In addition, appellant points out that while the early descriptions affirmatively state that the attacker was not wearing a hat, Mrs. Borrero later claimed that he was wearing one. Appellant also suggests a possible motive for the apparent changes in Mrs. Borrero’s description of her assailant. A reward of $10,000 had been offered for the capture of the Wylie-Hoffert murderer(s). After Mrs. Borrero had identified Whitmore she visited some lawyers to discuss collecting this reward.

All of the above, however, has been fully explored in three jury trials and at the identification hearing. It has not persuaded any of those who have considered it. We do not believe that the additional knowledge of the “second” show-up could have changed the result in this case. A further reason for refusing to deem this “second” show-up “new evidence” requiring a new trial, a federal evidentiary hearing, or the granting of a petition for a writ of habeas corpus is that all the arguments presented to us now were considered at Justice Helfand’s post-trial identification hearing. Whitmore’s claim that this is important new evidence was rejected there and appealed and argued to the Appellate Division and the New York Court of Appeals. Having been rejected in each of these courts, this aspect of the case merits no further consideration in the Federal Courts.

V.

Appellant’s claim that the prosecution suppressed evidence of the only eyewitness to the crime is similarly insufficient to warrant any federal interference in his State imprisonment.

From the sketchy reference in Detective Aidala’s notebook it appears that Mrs. Borrero told Aidala that her sister-in-law had seen the perpetrator grab her. The description that follows the name and address of Celeste Viruet seems to indicate that Aidala later talked to her and copied this description from her. This is not clear but it is a fair inference from these sketchy notes. At the identification hearing ordered by the Appellate Division after the third trial some five years after the crime and the investigation, Detective Aidala was not certain that he had talked with Celeste Viruet and gotten that description from her.

Whitmore’s attorneys state that they did not know of this eyewitness until the post-trial identification hearing held in April, 1969. The State contends that the existence of the eyewitness was not deliberately kept from defense counsel and that the attorneys who represented Whitmore in the Edmonds case had Aidala’s notebook at that trial and must have noted the reference which counsel now finds so important. Whitmore’s present counsel argues that the page on which these notes appear was not available to counsel at the Edmonds trial and that even if it were, it would have been of no interest since there was nothing on that page concerning the Edmonds case.

Appellant’s argument here is that Mrs. Borrero’s identification could have been better attacked had his attorneys known of this eyewitness'. However, regardless of whether Whitmore’s attorneys knew about the eyewitness before the hearing, they did learn of her during that hearing. Appellant had convinced the Appellate Division of the necessity for such a hearing. That was the proper occasion in which to attack the identification of Whitmore by calling the eyewitness to determine what she knew and with whom she had spoken in 1964. No attempt was made to call that witness at the identification hearing.

Justice Helfand found:

The Court finds that Mrs. Borrero would have been able to identify the defendant in Court even if the objectionable procedure in the station house had not been followed. * * * [T]he Court concludes that her in-Court identification was of an independent source and origin and in no way predicated upon the tainted show-up at the station house. * * There was the unmistakable ring of truth to her testimony. It was direct; it was positive; it was clear and convincing.
Minutes of Hearing, April 8, 1969, at 656-57.

This determination by the trial justice was reviewed in the Appellate Division and argued twice in the Court of Appeals. The same arguments Whit-more makes here, he has previously made in each of these courts. The standard of proof at the identification hearing was that the evidence must be “clear and convincing” that the identification was untainted. People v. Ballott, 20 N.Y.2d 600, 606, 286 N.Y.S.2d 1, 6, 233 N.E.2d 103 (1967); People v. Rahming, 26 N.Y.2d 411, 416, 311 N.Y.S.2d 292, 296, 259 N.E.2d 727 (1970).

Query, what was there, if anything, in the Viruet description that could possibly upset this finding and affirmance on appeal? Mrs. Borrero’s identification was direct and positive, clear and convincing. Mrs. Viruet had described the attacker as five feet seven inches tall; Whitmore is actually five feet six inches tall. She claimed he was wearing a long coat; Whitmore’s coat was a three-quarter length. She said the attacker had no hat; Mrs. Borrero claims there was a hat. The only significant difference at all between the eyewitness description and Whitmore himself concerns the hat. The hat Whitmore was wearing when he was arrested was one which can be worn close to the head so that it might not be easily discerned from a distance at 1:00 A.M. on a dark night.

The description given by this eyewitness does not merit the label “new evidence”. It is virtually identical to the other descriptions, except where it better describes Whitmore than these other reports. Thus, even if Whitmore’s counsel had not known about the lady in the window, the discovery of her existence after trial does not warrant the granting of a new trial, and denial of such a new trial cannot be seen as a violation of Whitmore’s right to due process of law.

VI.

In Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), the Supreme Court stated the role of the writ of habeas corpus:

Its root principle is that in a civilized society, government must always be accountable to the judiciary for a man’s imprisonment: if the imprisonment cannot be shown to conform with the fundamental requirements of law, the individual is entitled to his immediate release. * * * Vindication of due process is precisely its historic office.
372 U.S. at 402, 83 S.Ct. at 829.

Appellant here claims that he has been denied due process because the State suppressed evidence favorable to him and because the State refused to grant him a new trial upon the discovery of “new evidence”. The standards for granting petitions for habeas corpus based on allegations of newly discovered evidence are set forth in Townsend v. Sain, 372 U.S. 293, 317, 83 S.Ct. 745, 759, 9 L.Ed.2d 770 (1963):

Where newly discovered evidence is alleged in a habeas application, evidence which could not reasonably have been presented to the state trier of facts, the federal court must grant an evidentiary hearing. Of course, such evidence must bear upon the constitutionality of the applicant’s detention; the existence merely of newly discovered evidence relevant to the guilt of a state prisoner is not a ground for relief on federal habeas corpus.

The Court continues by noting that:

The conventional notion of the kind of newly discovered evidence which will permit the reopening of a judgment is, however, in some respects too limited. * * * If, for any reason not attributable to the inexcusable neglect of petitioner, * * * evidence crucial to the adequate consideration of the constitutional claim was not developed at the state hearing, a federal hearing is compelled.
372 U.S. at 317, 83 S.Ct. at 759. (emphasis added)

Neither the second show-up nor the eyewitness qualifies as evidence which “bear[s] upon the constitutionality of the applicant’s detention”. This is obvious with respect to the show-up; it should also be obvious from a reading of the description which the eyewitness gave to Detective Aidala. Analysis of either piece of “new” evidence only provides additional proof of Whitmore’s guilt. Neither can be characterized as an item of “evidence crucial to the adequate consideration of the constitutional claim.”

Appellant also asserts that his petition should be granted because the State deliberately suppressed both items of evidence. In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the Supreme Court held that:

[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.
373 U.S. at 87, 83 S.Ct. at 1197.

We believe, however, that both of these items of evidence would make the State’s case against Whitmore even stronger. Since we are, therefore, not dealing with a case where “evidence favorable to an accused” has been kept from him, we need not consider appellant’s claim that the evidence here was suppressed by the prosecution.

In sum, we believe that Judge Bruchhausen acted properly when he denied appellant’s petition for a writ of habeas corpus.

The order is affirmed.

MULLIGAN, Circuit Judge

(dissenting) :

I agree with the majority that the so-called suppression of a- second show-up of Whitmore constitutes no basis for federal action here. The State has already conducted a post-trial evidentiary identification hearing at which Mrs. Borrero testified and was cross-examined. There is no new evidence and no suppression.

The alleged suppression of the existence of an eyewitness to the assault on Mrs. Borrero, in my view, presents a compelling ground for the holding of the evidentiary hearing denied the appellant by the court below.

Appellant urges here, as he did in the district court, that it was not until the Spring (March-May) 1969 post-trial evidentiary hearing that counsel for Whit-more ever learned that there was an eyewitness to the assault on Mrs. Borrero. It was then ascertained that Detective Aidala who was in charge of the Minnie Edmonds’ murder investigation and took over the Borrero case because of a possible similarity of modus operandi, kept a notebook which indicated that Celeste Viruet, the sister-in-law of the victim, had seen her being grabbed in the early morning of April 23, 1964 while looking out of her apartment window. Counsel for Whitmore in all three Borrero trials have submitted affidavits denying that they ever knew of or were advised of the existence of Celeste Viruet, the silent witness in the window. Celeste Viruet was never called by the State in any of the trials nor has she ever appeared in any evidentiary or other proceeding relating to Whitmore. The State makes no contention that defense counsel was ever specifically advised of the existence of this witness. The State only claims that the notebook of Detective Aidala was made available to counsel for Whit-more when he was being defended on the charge of murdering Minnie Edmonds. The record does not at all establish that even in this other case where counsel’s concern was for a different crime, all pages of the notebook were made available. This is a disputed fact and no evidentiary hearing has ever been conducted on this question in any State proceeding.

In this case Whitmore’s guilt ultimately rested solely upon the identification by the victim. The significance therefore of an eyewitness to the crime in the preparation of Whitmore’s defense is obvious. See Roviaro v. United States, 353 U.S. 53, 64, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957).

There are disputed questions of fact here which have never been determined in any State court evidentiary hearing. The existence of Celeste Viruet was disclosed in the Spring, 1969 evidentiary hearing after Whitmore had been convicted. However, the question to be determined in that proceeding was whether the one-man show-up of Whitmore tainted Mrs. Borrero’s subsequent in-court identification. Hence, Judge Helfand was not concerned about the role of Celeste Viruet.

The Court: I permitted you to go far afield about the business of the sister-in-law. I am going to exclude any further questions about it.
She was not a witness before me and whether he interviewed her or did not interview her or she gave him certain information, has some slight bearing on the issues here.
Q. Did Mrs. Borrero tell you that her sister-in-law saw-—
The Court: No, that is excluded; I don’t care what she told her. It is excluded. Now go to something new. Enough about the sister-in-law.
Mr. Beldock: Yes, your Honor.
(Transcript of hearing at 522, 523).

Subsequently, Whitmore moved to dismiss the indictment on the ground of the suppression of this evidence. This motion was denied by Judge Helfand by order dated December 30, 1969, without a hearing. Under the circumstances, an evidentiary hearing is mandated in the federal district court:

Where the facts are in dispute, the federal court on habeas corpus must hold an evidentiary hearing if the habeas applicant did not receive a full and fair evidentiary hearing in a state court, either at the time of the trial or in a collateral proceeding. In other words a federal evidentiary hearing is required unless the state-court trier of fact has after a full hearing reliably found the relevant facts.
Townsend v. Sain, 372 U.S. 293, 312-313, 83 S.Ct. 745, 757, 9 L.Ed.2d 770 (1963) (footnote omitted); see 28 U.S.C. § 2254(d).

The majority here seeks to avoid Townsend v. Sain by finding that the new evidence of the eyewitness does not bear upon “the constitutionality” of Whitmore’s detention nor is it “crucial” since in any event her testimony would not help Whitmore but would in fact strengthen the State’s case against him. Neither proposition is tenable. The claim here is not that the defendant didn’t know about an eyewitness to the crime but rather that the State knew and deliberately suppressed and concealed her existence from the defense. This is unquestionably of constitutional magnitude. Brady v. Maryland, 373 U. S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

The argument of the State adopted by the majority here that we can disregard Celeste Viruet’s existence because her testimony would have only hurt the defense and helped the State, has to be rejected. The description in Aidala’s notebook while not accurately describing Whitmore, has only the virtue of being more accurate than that contained in the original police alarm which was presumably supplied by Mrs. Borrero. We don’t even know for sure if the description in the book was supplied by Celeste Viruet since Aidala wasn’t positive that he had even interviewed her. In any event what the lady in the window saw and what she might testify to, is not known since she has never appeared in any proceeding to date. The fact that there was another eyewitness not called by the State in a case which in substance depended primarily upon Mrs. Borrero’s identification of her assailant, cannot be disregarded.

Having taken a position that the evidence of Celeste Viruet would be somehow “favorable” to the State, the majority concludes “we need not consider appellant’s claim that the evidence here was suppressed by the prosecution.” However, a federal court’s task is to determine both materiality of the evidence and whether its suppression was intentional or inadvertent. United States v. Keogh, 391 F.2d 138, 146-148 (2d Cir. 1968) and 440 F.2d 737, 741 (2d Cir.), cert. denied, 404 U.S. 941, 92 S.Ct. 285, 30 L.Ed.2d 254 (1971). Neither factor can be ascertained here without an evidentiary hearing.

PETITION FOR REHEARING EN BANC GRANTED

A petition for rehearing containing a suggestion that the action be reheard en banc having been filed herein by counsel for the appellant, and a majority of the judges in active service having voted in favor of such rehearing,

It is hereby

Ordered that said petition be and it hereby is granted. Reconsideration will be had, without further oral argument, on the record and on the briefs heretofore filed and to be filed. The parties are requested to file further briefs on or before March 16, 1973, addressed, but not limited, to the progress of the investigation presently being conducted by the Kings County District Attorney.

ORDER

It is hereby ordered that the motion made herein by Myron Beldock, Esq., counsel for the relator-appellant in the form of a letter dated April 10, 1973 is granted, the district court’s order denying the petition for habeas corpus is vacated, and the appeal is dismissed as moot.

      . Minutes of Hearing conducted by 1-Ion. Walter Bruehhausen, United States District Judge, Eastern District of New York, dated May 23, 1972.

      . Bee discussion of this show-up infra.

      New York law is clear that where the pretrial identification procedure is unnecessarily suggestive or conducive to erroneous identification, the state must show by clear and convincing evidence that the in-eourt identification was not the product of, and was not affected by, the improper pretrial sliow-up. People v. Logan, 25 N.Y.2d 184, 191, 303 N.Y.S. 2d 353, 358, 250 N.E.2d 454 (1969); People v. Ballott, 20 N.Y.2d 600, 606-607, 286 N.Y.S.2d 1, 6, 233 N.E.2d 103 (1967); People v. Rahming, 26 N.Y.2d 411, 416, 311 N.Y.S.2d 292, 296, 259 N.E.2d 727 (1970).

      . The hearing held by Justice Helfand in 1969 is recorded in 659 pages of transcript.

      . Unreported Order of Justice Helfand, New York State Supreme Court, Kings County, dated December 30, 1969.

      . In its Miranda decision the Supreme Court cited Whitmore’s “confession” as an egregious example of the false confessions which can result from custodial interrogations. Miranda v. Arizona, 384 U.S. 436, 455 n. 24, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Whitmore was tried for the Edmonds murder in April, 1966, after his conviction in the first Borrero trial liad been set aside. The trial resulted in a hung jury, and on April 30, 1966, a mistrial was declared. Two months later the Edmonels indictment was dismissed because it was believed that the Miranda decision (June 13, 1966) required the retrial of the appellant without the use of certain critical admissions which had been used in the first trial.

      . The Wylie-Hoffert murders, which occurred in Manhattan in August, 1963, attracted nationwide attention. The charges against Whitmore for these murders were dismissed before his second trial in the Borrero case, which occurred in May, 1966. One Richard Robles was subsequently convicted of these murders. People v. Robles, 27 N.Y.2d 155, 314 N.Y.S.2d 793, 263 N.E.2d 304 (1970).

      . In 1969 the Supreme Court ruled that Miranda did not apply to “post-Miranda retrials of cases originally tried prior to tliat decision.” Jenkins v. Delaware, 395 U.S. 213, 213-214, 89 S.Ct. 1677, 23 L.Ed.2d 253 (1969) (footnotes omitted). See also, People v. Sayers, 22 N.Y.2d 571, 293 N.Y.S.2d 769, 240 N.E.2d 540 (1968), cert. denied, 395 U.S. 970, 89 S.Ct. 2107, 23 L.Ed.2d 759 (1969).

      . These descriptions are contained in Patrolman Isola’s notebook, in his official report of the incident, in the police blotter, and in tlie record of tlie alarm given to police radio cars. They generally agree that the perpetrator weighed about 165 pounds, was from five feet seven to five feet nine inches tall, was between twenty and twenty-seven years old, and was not wearing a hat. Mrs. Borrero denies that she was the source of these descriptions. She now claims that she had originally described the attacker as under five feet seven inches, about 155 pounds with a light coriiplexion and heavily pockmarked face, and wearing a hat. Whitmore had a light complexion and his face is pockmarked. See the description by Celeste Viruet in Detective Aidala’s notebook infra.

      . See discussion of the origin of this description infra.

      . The definite statement that the attacker was not wearing a hat agrees with the early descriptions of the perpetrator. See n. 9 supra. It directly contradicts Mrs. Borrero’s testimony. This description is the only one which does not describe the attacker’s coat as three-quarter length.

      . See n. 6 supra.

      . The case was ordered reargued after the first argument in the New York State Court of Appeals. The second argument focused on “whether defendant’s guilt was established beyond a reasonable doubt as a matter of law.” 28 N.Y.2d 587, 319 N.Y.S.2d 620, 268 N.E.2d 331 (1971).

      . A strong dissent was filed by Judge Breitel who believed that the proof was insufficient, as a matter of law, to establish guilt beyond a reasonable doubt. 28 N.Y.2d 826, 322 N.Y.S.2d 65, 270 N.E.2d 893 (1971).

       Mr. Beldock: That’s the description you got from the sister-in-law who saw this happen from the window; right?
      Det. Aidala: Oh, that’s possible. It might be from the sister-in-law. You could be right there, Counsellor.
      (Transcript of Hearing at 508-09.)


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Larry DICKINSON and Gibbs Adams, Defendants-Appellants.
    No. 72-3275.
    United States Court of Appeals, Fifth Circuit.
    April 9, 1973.

      Frank M. Coates, Jr., Baton Rouge, La., for defendants-appellants.
    E. Barrett Prettyman, Jr., Robert R. Bruce, Lawrence R. Velvel, Columbus School of Law, Washington, D. C., amicus curiae, for The Reporters Committee for Freedom of the Press.
    Gerald J. Gallinghouse, U. S. Atty., New Orleans, La., Douglas M. Gonzales, U. S. Atty. (M. D.), Baton Rouge, La., Mary Williams Cazalas, James D. Carriere, Asst. U. S. Attys., New Orleans, La., for plaintiff-appellee.
    Before JONES, GODBOLD and INGRAHAM, Circuit Judges.
   PER CURIAM:

A prosecution for murder was pending in a state court of Louisiana. An action was brought in the United States District Court for the Middle District of Louisiana to enjoin the prosecution in the state court. A hearing was held in the Federal court. Statements were made with respect to matters which would probably be the subject of testimony in the state court in the event the state court proceeding was not enjoined. The district court with the intent of preventing prejudice to the holding of a fair trial in the state court ordered that no publicity be given by press or otherwise with respect to the substantive statements. The appellants, newspaper reporters, violated the court’s order by writing reports outlining the testimony. They were brought before the district court, a hearing was held, and they were convicted of contempt and fines were imposed. An appeal to this Court was taken and the decision and judgment of this Court was made. The judgment of the district court was vacated and the cause was remanded for further proceedings as directed by this Court’s opinion. United States v. Dickinson, 5th Cir. 1972, 465 F.2d 496. On remand the district court made further findings and adhered to and confirmed its finding of willful contempt and adhered to the penalties previously imposed, 349 F.Supp. 227. The newspaper reporters have again taken their appeal to this Court.

We do not have on this appeal any issue of free press-fair trial. The determination which we make is that the prior opinion and decision of this Court established the law of the case from which we do not depart. Orderly judicial procedure requires that there be an adherence to a decision upon an earlier appeal of the same case. William G. Roe & Co. v. Armour & Co., 5th Cir. 1969, 414 F.2d 862; White v. Murtha, 5th Cir. 1967, 377 F.2d 428; Rachal v. Allen, 5th Cir. 1967, 376 F.2d 999; Lumbermen’s Mutual Casualty Co. v. Wright, 5th Cir. 1963, 322 F.2d 759. Although the Court has power to adopt a position different from that of the earlier appeal, we are not persuaded that such action is required in this cause. It is to be noted that the appellants did not seek a rehearing or make application for certiorari of the decision on the prior appeal.

The judgment of the district court is affirmed.


author: BRIGHT, Circuit Judge.

text:
    Frances FISHER, Appellee, v. James SNYDER et al., Appellants.
    No. 72-1599.
    United States Court of Appeals, Eighth Circuit.
    Submitted Feb. 15, 1973.
    Decided April 16, 1973.
    Charles W. Baskins, North Platte, Neb., and William P. Mueller, Ogallala, Neb., for appellants.
    Theodore L. Kessner, Lincoln, Neb., for appellee.
    Before LAY and BRIGHT, Circuit Judges, and NICHOL, District Judge.

       Sitting by designation.

   BRIGHT, Circuit Judge.

Appellants, as members of the school board of a rural Nebraska county district, dismissed appellee, Frances Fisher, as a high school teacher at the close of the 1972 school year, giving as a reason her “unbecoming conduct” outside the classroom. Mrs. Fisher thereafter brought an action against the members of the board under 42 U.S.C. § 1983, alleging that constitutionally impermissible reasons underlay their dismissal action. The district court ordered her reinstatement, and the board members bring this appeal. We affirm the district court.

The relevant facts are not in dispute. Mrs. Fisher, a middle-aged divorcee, was employed at the high school in Tryon, Nebraska, from 1970 to 1972. Her married son, then 26 years old, lived and taught in the neighboring town of Stapleton, Nebraska. Mrs. Fisher lived alone in a one-bedroom apartment. On several occasions, young ladies, married couples, and young men, who were friends of her son, visited Tryon. Because hotel and motel accommodations were generally sparse and unavailable in Tryon, Mrs. Fisher followed the advice of the secretary of the school board and allowed these guests to stay overnight at her apartment. Cliff Rowan, age 26, was a particularly frequent visitor. Rowan’s parents lived in California. He, therefore, regularly visited Mrs. Fisher during his school vacations and at other times, and she referred to him as her second son. In the spring of 1972, Rowan spent about a week in Tyron visiting school classes as a means of fulfilling certain of his college requirements. Mrs. Fisher made arrangements with school administrators for this visitation and it was reported in the local newspaper.

Following Rowan’s visit, the school board notified Mrs. Fisher that her contract would not be renewed at the end of the 1972 school year. At her request, pursuant to provisions of Nebraska law, the board afforded Mrs. Fisher a hearing relating to the notice of dismissal. Following this hearing, the board made findings justifying the dismissal which, as here pertinent, read:

(a) Frances A. Fish [sic] is a single woman.
(b) That on several occasions during the current school year men, not related to Frances A. Fisher, stayed in her apartment in Tryon, McPherson County, Nebraska, on several occasions ranging from one night to a period of at least one week, this constitutes conduct unbecoming a teacher.

The district court held the dismissal impermissible as arbitrary and capricious in violation of Mrs. Fisher’s right to substantive due process under the Fourteenth Amendment. As a further basis for its decision, the court determined that the board, in dismissing Mrs. Fisher, invaded her constitutionally protected rights of association and privacy. Affirming on the substantive due process ground, we do not reach the issues of association or privacy.

Nebraska by statute requires that notice and a hearing be given nontenured teachers who are to be terminated. Neb.Rev.Stat. § 79-1254. The appellees concede that the school board, in dismissing Fisher, complied with the statute, and its judgment, therefore, must be afforded judicial deference “so long as the board does not act unreasonably, arbitrarily, capriciously, or unlawfully.” Smith v. Board of Educ., 365 F. 2d 770, 782 (8th Cir. 1966); see Bradford v. School Dist. No. 20, 364 F.2d 185, 189 (4th Cir. 1966); Johnson v. Branch, 364 F.2d 177, 180-181 (4th Cir. 1966), cert. denied, 385 U.S. 1003, 87 S. Ct. 706, 17 L.Ed.2d 542 (1967); Brooks v. School Dist., 267 F.2d 733, 739 (8th Cir.), cert. denied, 361 U.S. 894, 80 S.Ct. 196, 4 L.Ed.2d 151 (1959).

However, a high school teacher may successfully argue that his dismissal was arbitrary and capricious if he can prove:

* * * that each of the stated reasons [underlying his dismissal] is trivial, or is unrelated to the educational process or to working relationships within the educational institution, or is wholly unsupported by a basis in fact. [McEnteggart v. Cataldo, 451 F.2d 1109, 1111 (1st Cir. 1971), cert. denied, 408 U.S. 943, 92 S.Ct. 2878, 33 L.Ed.2d 767 (1972).]

Drown v. Portsmouth School District, 451 F.2d 1106, 1108 (1st Cir. 1971); see Cook County College Teachers Union, Local 1600, AFT v. Byrd, 456 F.2d 882, 889 (7th Cir.), cert. denied, 409 U.S. 848, 93 S.Ct. 56, 34 L.Ed.2d 90 (1972); Freeman v. Gould Special School Dist., 405 F.2d 1153, 1167 n.9 (Lay, J., dissenting); Johnson, supra, 364 F.2d at 181-182; cf. Schware v. Board of Bar Examiners, 353 U.S. 232, 239, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957).

Thus, while a school board may legitimately inquire into the character and integrity of its teachers, see Beilan v. Board of Public Educ., 357 U.S. 399, 405, 78 S.Ct. 1317, 2 L.Ed.2d 1414 (1958); Adler v. Board of Educ., 342 U.S. 485, 493, 72 S.Ct. 380, 96 L.Ed. 517 (1952); Jenkyns v. Board of Educ., 111 U.S.App.D.C. 64, 294 F.2d 260, 261 (1961); James v. West Virginia Bd. of Regents, 322 F.Supp. 217, 228-230 (S.D.W.Va.1971), it must be certain that it does not arbitrarily or capriciously dismiss a teacher based on unsupported conclusions drawn from such inquiries.

In seeking to justify the dismissal in this case, the school board argues that the evidence developed at the board hearing supported its finding Mrs. Fisher guilty of conduct unbecoming a teacher. In the board’s view, “the inferences from her social behavior are that there was a strong potential of sexual misconduct.” The board does not actually accuse Mrs. Fisher of immoral conduct but “of social misbehavior that is not conducive to the maintenance of the integrity of the public school system.” [Appellants’ Brief at 12,13.]

But here, there is no proof of improper conduct. The only whit of evidence offered as support for the board’s conclusion that Mrs. Fisher was guilty of unbecoming conduct was the fact that she had overnight guests. But the presence of these guests in her home provides no inkling beyond subtle implication and innuendo which would impugn Mrs. Fisher’s morality. Idle speculation certainly does not provide a basis in fact for the board’s conclusory inference that “there was strong potential of sexual misconduct” and that, therefore, Mrs. Fisher’s activity was “social misbehavior that is not conducive to the maintenance of the integrity of the public school system.” We agree with the district court that “At most, the evidence may be said to raise a question of Mrs. Fisher’s good judgment in her personal affairs, when measured against an undefined standard which someone could suppose exists in a small town in Nebraska.” Fisher, supra, 346 F.Supp. at 398.

The record, furthermore, contains considerable evidence tending to negate any inference of improper or immoral conduct by Mrs. Fisher. She did not attempt to conceal the presence of her house guests but instead openly inquired of the school board’s secretary about motel accommodations in Tryon for these guests. She was advised to keep them in her home because other accommodations were so limited. She formally introduced one of her guests at school so that he might observe classes to satisfy college requirements. The local Avon lady, wife of the pastor of a church in Tryon, called at Mrs. Fisher’s residence on a Saturday morning during the 1970-1971 school year. Although Mrs. Fisher was apparently awakened by the visit, she invited the pastor’s wife into her apartment. A young man who had been an overnight guest was also present in the apartment, and the three drank coffee together.

Two citizens of Tryon called as witnesses for the school board were subpoenaed. Their testimony cast no aspersions upon Mrs. Fisher’s character or her fitness as a teacher. No evidence of a community reaction against Mrs. Fisher has been presented, compare with James, supra, 322 F.Supp. at 229 (student teacher denied student teaching assignment in circumstances of strong community reaction to published accounts of his radical activities), nor has she been shown incapable of maintaining discipline in her classes because of any inferences of impropriety drawn by her students or their parents.

This evidence, in the context of our review of the entire record, convinces us of the correctness of the district court’s determination. The openness of the association, and the age differential between Mrs. Fisher and her guests, would seem to belie any inference of impropriety. The school board’s inference of misconduct was arbitrary and capricious and therefore constituted an impermissible reason for terminating her employment, since the inference lacked any valid basis in fact.

Accordingly, we affirm the judgment of the district court.

      . Fisher v. Snyder, 346 F.Supp. 396 (D.Neb.1972).

      . Mrs. Fisher’s age is not disclosed by the record. The brief filed by amici curiae states that she is 55.

      . Tryon has a population of less than 100.

      . The statute provides :
      Any contract of employment between an administrator or a teacher who holds a certificate which is valid for a term of more than one year * * * shall be deemed renewed and shall remain in full force and effect until a majority of the members of the board vote on or before May 15 to amend or to terminate the contract at the close of the contract period; Provided, that the secretary of the board shall, not later than April 15, notify each administrator or teacher in writing of any conditions of unsatisfactory performance or other conditions because of a reduction in staff members or change of leave of absence policies of the board of education which the board considers may be cause to either terminate or amend the contract for the ensuing school year. Any teacher or administrator so notified shall have the right to file within five clays of receipt of such notice a written request with the board of education for a hearing before the board. Upon receipt of such request the board shall order the hearing to be held within ten days, and shall give written notice of the time and place of the hearing to the teacher or administrator. At the hearing evidence shall be presented in support of the reasons given for considering termination or amendment of the contract, and the teacher or administrator shall be permitted to produce evidence relating thereto.

      . Russell Kemp, a school board member, stated at the April 19th board hearing that he had heard conversation from “different places here in town” that men frequented Fisher’s apartment. “Just about any place you wanted to ask, as far as that goes.”

      . The superintendent of schools testified that in observing Mrs. Fisher’s classes, he had “always found them in good order.”


author: PELL, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Charles ALDEN, a/k/a Charles Alden Boyd, Defendant-Appellant.
    No. 71-1717.
    United States Court of Appeals, Seventh Circuit.
    Argued Nov. 3, 1972.
    Decided March 30, 1973.

      Michael P. Toomin, Chicago, Ill., for defendant-appellant.
    James R. Thompson, U. S. Atty., Richard M. Williams, Asst. U. S. Attys., Chicago, Ill., for plaintiff-appellee.
    Before SWYGERT, Chief Judge, HASTINGS, Senior Circuit Judge, and PELL, Circuit Judge.
   PELL, Circuit Judge.

Alden appeals from his conviction on all three counts of an indictment founded on 18 U.S.C. § 2113(a) and (d). There was no dispute about the factual basis of the indictment. On June 5, 1970, Alden, then in his late sixties, handed a teller in the South Chicago Savings Bank a note demanding money and referring to a back-up man elsewhere in the bank. He departed with $9500.00 in a paper bag. On November 6, 1970, at the same bank, Alden presented a similar note to a different teller located near the scene of the first incident. He departed without any money. On November 12, 1970, he again appeared at the same bank with a similar note which was presented to a third teller also in the same general area of the bank. He departed hastily without his note being honored. He was apprehended outside the bank. During the course thereof, using a toy pistol, Alden squirted a window washing fluid containing ammonia into the face of a bank employee. The only apparent attempt Alden made to disguise his appearance at any time was the wearing of a gauze patch over one lens of his glasses during the third incident.

These basic facts were not controverted by Alden. His attempted defense, which was made clear in both opening statement and closing argument of his counsel, was that he lacked the requisite mental intent. The present appeal relates to the intervening period of time between these two oral articulations of the defense, as to which Alden contends that his continuing efforts to substantiate his defense were thwarted by an unfair trial. We agree and reverse.

By way of general support of a number of the challenged rulings precluding testimony in response to defense questions to witnesses, the Government attaches talismanic significance to the lack of offers to prove: make an offer of proof precludes the reviewing court from passing upon the trial court’s exclusion of evidence.” It is true that reference has been made in the cases to this lack. The emphasis appears to be that the reviewing court without the benefit of the offer was unable to judge whether the exclusion was prejudicially erroneous. See, e. g., Trust Co. of Chicago v. Erie R. Co., 165 F.2d 806, 810 (7th Cir. 1948), cert. denied, 334 U.S. 845, 68 S.Ct. 1513, 92 L. Ed. 1769. The other side of this particular coin, however, is that “a formal offer of proof is not necessary where the record shows, either from the form of the question asked or otherwise, what the substance of the proposed evidence is.” Iva Ikuko Toguri D’Aquino v. United States, 192 F.2d 338, 374 (9th Cir. 1951), cert. denied, 343 U.S. 935, 72 S.Ct. 772, 96 L.Ed. 1343 (1952). Trial counsel certainly would be well advised not to take the calculated risk of being rescued by this obviousness standard; however, in the present case we are compelled to the conclusion that in numerous instances there could not have been other than an awareness of that which would have been forthcoming from the witnesses if they had been permitted to answer. So long as substantial rights are affected, Rule 52(a), Fed.R.Crim.P., if “a question is proper on its face and indicates an answer favorable to the appellant, no offer of proof is necessary.” Harris v. Smith, 372 F.2d 806, 815 (8th Cir. 1967). Of course, there should be a showing of relevancy and materiality. Here the expected answers clearly could have had an impact on “substantial rights” since they pertained to the essence of what was admittedly Alden’s only defense. We also note that frequently the objections to questions were nonexplicit and counsel’s attempts to discover the basis of the ruling or to argue law were summarily cut off by the district court. “Failure to

Turning to the specifics of the defense effort, we first are concerned with the proposed testimony of two psychiatrists brought to the stand by Alden. Dr. David A. Rothstein had examined the defendant on January 11, 1971. Upon learning of this, the Government moved for a psychiatric examination which was ordered and was thereafter conducted by Dr. Richard Marohn on January 18 and 23, 1971. Copies of their respective findings were tendered both to the prosecution and to the defense.

Both psychiatrists were called as witnesses by Alden but for all practical purposes they might as well have stayed at their offices. The opportunity that Alden had of demonstrating whether or not there was verity to his defense of mental incompetency is illustrated more graphically by extracts from the record than it would be by our characterizations thereof.

Thus, the following is set forth from the transcript of Dr. Rothstein’s appearance on the witness stand:

BY MR. TOOMIN:
Q Doctor, based on the examination that you made on the date in question, what, if any, diagnosis were you able to make ?
A My diagnosis—
MR. WILLIAMS: Objection at this time for the record, your Honor, for failure to see any relevancy to the dates of the offenses.
THE COURT: I sustain the objection.
MR. TOOMIN: Your Honor, do I understand that the objection—
THE COURT: I am not here to answer questions. You asked the question and if the United States Attorney wants to object, he may. It is my responsibility to rule on the objections.
BY MR. TOOMIN:
Q Doctor, based on the examination that you made on January 11, 1971, were you able to arrive at any diagnosis, if any, as to the defendant’s condition on June 5, 1970?
MR. WILLIAMS: Objection at this time, your Honor.
THE COURT: I sustain the objection.
BY MR. TOOMIN:
Q Doctor, as a result of your examination of the defendant on January 11, 1971, were you able to reach a diagnosis based on a reasonable degree of medical certainty as to the defendant’s mental condition on June 5, 1970, on which date he is accused of robbing the South Chicago Bank?
MR. WILLIAMS: Objection.
THE COURT: I sustain the objection.
* * * * * -X-
BY MR. TOOMIN:
Q Doctor, did you make any clinical observations of the defendant during the course of the examination?
MR. WILLIAMS: Objection, your Honor.
THE COURT: I sustain the objection.
-» * -X- * -X- -X-
BY MR. TOOMIN:
Q Doctor, what were the results, if any, of your examination on January 11, 1971 ?
MR. WILLIAMS: Objection as to relevancy.
THE COURT: I sustain the objection.
■ * -X- * -X- -X- -X-
BY MR. TOOMIN:
Q Dr. Rothstein, recalling your attention to the date of your examination on January 11, 1970, [sic] would you relate to the ladies and gentlemen of the jury what, if any, physical observations you were able to make of the defendant ?
MR. WILLIAMS: Objection, your Honor.
THE COURT: I will sustain the objection to that question.
BY MR. TOOMIN:
Q Did you have occasion on that date to see the defendant ?
A Yes, I did.
Q What, if anything, do you recall at that time that you saw of the defendant ?
MR. WILLIAMS: Objection, your Honor.
THE COURT: I sustain the objection.
BY MR. TOOMIN:
Q Can you describe the defendant on that date, sir ?
MR. WILLIAMS: Objection.
THE COURT: I sustain the objection.

Apparently out of a sense of utter' frustration, counsel discontinued his efforts at this point, and the Government lacking any evidence to counter did not cross-examine.

Dr. Marohn’s appearance on the stand relating to his examination a full week more remote from the time of the crimes than that of Dr. Rothstein was accorded substantially similar treatment.

Insofar as we can gather from- the record, the Government’s objection was based and sustained on the ground of relevancy, i. e., that the examinations were too remote from the date of the offenses, even though the incident on which count three was based occurred only two months before Dr. Rothstein’s examination and the most remote of the three incidents happened some seven months earlier. While there was no offer of proof made, it is fair to say that the district court evinced no interest in what the content of the answers might be. Compliance with the technical rules of evidence does not necessitate exercises in futility.

In Wright v. United States, 102 U.S. App.D.C. 36, 250 F.2d 4 (1957) (en banc), the Government argued remoteness as a reason for exclusion. The court there brushed the contention aside with a footnote, 250 F.2d at 9, fn. 2:

“Moreover, whether, despite time lapse between the offense and the examination, a psychiatric opinion can be formed as to the accused’s mental condition on the crucial date is a medical question within the competence of the qualified expert witness. The expert’s qualifications being conceded, the court should be reluctant to exclude from evidence any relevant opinion which the expert feels able to give on the basis of observed or hypothetical facts. Of course, the fact basis of the opinion is a circumstance to be considered by the trier of the facts in determining the weight to be given to the opinion.”

In United States v. Davis, 411 F.2d 570 (5th Cir. 1969), it was held that the trial court did not err in admitting testimony by a doctor as to his analysis of the defendant’s mental state based on observation commencing six months after the offense. See also United States v. Westerhausen, 283 F.2d 844 (7th Cir. 1960).

It is our holding that the district court clearly abused its discretion in not permitting the doctors to testify. We, in so holding, adopt the rule set out in II Wigmore on Evidence § 233, at 25 (3d ed. 1940), to the effect that since conditions of mental disease are more or less continuous, “ [i] t is therefore proper, in order to ascertain the fact of its existence at a certain time, to consider its existence at a prior or subsequent time.” In holding that the evidence was improperly excluded, we reject the Government’s attempt to distinguish the cases cited above on the grounds that in the present case there was no evidence of prior psychosis nor was there a claim of incompetency by the defendant. Neither of these factors impinge on the thrust of the cases on which we have relied.

While the cutting off at the initial stage of the testimony of the professional expert witnesses is sufficient unto itself to dictate reversal, we do note that this phase of the case was merely one manifestation of what would seem to be a belief on the part of the district court that the defense was without merit. While the other errors on which we base this observation may not be repeated in the event the case is retried, they will be briefly adverted to as we have not lightly reached the conclusion noted above.

Thus, the Government was successful in having its objection sustained to a detailed hypothetical question to Dr. Roth-stein on the basis that the question did not include all of the facts in evidence.

The Government in support of its position relies on eases such as Harris v. Smith, supra, 372 F.2d at 812. It is no doubt true, as indicated in that case, that where a hypothetical question omits facts which so qualify the facts included that an answer would be misleading, the court should sustain an objection. We do not find the omitted facts as specified in the Government’s objection to be of the character to justify the application of the Harris rule. Thus, it was objected that the question did not reflect certain matters that the defendant had recalled specifically in his testimony in the case. These facts were all before the jury and could without difficulty have been the subject of cross-examination of the psychiatrist to ascertain whether they would cause him to change his opinion. The witness was a professional and if the facts were insufficient for him to express an opinion he could have so stated. If, however, he did express an opinion in response to the question and the Government thought the facts were insufficient or that he would express a different opinion if other established facts had been in the question, it, of course, would have been free to utilize these facts in cross-examining him. The Government in essence was insisting upon putting into the question all evidentiary facts having any relationship to the issue before the court. Harris, supra, 372 F.2d at 812, expressly recognized that this is not necessary.

We think the better view is that if the question does not omit facts of such significance as to cause the answer to be misleading and if it includes enough that the expert can give an opinion, it is not necessary that all material facts be included. The safeguards lie in cross-examination. II Wigmore, supra, § 682, at 807, and 1970 Pocket Supplement at 309. McCormick on Evidence § 14, at 34 (2d ed. 1972). We also note that the Advisory Committee’s Note on Rule 705 of the proposed Rules of Evidence for United States Courts and Magistrates, 56 F.R.D. 183, 285 after referring to the extensive criticism of the hypothetical question, indicates that the expert need not on direct examination disclose the underlying facts or data on which his opinion is based unless the judge requires otherwise.

After the objection was sustained and counsel had been told by the court, “This is your last chance,” an effort was made, at rephrasing the question. The effort covers ten pages of the transcript. Then,

“MR. WILLIAMS: Objection.
“THE COURT: I sustain the objection.”
Following this nonilluminating colloquy, the court recessed over the noon hour. At the afternoon session, the following occurred:
MR. TOOMIN: Yes, if the Court please.
There was an objection prior to the recess for lunch and the Court sustained the objection. At this time I would again ask the grounds of the objection of the Government.
THE COURT: You may state the grounds.
MR. WILLIAMS: The grounds are the form of the question, the fact that the witness is asked to assume facts not in evidence in answer to the question.
THE COURT: I would say that is a fair statement and an accurate one of the objection, and a valid objection, or they are valid objections.
MR. TOOMIN: Your Honor, I would further ask for more specificity as to the facts which were stated in the hypothetical which are allegedly not in evidence.
THE COURT: You keep referring to things as facts. Facts are not found, sir, to be facts until the tryers of the facts find them to be facts.
MR. TOOMIN: I am aware of that, your Honor. I am merely saying that as to the assumed facts in the hypothetical—
THE COURT: You keep referring to facts. If I am trying the facts, if I am the tryer of the facts in a non-jury case, they are not facts until the testimony is in and then relying on the evidence, oral or documentary, if any, they become facts.
You know the Federal Rule provides for the submission of proposed findings of facts and conclusions of law. The jurors are the finders of the facts and have the responsibility for finding the facts.
The responsibility for finding the facts is vested in the jury. They are not facts, evidence is not considered facts, until it is demonstrated by the evidence. The mere fact that a witness says something doesn’t make it a fact.
Bring in the jury, Mr. Marshal.

The trial then resumed and the effort at putting a hypothetical question was abandoned, the “last chance” having not made the grade. On appeal, the Government favors this court, as it did not the court or defendant below, with what it, now at least, found objectionable in the question, being that it included as a factor “having in mind your examination [of the defendant] as you have testified.” Since the doctor was not allowed to testify to very much the factor does not seem of great significance. Also by its terms the question seems to limit the fact to that to which the doctor had testified, which, of course, was a fact in evidence. Even if this had been construed to refer to all that the doctor had learned in his examination, most of which, as we have indicated, were not facts in evidence, it strikes us that a fair trial could have been accomplished by a simple specification of the erring portion and by directing the doctor to answer the question with that particular fact eliminated from his consideration. While a district court judge is under no duty to conduct a refresher course in the rules of evidence for counsel, he presumably is an interested participant in the quest for truth. We would not quickly fault a trial judge for not permitting an endless succession of long, improperly put questions, but here, if this was all the Government had in mind, and it is all that has been related to us on this appeal, fairness would seem to have indicated a quick excision and permitting the question to be answered. We, of course, do not know what included premising facts the court thought were not in evidence.

Finally, Alden contends that there was reversible error in the court’s refusal to allow lay witnesses to give an opinion as to his sanity at a time contemporaneous with the offenses where such witnesses had known defendant over a period of many years. The two lay witnesses were a Reverend Vernon and his wife. Vernon was a minister of a Chicago church and a public school teacher. The Government on this appeal counters Alden’s contentions by averring there was no error because in the discretion of the trial court the witnesses did not have a proper foundation or sufficient opportunities to observe Alden. It perhaps is arguably correct as to whether a foundation was actually laid when we note in the record that objections, without statement of reasons, were successively sustained to questions to Reverend Vernon as to whether in connection with his church duties he had had occasion to counsel Alden, whether he had had occasion to observe him in 1970, and whether he had had occasion to see him during the month of November 1970.

There are two phases of the present matter. First, there is the question of lay witnesses testifying as to their observations of the person in question without the expression of an opinion as to mental capacity. Here the trial court should be liberal in admission, as any acts, conduct, declarations, spoken words, appearance, and manner of speech on the part of the person involved would be relevant to the issue. Even brief observation would not exclude the evidence but merely go to its weight, Mason v. United States, 402 F. 2d 732, 738 (8th Cir. 1968), cert. denied, 394 U.S. 950, 89 S.Ct. 1288, 22 L.Ed.2d 484 (1969).

The second phase of the matter involves the expression of an opinion by the lay witness. Here we are of the opinion, with which the Government apparently agrees, that the opinion can only be expressed where the witness has been qualified by sufficient association with an opportunity to observe the subject, Mason, supra, 402 F.2d at 739. The basic fault in the present case is that Alden was not permitted through the doorway of establishing the foundation.

Even if he had been permitted to do so, and we do note that it was in evidence that Reverend Vernon had been given a power of attorney by Alden and had known him as a friend for a great many years and had known him well in church functions, it is apparent from the record that the opportunity for his expressing an opinion would not have been accorded. We refer as illustrative of the basis of our belief in this respect to one final extract from the transcript:

BY MR. TOOMIN:
Q Reverend Vernon, based upon your associations with the defendant over the last twenty years, and based upon your experiences as both teacher and minister and your work in counseling people and associating with those who have been mentally ill in the past, do you have an opinion as to whether on June 5, 1970, the defendant Charles Alden Boyd was—
MR. WILLIAMS: I am going to object at this time to the leading form of the question, your Honor. I believe we are still on direct examination.
THE COURT: Yes, this is direct examination. You are asking a clearly leading question, a question that suggests the answer.
While I believe that I am required to let you complete your question, and you may complete it, I shall then sustain the objection to it. You may not ask questions, the answers to which are suggested by the form of the question.
BY MR. TOOMIN:
Q Do you have an opinion, sir, as to whether on November 5, 1970, the Defendant Charles Alden Boyd was capable of knowing right from wrong ?
MR. WILLIAMS: Objection.
THE COURT: I sustain the objection.

Without determining whether the question may or may not have been objectionable on other grounds, we note the objection was squarely placed and sustained on the ground that the question was leading. We cannot comprehend how a question which calls for a yes or no answer as to whether a person has an opinion is leading and suggestive of the answer.

The defendant did make an offer of proof as to the Vernon testimony. With confessedly some amazement, we observe that the Government objected to the offer of proof and that this objection was sustained.

In the state of the resulting record, it is scarcely surprising that the district court refused to give defendant’s proffered instruction on the issue of insanity although even here the evidence of the modus operandi of Alden might have suggested either that he was foolhardy or that he failed to have sufficient mental capacity to have been guilty of the crimes charged. We do not deem it necessary, however, either to analyze the proffered instruction or to determine whether there was a totality of factual evidence such as to justify the giving of an insanity instruction. We do not think it likely, if the case is retried, that the state of the record will present this particular problem.

For the reasons we have set forth herein the judgment of the district court is reversed and the case is remanded for a new trial.

Reversed and remanded.

HASTINGS, Senior Circuit Judge.

I concur only in the result reached by the majority in this case.


author: HEANEY, Circuit Judge.

text:
    NUCOR CORPORATION, Appellant, v. TENNESSEE FORGING STEEL SERVICE, INC., et al., Appellees.
    No. 72-1209.
    United States Court of Appeals, Eighth Circuit.
    Submitted Dec. 5, 1972.
    Decided March 14, 1973.
    Rehearing Denied April 17, 1973.

      Ernest S. DeLaney, Jr., Charlotte, N. C., for appellant.
    Hershel H. Friday, Little Rock, Ark., and John G. Rocovich, Jr., Roanoke, Va., for appellees.
    Before MATTHES, Chief Judge, and GIBSON and HEANEY, Circuit Judges.
   HEANEY, Circuit Judge.

Nucor Corporation appeals from the denial by the District Court of its request that the defendants be enjoined from using construction plans allegedly copied from plans drawn by Nucor. Nu-cor also sought the return of the original plans and other property taken by the defendants White and Munn without permission. The trial court, D.C., 339 F.Supp. 1305, denied the plaintiff’s requests for relief, with one exception. It required Munn to return certain property to the plaintiff. We affirm with respect to the latter issue, but otherwise reverse.

Nucor Corporation is a manufacturer of steel joists under the trademark Vulcraft for use in the building industry. It operates a number of joist manufacturing plants in the United States, including one in Grapeland, Texas. The construction plans for the Grapeland plant were drawn by Nucor employees at an estimated cost of $20,000. When the Grapeland plans were completed in the latter part of 1967, between fifteen and thirty sets of the plans were sent to White and he, in turn, sent them to contractors and subcontractors to obtain construction bids. White was employed by Nucor as Manager of Construction and supervised the construction of the plant. The plant was completed in 1968.

In the fall of 1971, while White was still an employee of Nucor, he was asked by Munn, then President of Tennessee Forging, to have plans drawn for construction of a steel joist plant in Hope, Arkansas; the plant to be operated by Tennessee Forging. White agreed to have the plans drawn, and Munn agreed to pay him for his services.

On November 22, 1971, White visited the Grapeland plant. He requested and was given a complete set of the Grape-land construction plans. He did not state why he wanted the plans, but was accompanied by Nucor’s President, with whom he discussed the planned construction of a Nucor plant in Indiana.

In early December, White approached Gene K. King at the latter’s engineering .firm, presented him with Nucor’s Grape-land plant plans and requested that King design a joist plant, using the Nucor plans as a guide. He further instructed him to make certain modifications to the plans. King completed the plans and delivered them to White on January 12, 1972. A few days prior to the delivery, King learned from White that the plans were being drawn for Tennessee Forging. On January 14, 1972, White resigned from Nucor and opened his own consulting firm. Shortly thereafter, White and Munn firmed up their earlier understanding. They agreed that White would receive $2,700 for costs incurred by him in having the plans prepared, and that he would be retained as a consultant to Tennessee Forging at an annual fee of $25,000. Construction commenced in mid-January, 1972.

Nucor initiated this action against the defendants on-February 21, 1972. It alleged that its common law copyright in the Grapeland construction plans had been infringed, and that White and Munn had breached their obligation as employees of Nucor not to disclose their employer’s trade secrets or other confidential information to competitors. Nu-cor requested injunctive and such other relief as might be appropriate.

The trial court held that even if Nu-cor had a common law copyright in the Grapeland plans, it lost this copyright by general publication. It also held there had been no infringement of Nu-cor’s copyright because there were substantial differences between the Grape-land and Hope plans, and that there was no breach of a trust by White. It refused to enjoin construction of the building.

On this appeal, Nucor contends that it had a common law copyright in its Grapeland plans, that it did not abandon this copyright or make a general publication of it, and that the defendant, White, infringed on this copyright. It also argues that White obtained the Grapeland construction plans because of his confidential relationship with Nucor, that he breached the obligation of trust he owed to Nucor, and that as a result, the defendant, Tennessee Forging, was unjustly enriched. Because the defendants have now completed the building, Nucor asks that we remand the matter to the District Court with instructions to that court to enjoin the defendants from further use of the plans, to require them to return the Grapeland plans to Nucor, and with further instructions to permit Nucor to amend its complaint to request damages from the defendants for the improper use of the plans and to proceed to trial on the issue of damages.

The matter was tried below on the theory that Arkansas law controls. We accept that approach, but note that there is little Arkansas law directly on point. We are, thus, faced with the difficult task of attempting to determine how the Arkansas Supreme Court would decide the matter if it were presented to that court. In this task, we give special weight to the determination of local law by the trial court but, nonetheless, conclude that it erred. We do so out of a firm conviction that the Arkansas Supreme Court, if faced with this matter, would conclude that the defendants’ conduct did not meet the high standards required of corporate officers and managers in Arkansas, and that the plaintiff was entitled to relief from the defendants’ inequitable conduct. We also believe that the Arkansas Supreme Court would be inclined to follow the view of the law expressed in the cases we cite.

The first question is whether Nucor had a common law copyright in the Grapeland plans. The plans consisted of approximately thirty sheets of detailed blueprints and shop drawings, which Nucor had designed in its engineering department in 1967 and which were followed in constructing the Grape-land plant. The trial court held in its opinion that:

“The ‘roll of plans’ for the Grapeland plant was the property of NUCOR and NUCOR had a common law right of copyright in it. * * * ”

This holding was correct. Architectural plans such as Nucor’s are protected by common law copyright. Nimmer, The Law of Copyright, § 26 (1967); Katz, Copyright Protection of Architectural Plans, Drawings, and Designs, 19 Law & Contemp.Prob. 224, 229 (1954). We reject the defendants’ argument that Nucor’s plans were so unoriginal that they were not entitled to protection. While the concept of a T-shaped building is not entitled to copyright protection, detailed plans and drawings of a specific building are.

The trial court, however, found that Nucor lost its common law copyright protection through general publication. It stated that the following activities, when considered in their totality, constituted such publication:

(1) Sending approximately thirty sets of plans to contractors and subcontractors because—

(a) the plans contained no notice that they were confidential or limited as to circulation,

(b) no deposits were required from the contractors or subcontractors, and

(c) there was no requisite that they be returned.

(2) Permitting any and all interested persons to see, visit and inspect the building in all stages of construction and the entire plant when in operation after construction was completed.

(3) Distributing ten thousand catalogs and forty thousand annual reports containing aerial photographs of the exterior of the Grapeland plant.

We reject the trial court’s holding.’

First, a distribution of plans to potential contractors and subcontractors for bidding purposes does not constitute general publication. See, Read v. Turner, 239 Cal.App.2d 504, 48 Cal.Rptr. 919, 40 A.L.R.3d 237 (1966); Ashworth v. Glover, 20 Utah 2d 85, 433 P.2d 315 (1967). This is true even though the plans are not marked confidential, are not required to be returned, and can be obtained without paying a deposit. Cf., Pressed Steel Car Co. v. Standard Steel Car Co., 210 Pa. 464, 60 A. 4 (1904).

Second, an owner does not lose his common law copyright by permitting interested persons to view and inspect a building during and after construction. The trial court bolstered its contrary conclusion with the observation that:

“->:- -x- * While competitors and members of the general public did not inspect specific building plans in connection with their touring of and observing the plants, the evidence reflects that there is nothing on the plans (and in particular nothing on the plaintiff’s plans for its Grapeland plant) which would not be readily apparent to any competitor or knowledgeable person touring or observing plaintiff’s plants.”

We do not believe that displaying a building during or after construction, or publishing photographs of it, can be said to be the equivalent of publishing the building plans. While the observation of the building in person or through photographs may provide the basis for designing a similar building through a trained observer’s initiative, it cannot provide the excuse for copying from plans without permission. See, De Silva Construction Corp. v. Herrald, 213 F.Supp. 184 (M.D.Fla.1962); Edgar H. Wood Associates, Inc. v. Skene, 347 Mass. 351, 197 N.E.2d 886 (1964); Smith v. Paul, 174 Cal.App.2d 744, 345 P.2d 546, 77 A.L.R.2d 1036 (1959). Cf., Tabor v. Hoffman, 118 N.Y. 30, 23 N.E. 12 (1889).

Third, the distribution of catalogs and annual reports — which included photographs of the exterior of the Grapeland plant — does not constitute a general publication of its plans. We believe that Shanahan v. Macco Construction Co., 224 Cal.App.2d 327, 36 Cal. Rptr. 584 (1964), relied on by the defendants, is inapposite. There, the plaintiff had distributed several thousand brochures to the public, in addition to newspaper and magazine advertisements, all of which contained detailed representations or reproductions of that plaintiff’s plans. Nucor merely included an exterior photograph of the plant in the cited publications. This did not amount to a general publication of its detailed plans.

Finally, the activities — when viewed in their totality — do not constitute a general publication.

The trial court’s alternative holding that even if there was no general publication, Nucor’s common law copyright was not infringed, is also in error. The court found that while the Hope and Grapeland plans were similar in some respects, they were substantially different in many other ways. It apparently believed that where there are substantial differences, infringement has not occurred. That view is in error.

“In order to constitute an infringement * * it is not necessary that the whole or even a large portion of the book [plans] shall have been copied. It is sufficient if a material and substantial part shall have been copied, even though it be but a small part of the whole. * * * ” (Citations omitted.)

Henry Holt & Co. v. Liggett & Myers Tobacco Co., 23 F.Supp. 302, 303 (E.D. Pa.1938). See also, Hedeman Products Corp. v. Tap-Rite Products Corp., 228 F.Supp. 630 (D.N.J.1964).

We have carefully reviewed the record and find that the court’s conclusion that “the similarities are not of such nature as to be exclusive or protected to Nucor” is erroneous. Uncontroverted evidence shows that material sections of the Hope plans were exact reproductions of sections of the Grapeland plans and that there are other similarities in design and details. While the defendants could have designed and constructed a joist plant without the aid of Nucor’s plan, the fact remains that the defendants’ designer, King, used the Grapeland plans in producing the Hope plans, and the many similarities between the two sets of plans were the product of King’s copying and not the. product of independent design. The essence of the infringement is that the defendants “appropriat[ed] * * * the fruits of another’s labor and skill in order to publish [construct] a rival work [plant] without expending the time and effort necessary to achieve the same result independently * * Hedeman Products Corp. v. Tap-Rite Products Corp., supra at 634.

The second question is whether White breached an implied obligation not to disclose Nucor’s plans to competitors. The trial court held no breach occurred because the plans were not trade secrets. However, we believe that the Arkansas Supreme Court suggested in Witmer v. Arkansas Dailies, 202 Ark. 470, 151 S.W.2d 971 (1941), that employees have a high duty not to disclose confidential information received by them as employees to competitors regardless of the fact that the information disclosed might not technically be considered a trade secret. See also, Raines v. Toney, 228 Ark. 1170, 313 S.W.2d 802 (1958). This view is consistent with that expressed in the Restatement (Second) of Agency, §§ 395 and 396 (1958). See also, Restatement of Torts, § 759 (1939). We think it is the correct view.

The record strongly supports the conclusion that the Grapeland plans were confidential and that White breached the implied duty of an employee not to disclose confidential information to a competitor. It is replete with uncontradicted testimony by Nucor’s officials that the Grapeland plans were considered by the firm to be confidential information. While this testimony may be self-serving, the trial court found that visitors and competitors were not allowed to view the Grapeland plans. Indeed, it is clear that the only outsiders who were allowed to see the plans were those contractors and subcontractors who received sets of the plans for the sole purpose of submitting bids on the construction of the Grapeland plant. That disclosure would not destroy the confidential character of the plans as they were submitted to the contractors for the limited purpose of bidding. See, Pressed Steel Car Co. v. Standard Steel Car Co., supra.

Furthermore, it is clear from the record that White had received copies of the plans solely by virtue of his position as a Nucor employee so that he might use them for the benefit of Nucor. He was never given permission to use these plans for the benefit of anyone but Nu-cor, and the record strongly suggests that such permission would not have been granted if he had sought it.

The seriousness of White’s breach of trust is not lessened by the fact that King may have had the skill to prepare plans for the Hope plant without utilizing the Grapeland plans. As is cogently stated in Tabor v. Hoffman, supra 118 N.Y. at 37, 23 N.E. at 13:

« * * * Even if resort to the patterns [plans] of the plaintiff was more of a convenience than a necessity, still, if there was a secret, it belonged to him, and the defendant had no right to obtain it by unfair means or to use it after it was thus obtained.”

See also, Franke v. Wiltschek, 209 F.2d 493 (2nd Cir. 1953); Smith v. Dravo Corp., 203 F.2d 369 (7th Cir. 1953); Kalinowski, Key Employees and Trade Secrets, 47 Va.L.Rev. 583 (1961).

We hold both that Nucor’s copyright was infringed and that White breached an implied duty not to disclose Nucor’s confidential information to a competitor. At the time Nucor served its complaint, only minimum construction had begun, and the proper disposition would have been to grant Nucor’s request for a permanent injunction. Dismissal of Nucor’s complaint was error. Now, the Hope plant is substantially completed, and to enjoin its construction would be futile. Yet as it is clear that Nucor has been wronged and that the defendants, White and Tennessee Forging, have benefited from this wrong, it is appropriate that Nucor be afforded the following relief :

(1) That the defendants be permanently enjoined from making further use of Nucor’s Grapeland plans, and that they be required to return the Grapeland plans to Nucor.

(2) That Nucor be permitted to amend its complaint to claim damages from the defendants for the fair value of the Grapeland plans, and that it be permitted to prove its damage in an appropriate proceeding.

Affirmed in part, reversed in part, and remanded to the District Court for disposition consistent with this opinion.

      . Mr. Munn was employed as Vice President of Nucor and General Manager of its joist plant in Florence, South Carolina, between September, 1964, and February, 1971. Munn allegedly took Nucor’s steel joist designs and production time study and cost data when lie left that company. The District Court ordered Munn to return any property of Nucor that was in his possession. There is no cross appeal as to the propriety of that order. Munn thus entered into this appeal only with respect to the part he played in arranging for Nucor’s plans to be made available to Tennessee Forging Steel Service, Inc.

      . After Munn left Nucor in February of 1971, he was employed by Congaree Iron and Steel Company until September 21, 1971. He joined Tennessee Forging Steel Service, Inc., on October 1, 1971. Munn’s testimony reveals that even while he was employed by Congaree, he had discussions with White and two South Carolina businessmen concerning the possible construction of a steel joist plant somewhere in Arkansas. The Hope, Arkansas, location was apparently decided on in October, and construction was planned to begin in mid-January, 1972.

      . These modifications included the length and width of the plant, the dimensions of the bay areas, column sizes, truss design, and crane rail design.

      . In Larry Luke, et al. v. American Family Mutual Insurance Company, 476 F.2d 1015 (8th Cir. 1972), petition for rehearing en banc granted, December 27, 1972, Judge Lay stated:
      “Although this court gives special weight to the determination of local law by a federal district judge, a court of appeals cannot be irrevocably bound by a district judge’s choice of one of two or more alternative rules to follow in a diversity case. To hold otherwise would be to abdicate our appellate responsibility;.” (Footnote omitted.)

      . See, e. g., Raines v. Toney, 228 Ark. 1170, 313 S.W.2d 802 (1958).

      . The Arkansas Supreme Court has indicated on a number of occasions that in equity matters, a court must be a court of conscience and seek to afford relief which will do substantial justice to all. See, e. g., Whitaker & Co. v. Sewer Improvement District No. 1, 229 Ark. 697, 318 S.W.2d 831 (1958).

      . The prevailing law respecting the effect of publication upon common law copyrights was stated in Edgar H. Wood Associates, Inc. v. Skene, 347 Mass. 351, 197 N.E.2d 886, 892 (1964):
      “ * * * Only a general publication terminates a common law copyright. It is ‘such a disclosure, communication, circulation, exhibition, or distribution of the subject of copyright, tendered or given to one or more members of the general public,, as implies an abandonment of the right of copyright or its dedication to the public.’ * * * A limited publication is ‘one which communicates a knowledge of its eon-tents under conditions expressly or impliedly precluding its dedication to the public.’ * * * Further, to be general a publication must be such ‘ ‘ . . . as to justify the belief that it took place with the intention of rendering . . . (the) work common property.’ ” ’ * * * While the test is properly one of intention, it is clear that the unexpressed, subjective intention of the creator cannot be allowed to govern * * * ; rather the implications of his outward actions to the reasonable outsider are controlling.” (Citations omitted.)

      . We are convinced that the better view of the law and that which Arkansas would follow was correctly stated by Katz, Copyright Protection of Architectural Plans, Drawings and Designs, 19 Law & Pontempt.Prob. 224, 236 (1954) :
      “ * * * An architectural plan is a technical writing. It is capable of being copied only by similar technical writings, that is, by other plans, etc. A structure is the result of plans not a copy of them. It follows that building a structure and opening it to the public gaze cannot be a publication of its plans.” (Emphasis included and footnotes omitted.)
      See also, Nimmer, Copyright Publication, 56 Colum.L.Rev. 185, 197 (1956), where the author suggests:
      “ * * * . [A] sine qua non of publication should be the acquisition by members of the public of a possessory interest in tangible copies of the work in question.” (Emphasis included.)

      . “§ 395. Using or Disclosing Confidential Information

      “Unless otherwise agreed, an agent is subject to a duty to the principal not to use or to communicate information confidentially given him by the principal or acquired by him during the course of or on account of his agency or in violation of his duties as agent, in competition with or to the injury of the principal, on his own account or on behalf of another, although such information does not relate to the transaction in which lie is then employed, unless the information is a matter of general knowledge.”
      “§ 396. Using Confidential Information after Termination of Agency

      “Unless otherwise agreed, after the termination of the agency, the agent:
      # sk :H * *
      “(b) has a duty to the principal not to use or to disclose to third persons, on his own account or on account of others, in competition with the principal or to his injury, trade secrets, written lists of names, or other similar confidential matters given to him only for the principal’s use or acquired by the agent in violation of duty.

      . This Court, in a prior diversity case interpreting Arkansas law, quoted with approval the following statement from an annotation in 165 A.L.R. 1453, 1454:
      “ ‘The law is well settled that one of the implied terms of a contract of employment is that the employee will hold sacred any trade secrets or other confidential information which he acquires in the course of his employment, and that therefore an employee who has left his employment is under an implied obligation not to use trade secrets or other confidential information which he has acquired in the course of his employment, for his own benefit or that of a rival, and to the detriment of his former employer.’ ” Tlapek v. Chevon Oil Company, 407 F.2d 1129, 1133 (8th Cir. 1969).

      . In addition to that evidence, this conclusion is supported by Plaintiff’s Exhibit 12, a letter of June 17, 1966, from Nucor’s attorney to some of its former employees, which states that Nucor even at that point in time considered its blueprints and similar property to be proprietary information which could not be used by those former employees without written permission of the company.

      . The City of Hope, Arkansas, was joined in this suit solely to insure that an injunction could be issued against the proper party. The plaintiff concedes that the City has not engaged in any wrongdoing. We, therefore, affirm the trial court’s dismissal of the complaint as to it.
      On the other hand, there is evidence in the record indicating that Munn was a knowing and active participant in the scheme to obtain Nucor’s plans for Tennessee Forging. Under such circumstances, it is inappropriate to sustain the trial court’s dismissal of the action with respect to Munn. His liability will have to be determined on remand.