author: ROSS, Circuit Judge. LAY, Circuit Judge

text:
    UNITED STATES of America, Appellee, v. Elmer CUMMINGS, Appellant.
    No. 74-1352.
    United States Court of Appeals, Eighth Circuit.
    Submitted Sept. 10, 1974.
    Decided Nov. 20, 1974.
    Rehearing Denied Dec. 18, 1974.

      Michael F. Pieplow, Davenport, Evans, Hurwitz & Smith, Sioux Falls, S. D., for appellant.
    Larry Von Wald, Asst. U. S. Atty., Sioux Falls, S. D., for appellee.
    Before LAY, ROSS and WEBSTER, Circuit Judges.
   ROSS, Circuit Judge.

After a trial to the court, Elmer Cummings was convicted of two counts of knowing interstate transportation of gambling devices in violation of 15 U.S. C. § 1172. He appeals, alleging that the trial court erred in not suppressing certain evidence which had been seized pursuant to a search warrant; in finding sufficient evidence to show a knowing violation; in granting a continuance to allow the government to put on certain rebuttal testimony and in not striking this testimony from the record. We affirm the conviction.

Cummings is a Sioux Falls, South Dakota, businessman who operates a concern which leases jukeboxes and various other coin-operated amusement machines. The facts adduced at the trial reveal that in the latter part of January, 1973, Cummings and one Ernest Sonsa, who operates a business similar to Cummings in Hot Springs, South Dakota, consummated a deal with one James Wakefield to purchase some sixty-odd slot machines which Wakefield had stored in a warehouse in Riverton, Wyoming. In preparation for transporting these machines, Cummings, Sonsa and Wakefield dismantled them, removing the handles and reels; Cummings and Sonsa rented two U-Haul trucks; Cummings and Wakefield loaded the first of the two trucks with dismantled slot machines ; and Cummings arranged for two brothers he knew in Sioux Falls, James and Marlyn Christensen, to fly to Riverton separately to drive the trucks when they were ready to move. The first of the trucks, from which the slot machines were seized, was driven by James Christensen from Riverton to Sioux Falls.

At the trial Cummings disputed that he had directed or arranged for Christensen to haul the slot machines across the state line. It was his contention that Sonsa was to meet Christensen at a truck stop near Casper, Wyoming, and direct him to Sonsa’s warehouse in Man-ville, Wyoming, where the slot machines were to be unloaded for storage. Sonsa was also to tell Christensen to proceed on to Hot Springs, South Dakota, to pick up two player pianos which Cummings was purchasing from Sonsa and from there drive on to Sioux Falls. In support of his claim that he had no “knowing” intent to ship the slot machines across state lines he pointed to evidence that he and Sonsa had originally attempted to rent the trucks to go to Douglas, Wyoming, but had agreed to rent them to Sioux Falls when the U-Haul agent in Riverton had told them they must have an out-of-state destination. He also relies on evidence that James Christensen was told to stop and wait for a contact in Casper and that Sonsa did have a warehouse in Manville in which the parts taken off the machines were ultimately stored. Additionally, he points out that he willingly approached law enforcement officers after he learned that the machines had been taken to Sioux Falls, that he immediately disclaimed any intent to transport them in interstate commerce and that he has a reputation for truth and veracity in his community.

The government noted various inconsistencies in Cummings’ version. Principally, it was stressed that Christensen had never been told what was in the truck, had no way to get into the padlocked cargo area to unload it, had not been told the importance of remaining in Wyoming until the truck was unloaded and had been told to park the truck in a bank parking lot rather than near Cummings’ office when he arrived in Sioux Falls. Also, James, the driver of the first truck, was never told by Cummings to stop in Hot Springs on his way to Sioux Falls.

The trial judge, acting as the trier of fact, drew the inference that all this secrecy along with other inconsistencies in Cummings’ version demonstrated the requisite intent and found him guilty of the charge.

I.

Cummings’ principal argument on appeal is that the evidence derived from the search of the first truck which contained the dismantled slot machines should have been suppressed because the affidavit upon which the magistrate issued the search warrant was insufficient to establish probable cause as a matter of law. The trial judge refused to suppress this evidence after a motion had been made and a suppression hearing held.

It appears that a municipal judge in Sioux Falls issued the search warrant based solely on the allegations contained in the affidavit. Basically, this affidavit related that a reliable, unnamed informant had contacted one of the officers of the South Dakota Department of Criminal Investigation during the morning of February 3, 1973, (the day after Christensen left Riverton) and had told him that slot machines were being carried to the Sioux Falls area. This informant described the truck in detail as an orange and white U-Haul rental truck with Oregon license plates, number T266-954. He also stated the driver was James Christensen, a resident of Sioux Falls. The affidavit went on to state that the affiant, Agent Donald Gromer of the Department of Criminal Investigation, had identified and followed the truck as it traveled toward Sioux Falls on the interstate highway during the morning of February 4, 1973, that it matched the description given by the informant and that James Christensen had been identified as the driver by a Sioux Falls Police Department detective who had joined the surveillance in that city and who knew Chirstensen personally. Further, the affidavit indicated that the truck did, in fact, arrive in Sioux Falls and that the informant had been used by the Department of Criminal Investigation several times previously, his information having “always been found to be reliable and accurate.”

There is no doubt but that an affidavit which will support issuance of a warrant “may be based on hearsay information and need not reflect the direct personal observations of the affiant.” Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723 (1964). And, of course, the magistrate may rely upon information received through an informant. Jones v. United States, 362 U.S. 257, 269, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). The issue in this case, therefore, is “whether the magistrate was given sufficient basis for crediting the informer’s tip,” United States v. Marihart, 472 F.2d 809, 812 (8th Cir. 1972) (en banc), cert. denied,-U.S.-, 95 S.Ct. 46, 41 L.Ed.2d 51 (1974); for the tip, if true, would clearly have provided probable cause to conduct a search of the truck. Marihart is this Court’s most recent attempt to deal with the problem of when a magistrate may rely on a hearsay informant’s tip, a problem which has received considerable attention from the Supreme Court. Having been decided subsequent to the Supreme Court’s latest opinion dealing with this issue, United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971), we believe that Marihart's interpretation of the principles involved is controlling in the disposition of the instant appeal.

In Aguilar the Supreme Court laid down a two-pronged standard for testing the credibility of an informant’s tip upon which a magistrate is asked to rely: (1) The magistrate must be given some of the underlying circumstances from which the affiant concluded that the informant was credible or that his information was reliable; and (2) he must be given some of the underlying circumstances from which the informant reached the conclusions conveyed in the tip. Aguilar v. Texas, supra, 378 U.S. at 114, 84 S.Ct. 1509; United States v. Marihart, supra, 472 F.2d at 812.

The affidavit herein recited that the informant had been used several times before by the Department of Criminal Investigation and had been found to be reliable and accurate. This sufficiently meets the first prong of the Aguilar test. The fact that an informant has previously given accurate information may be a sufficient test of his reliability. McCreary v. Sigler, 406 F.2d 1264, 1269 (8th Cir.), cert. denied, 395 U.S. 984, 89 S.Ct. 2149, 23 L.Ed.2d 773 (1969). However, additionally, here, the magistrate had within the affidavit some corroboration of the story told by the informant. The description of the truck, its driver and its destination, all related by the informant, had been corroborated by independent police surveillance. The informant’s reliability was, therefore, established. McCreary v. Sigler, supra, 406 F.2d at 1269.

The second prong of Aguilar, on the other hand, has not been satisfied here because the affidavit revealed nothing as to how the informant reached his conclusion that the truck contained slot machines. This does not, however, end the inquiry. In Marihart this Court, after carefully analyzing Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), concluded:

Spinelli thus stands squarely for the proposition that even if the two-pronged test of Aguilar is not met, the information before the magistrate may be sufficient if, as in Draper [Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959)], it is sufficiently detailed, or sufficiently corroborated, to supply as much trustworthiness as does the Aguilar test.

United States v. Marihart, supra, 472 F.2d at 813. See also United States v. Lopez-Ortiz, 492 F.2d 109, 114 (5th Cir. 1974); United States v. Black, 476 F.2d 267, 269 (5th Cir. 1973); United States v. Gimelstob, 475 F.2d 157, 159-160 (3d Cir.), cert. denied, 414 U.S. 828, 94 S.Ct. 49, 38 L.Ed.2d 62 (1973).

In short, the type of information relied upon in Draper, if present, will provide an alternative to strict compliance with both prongs of Aguilar.

Particularly pertinent to the instant appeal is the following language from Spinelli:

In the absence of a statement detailing the manner in which the information was gathered, it is especially important that the tip describe the accused’s criminal activity in sufficient detail that the magistrate may know that he is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual’s general reputation.
The detail provided by the informant in Draper v. United States, 358 U.S. 307, [79 S.Ct. 329, 3 L.Ed.2d 327] (1959), provides a suitable benchmark. While Hereford, the Government’s informer in that case, did not state the way in which he had obtained his information, he reported that Draper had gone to Chicago the day before by train and that he would return to Denver by train with three ounces of heroin on one of two specified mornings. Moreover, Hereford went on to describe, with minute particularity, the clothes that Draper would be wearing upon his arrival at the Denver station. A magistrate, when confronted with such detail, could reasonably infer that the informant had gained his information in a reliable way.

Spinelli v. United States, supra, 393 U.S. at 416-417, 89 S.Ct. at 589. (Footnote omitted.)

Utilizing Draper as a “benchmark” we are satisfied that the informant herein did describe the criminal activity in sufficient detail to assure the tip’s reliability. He stated that slot machines were being transported and gave an estimated value of this equipment. He described the truck by color and by rental system. He indicated the license number of the truck. And he correctly identified the driver and the destination of the truck. Certainly there is as much detail and particularity here as in Draper

The key question which must be asked by the magistrate is: “Can it fairly be said that the tip, even when certain parts of it have been corroborated by independent sources, is as trustworthy as a tip which would pass Aguilar’s tests without independent corroboration ?” Spinelli v. United States, supra, 393 U.S. at 415, 89 S.Ct. at 588. In the instant case we are convinced that the answer must be in the affirmative.

In summary, we think that the specificity and corroboration of the informant’s tip were sufficient to support the magistrate’s determination that it was true. There was, therefore, probable cause to issue the search warrant, and the trial court properly refused to suppress the evidence.

II.

Cummings alleges that there was insufficient evidence to support the trial court’s conclusion that there had been a knowing transportation of the slot machines in interstate commerce as required by the statute, which provides that “[i]t shall be unlawful knowingly to transport any gambling device [from one state to another].” 15 U.S.C. § 1172. (Emphasis supplied.)

In determining whether or not there has been such a knowing transportation two questions are relevant: (1) Did the defendant know that he was transporting the devices in interstate commerce? (2) Did he know that the machines transported were gambling devices? United States v. Twelve Miami Digger Slot Machines, 213 F.2d 918, 921 (5th Cir. 1954).

There is no dispute over the answer to the second question — Cummings knew that the slot machines - were gambling devices. He does not contend on appeal that dismantling them changed their character for purposes of enforcing the statute.

The first question was answered in the affirmative by the trial judge acting as the trier of fact. It is axiomatic that on appeal from the guilty verdict we must view the evidence on this point in the light most favorable to the government and must “accept as established all reasonable inferences to support the conviction.” United States v. Gaskill, 491 F.2d 981, 982 (8th Cir. 1974). See also Nilva v. United States, 212 F.2d 115, 121 (8th Cir.), cert. denied, 348 U.S. 825, 75 S.Ct. 40, 99 L.Ed. 650 (1954) [application of this principle in a case involving interstate transportation of gambling devices].

A careful review of the record has convinced us that, in light of this principle, the trial judge’s conclusion that Cummings did know that he was transporting the slot machines in interstate commerce is supported by sufficient evidence. Cummings offered evidence which strongly suggested that the devices were to be unloaded and stored in Wyoming. But the inferences which can logically be drawn from his actions, particularly his hiring of drivers in Sioux Falls to (according to his version) drive a truck between two points within Wyoming, his secretive manner with these drivers and his directions to James Christensen to drive the truck to a specific parking lot in Sioux Falls without ever warning him not to go into South Dakota without first unloading the truck, just as strongly point to a knowing interstate transportation. Other facts from which the knowledge element can be inferred are: (1) the dismantling of the slot machines, which could have been preparatory to a defense that they were no longer gambling devices; (2) the renting of two U-Haul trucks to go to Sioux Falls when, even if it were true that Cummings desired to have two player pianos picked up in Hot Springs and delivered to Sioux Falls, only one truck would be needed for that purpose; (3) the lack of any means whereby the driver could get into the cargo area of the truck, which would be necessary were he to unload it in Wyoming without Cummings present. It is recognized that the evidence in this case was not all one-sided in favor of the government. However, there clearly was sufficient evidence of intent to support the guilty verdict.

III.

Cummings urges that the district judge abused his discretion in granting a continuance of seven weeks from September 21, 1973, to November 9, 1973, to allow the government to put on rebuttal testimony after the close of the defendant’s case. This continuance was granted over Cummings’ strenuous objection. It is asserted that this delay prejudiced Cummings and denied him his sixth amendment right to a speedy trial.

In Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972), the Supreme Court recognized that speedy trial cases must be approached on an ad hoc basis, but did identify four factors which should be utilized by courts to make a balancing test in each instance: “Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” (Footnote omitted.)

We recognize that a seven week delay during the course of the trial could be considered to be presumptively prejudicial. However, the reason for the original delay — a missing witness— “should serve to justify appropriate delay.” Barker v. Wingo, supra, 407 U.S. at 531, 92 S.Ct. at 2192.

Most importantly, we do not think that Cummings was prejudiced by the delay. Again in Barker the Court identified three interests of defendants which the right to speedy trial was designed to protect: “(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.” Barker v. Wingo, supra, 407 U.S. at 532, 92 S.Ct. at 2193. (Footnote omitted.) Of these, only (ii) has any relevance here. However, there is no indication that Cummings was deprived of employment, subjected to public scorn or otherwise hampered by the delay, which was not an indefinite prolongation of the oppression of being under indictment. Cf. Klopfer v. North Carolina, 386 U.S. 213, 221-222, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967). Neither is there any indication that the testimony of the rebuttal witness was a serious factor in the trial court’s decision.

On balance, then, we conclude that the right to speedy trial was not violated here. There was justification for the delay, which was not inordinately lengthy, and there was no substantial prejudice to Cummings. See, United States v. Ackerson, 502 F.2d 300 at 302-303 (8th Cir. 1974).

IV.

It is argued that the court erred in refusing to strike the testimony of the rebuttal witness, Louis Singer. This evidence, which involved prior incidents in which Cummings or his company had allegedly bought and transported gambling devices, was originally admitted to show intent and knowledge. Evidence of other crimes is admissible to prove these elements when they are in issue. Sears v. United States, 490 F.2d 150, 152 (8th Cir. 1974); C. McCormick, Law of Evidence § 190 (2d ed. 1972).

However, during the course of the examination of the witness it became clear that this evidence was not clear and convincing and that it had slight probative value. This Court has said that before evidence of other crimes is admitted:

it must be shown that (1) an issue on which other crime evidence may be received is raised; (2) that the proffered evidence is relevant to that issue; (3) that the evidence is clear and convincing; and (4) that the probative worth outweighs the probable prejudicial impact.

United States v. Clemons, 503 F.2d 486 at 489 (8th Cir. 1974).

Nonetheless, we do not believe that the refusal to strike calls for a reversal here. This was a trial to the court, and the judge indicated he was well aware of the weakness of the testimony. This, along with the complete > absence of any reference to the testimony in his memorandum opinion, demonstrates that upon review the judge recognized that the testimony was neither clear and convincing nor more probative than prejudicial. No inferences were drawn from it, and the guilty verdict was amply supported by the other evidence in the ease.

For the foregoing reasons the judgment of conviction is affirmed.

LAY, Circuit Judge

(dissenting).

I respectfully dissent from Part I of the majority opinion which holds that the magistrate had probable cause to issue the search warrant. The legal question of when probable cause to issue a search warrant exists is a recurring one but, in my judgment, the legal principles involved are now crystallized. I believe they establish reasonable tests which are objective in nature and relatively simple in application.

The two-pronged test of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), requires the magistrate to find, on the basis of the showing made, (1) underlying circumstances sufficient to demonstrate the credibility of the informant or the reliability of his information, and (2) the underlying circumstances from which the informant reliably reached the conclusion that criminal activity was involved.

In the present case, the majority agrees that the second part of the Aguilar test “has not been satisfied here because the affidavit revealed nothing as to how the informant reached his conclusion that the truck contained slot machines.” Reliance is then placed on this court’s opinion in United States v. Marihart, 472 F.2d 809 (8th Cir. 1972) (Lay and Heaney, JJ., dissenting), which indicates that probable cause may still exist if the information before the magistrate “is sufficiently detailed, or sufficiently corroborated, to supply as much trustworthiness as does the Aguilar test.” Id. at 813. The court in Marihart relied on United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971), and Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). However, eonclusory statements such as “sufficient detail” or “sufficient corroboration” fail to explain the reasoning behind the result in those cases. Marihart, Harris and Draper held, essentially, that the factual basis for the information contained in an affidavit need not be contained in the affidavit if the information disclosed is such that it could only have been the re-suit of “firsthand observation and activity” by the informant. Marihart, supra, 472 F.2d at 814. Cf. McCreary v. Sigler, 406 F.2d 1264, 1268-1269 (8th Cir.), cert. denied, 395 U.S. 984, 89 S.Ct. 2149, 23 L.Ed.2d 773 (1969).

Thus, in Harris, as in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1969), the affidavit recited

. . . personal and recent observations by an unidentified informant of criminal activity factor showing that the information had been gained in a reliable manner, and serving to distinguish both tips from that held insufficient in Spinelli, ... in which the affidavit failed to explain how the informant came by his information. (Emphasis added.)

403 U.S. at 579, 91 S.Ct. at 2080.

In Marihart the affidavit stated that the informant’s tip had b'een partially verified by a police officer who observed three men as they unloaded a large pasteboard box, believed to contain the stolen firearms, and placed it in a vacant apartment. The affidavit in Mari-hart described clandestine activity, thus borrowing from Harris (the observed criminal activity), and from Draper (extensive corroboration of the informant’s tip).

In the present ease there was no reference to any personal observation of criminal activity. There was nothing in what the affidavit related which indicated firsthand knowledge of criminal activity. Cf. McCreary v. Sigler, supra. The affidavit merely described a truck and its license number and correctly identified its driver, owner and destination. This fails to indicate in any way firsthand knowledge of criminal activity. This is no different from the agents being told that the defendant in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), lived at a certain apartment address and had unlisted telephone numbers. Verification of the information concerning the truck’s destination did no more to complete the affidavit in this case than did the verification of the information concerning Spinelli’s readily observable movements in that case. It is true that this fact tended to corroborate the informant’s tip, but it hardly reveals minute details from which firsthand knowledge of the criminal activity could be reliably implied. It did not afford the same level or degree of corroboration found in Draper, where the Court held that a detailed description of the alleged offender provided reasonable grounds to believe that information concerning criminal activity was based on first hand observation.

In United States v. Mitchell, 425 F.2d 1353 (8th Cir.), cert. denied, 400 U.S. 853, 91 S.Ct. 85, 27 L.Ed.2d 90 (1970), Judge Blackmun observed that Draper turns on the same judicial standard set forth in Aguilar and Spinelli. In commenting on Draper, the Supreme Court observed in Spinelli:

A magistrate, when confronted with such detail, could reasonably infer that the informant had gained his information in a reliable way. . . .
Nor do we believe that the patent doubts Aguilar raises as to the report’s reliability are adequately resolved by a consideration of the allegations detailing the FBI’s independent, investigative efforts .... Once again, Draper provides a relevant comparison. Independent police work in that case corroborated much more than one small detail that had been provided by the informant. There, the police, upon meeting the inbound Denver train on the second morning specified by informer Hereford, saw a man whose dress corresponded precisely to Hereford’s detailed description. It was then apparent that the informant had not been fabricating his report out of whole cloth; since the report was of the sort which in common experience may be recognized as having been obtained in a reliable way, it was perfectly clear that probable cause had been established. (Emphasis added.)

393 U.S. at 417-418, 89 S.Ct. at 589.

Information that a person is going to travel from one town to another (especially if he lives in the latter community) is hardly of the sort that common experience, sense or logic finds so unusual or indicative of personal knowledge or observation that the reliability of allegations of criminal activity may be premised upon it.

The exclusionary rule by which illegally seized evidence is not admissible at trial is seldom understood by laymen or law enforcement officials who zealously attempt to rid crime-infested cities of criminals. Emotional attacks are continually made on its efficacy and continuing viability. The Fourth Amendment right, which the exclusionary rule seeks to protect, i. e., the right to enjoy the sanctity and privacy of one’s person and home free from unlawful governmental intrusion, is, however, fundamental. It is one of the basic rights separating all of us from a totalitarian state.

It is of fundamental importance, if the rights guaranteed by the Fourth Amendment are to remain inviolate, that law enforcement officials fully comprehend the line of demarcation between a legal and an illegal search. Magistrates, unless they profess to be a mere conduit for issuance of illegal warrants, must be able to easily discern the legal requirements of probable cause. This will never occur as long as we premise lawful searches on quantitative standards which turn only on the subjective analysis of these officials.

If the law governing search and seizure is to have any clarity, the principles governing sufficiency of probable cause must be objectively defined. A valid search cannot turn on conclusory affidavits which contain neither an express nor an implied revelation of the underlying circumstances by which the information is acquired. None was shown here and the evidence should have . been suppressed.

      . See United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971) ; Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 3031, 28 L.Ed.2d 306 (1971) ; Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969) ; McCray v. Illinois, 386 U.S. 300, 301-305, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967) ; Bock v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed .2d 142 (1964) ; Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed. 2d 723 (1964) ; Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825, 11 L.Ed.2d 887 (1964) ; Jones v. United States, 362 U.S. 257, 267-273, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960) ; Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959) ; Henry v. United States, 361 U.S. 98, 80 S. Ct. 168, 4 L.Ed.2d 134 (1959).

      . In United States v. Marihart, supra, 472 F.2d at 814 n. 6, this Court stated :
      As demonstrated in Part III B of this opinion, we do not believe Draper is limited to the degree of detail of tips of future activity. The question is the reliability of the method by which the informer acquired bis information, not lii.s talents as a I>rognosticator. Thus a combination of detail and corroboration of x>ast and future incriminating conduct will suffice.
      In the instant case the affidavit reveals such a “combination.”

      . Judge Nichol stated :
      But I frankly agree with Mr. Doyle [a defense attorney] — I’m not saying I’m going to necessarily strike it, but I just can’t see, really, where Mr. Singer’s testimony has been very helpful to the Government, or why we should have had this long delay to bring this testimony in.

      . In Jones the affidavit read :
      [O]n many occasions the source of information has gone to said apartment and purchased narcotic drugs from the above-mentioned persons and that the narcotics were secreated [sic] in the above mentioned places. The last time being August 20, 1957.
      362 U.S. at 267-268 n. 2, 80 S.Ct. at 734.
      In Harris the affidavit read :
      This person has personal knowledge of and has purchased illicit whiskey from within the residence described, for a period of more than 2 years, and most recently within the past two weeks, has knowledge of a person who purchased illicit whiskey within the past two days from the house, has personal knowledge that the illicit whiskey is consumed by purchasers in the outbuilding known as and utilized as the “dance hall,” and has seen Roosevelt Harris go to the other outbuilding, located about 50 yards from the residence, on numerous occasions, to obtain the whiskey for this person and other persons.
      403 U.S. at 575-576, 91 S.Ct. at 2078.


source: Caselaw Access Project

author: FEINBERG, Circuit Judge:

license: Public Domain

text:
    James RHEM et al., Plaintiffs-Appellees, v. Benjamin J. MALCOLM, Commissioner of Correction for the City of New York, et al., Defendants-Appellants, Peter Preiser, Commissioner of Correction of the State of New York, et al., Defendants.
    No. 329, Docket 74-2072.
    United States Court of Appeals, Second Circuit.
    Argued Sept. 25, 1974.
    Decided Nov. 8, 1974.

      For opinion after remand, see 389 F.Supp. 964.

      Stanley Buchsbaum, New York City (Adrian P. Burke, Corp. Counsel for City of New York, L. Kevin Sheridan, Leonard Bernikow, Kew Gardens, N. Y., Mark D. Lefkowitz, New York City, on the brief), for defendants-appellants.
    Joel Berger, New York City (William E. Hellerstein, Steven A. Herman, Eric Neisser, The Legal Aid Society Prisoners’ Rights Project, New York City, on the brief), for plaintiffs-appellees.
    Before LUMBARD, FEINBERG and OAKES, Circuit Judges.
   FEINBERG, Circuit Judge:

In September 1970 — one month after an explosive riot at the Manhattan House of Detention for Men — several inmates brought a civil rights action under 42 U.S.C. § 1983 in the United States District Court for the Southern District of New York against various New York City and State officials. The complaint alleged that conditions in the House of Detention, better known as the Tombs, denied plaintiffs and the class they represent their “fundamental constitutional rights.” In January 1974, after a trial which lasted several weeks, Judge Morris E. Lasker held that the circumstances under which unconvicted, pre-trial detainees were confined in that institution “manifestly violate the Constitution.” The judge stated that “the dismal conditions” at the Tombs “would shock the conscience of any citizen who knew of them.” 371 F.Supp. 594, 636. In March 1974, the judge entered final judgment on certain issues not now relevant, set a hearing date for further consideration of others, and ordered the City defendants to submit a plan for the elimination of the remaining conditions which had been held unconstitutional. After some delay, the City finally flatly refused to submit the required plan. Thereafter, the court, on July 11, 1974, enjoined the City from confining any person in the Tombs after August 10, 1974.

The City appealed from the July 11 order and sought a stay. In August, a panel of this court granted a conditional stay and expedited the appeal. We heard argument on September 25, and the stay has continued in effect. Appellant attacks both the substance of the district court’s findings and the relief granted. The City claims that conditions at the Tombs, while far from ideal, do not violate due process. Even if this is not true, the City argues, the order directing it to submit a plan was improper and the order closing the Tombs was unreasonable. For reasons set forth below, we affirm the judgment of the district court insofar as it held unconstitutional certain conditions at the Tombs but remand for further consideration of the court’s order.

I

In holding that the constitutional rights of unconvicted, pre-trial detainees had been violated, Judge Lasker wrote a thoroughly documented and persuasive opinion. 371 F.Supp. 594. The judge made detailed findings on excessive use of maximum security conditions; limitations on visiting rights; insufficient opportunities for exercise, recreation and education; the intolerable living environment created by the combination of excessive heat and noise, inadequate ventilation, and inability to see out of the building; and the failure to staff the jail adequately. There is no need to list the judge’s findings in detail. They present a melancholy picture of a fortress in bedlam. In short, according to the judge,

The totality of circumstances at [the Tombs] have produced dismal conditions significantly inferior to those existing at New York State penal institutions and many other municipal or federal houses of detention.

371 F.Supp. at 622. The City does not argue that the judge’s essential findings of fact are clearly erroneous. It could not do so with success in any event since the findings are solidly supported by the record.

The district judge went on to analyze the constitutional issues involved. As he viewed it, the core of plaintiffs’ constitutional arguments is that they are not convicted felons but are pre-trial detainees, presumed innocent of the charges against them but imprisoned only for failure to make bail. The judge accepted the following propositions as “now firmly embedded in the law.” The demands of equal protection of the laws and of due process prohibit depriving pre-trial detainees of the rights of other citizens to a greater extent than necessary to assure appearance at trial and security of the jail; and the same constitutional provisions prevent unjustifiable confinement of detainees under worse conditions than convicted prisoners. 371 F.Supp. at 623. We agree with these propositions and rely, as did the district judge, upon the considerable number of recent decisions applying them. Although there have been few direct appellate holdings on the subject, the many district court opinions cited by Judge Lasker are indeed persuasive. Thus, in Brenneman v. Madi-gan, 343 F.Supp. 128 (N.D.Cal.1972), the court held that:

Pre-trial detainees do not stand on the same footing as convicted inmates. [Subjecting pre-trial detainees to restrictions and privations other than those which inhere in their confinement itself or which are justified by compelling necessities of jail administration, is a violation of the due process and equal protection clauses of the Fourteenth Amendment.

Id. 343 F.Supp. at 142. In Jones v. Wit-tenberg, 323 F.Supp. 93, and 330 F. Supp. 707 (N.D.Ohio 1971), aff’d sub nom., Jones v. Metzger, 456 F.2d 854 (6th Cir. 1972), the court put it this way:

[detainees] are not to be subjected to any hardship except those absolutely requisite for the purpose of confinement only, and they retain all the rights of an ordinary citizen except the right to go and come as they please. [Otherwise] their confinement . . . denies them the equal protection of the laws.

323 F.Supp. at 100. Similarly, in Hamilton v. Love, 328 F.Supp. 1182 (E.D. Ark.1971), the court stated:

The distinction between those detained and those on bail must be based upon the State’s determination that there is a need for physical custody of the former. . . . Accepting this distinction as constitutionally permissible, then it is manifestly obvious that the conditions of incarceration for detainees must, cumulatively, add up to the least restrictive means of achieving the purpose requiring and justifying the deprivation of liberty.

Id. at 1192. Some district courts have also found the cruel and unusual punishment prohibition of the eighth amendment directly applicable to detainees. This court, however, has expressed “considerable doubt that the clause is properly applicable at all until after conviction and sentence.” Johnson v. Glick, 481 F.2d 1028, 1032 (2d Cir.), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 32 (1973). Accordingly, we prefer to adopt the approach taken by the district judge here that a detainee is entitled to protection from cruel and unusual punishment as a matter of due process and, where relevant, equal protection. 371 F.Supp. at 623-624 & n. 5. See also Inmates of Suffolk County Jail v. Eisenstadt, 360 F.Supp. 676, 688 (D.Mass.1973), aff’d, 494 F.2d 1196 (1st Cir.), cert. denied,-U.S.-, 95 S.Ct. 239, 42 L.Ed.2d 189 (1974).

Testing conditions in the Tombs against these standards, the judge held that the constitutional rights of detainees were violated in the following ways, among others. All detainees are kept in maximum security conditions and are locked in a cage-like cell 16 hours a day, as a result of appellant’s failure to establish a classification system to winnow out the approximately 20 per cent for whom maximum security might be necessary. For the remaining portion of the day, detainees are relegated to enforced idleness on noisy, stifling tiers. Failure to provide for contact visits eliminates altogether any chance “to shake hands with a friend, to kiss a wife, or to fondle a child,” and visiting rights generally are unnecessarily limited and far less than those accorded convicted felons, restrictions not shown to be justified by security considerations. The 50-minute per week opportunity for exercise is inadequate. Finally, the extremes of heat and noise, the poor ventilation, and the inability to see the sun in the sky “in some instances threaten, and in all cases unnecessarily burden the health” of the detainees. Id. 371 F. Supp. at 627.

On this phase of the case, appellant offers a number of arguments— none very persuasive. The City first contends that while conditions at the Tombs may be “very uncomfortable,” they do not deny due process. Thus, the City first tries to distinguish a number of the cases relied on by the district judge. It is true that in some, conditions were worse in many respects— though not in all — than those in the Tombs. E. g., Inmates of Suffolk County Jail v. Eisenstadt, supra; Brenneman v. Madigan, supra; Hamilton v. Love, supra (defendants stipulated conditions violated Constitution); Jones v. Wittenberg, supra. But this proves only that some jails are even less tolerable than the Tombs, not that the district judge here was necessarily in error. Arguing that conditions at the Tombs are not “shocking to the conscience,” the City-also attacks Judge Lasker’s conclusion that maximum security confinement constituted cruel punishment “at least for those in whose cases maximum security is not required.” 371 F.Supp. at 624 n. 5. However, because the rights of detainees rather than of convicted defendants are involved, the district judge did not have to decide whether conditions at the Tombs were so bad as to be “cruel and unusual punishment” even for convicted felons. It is enough if the con-cededly “very uncomfortable” conditions for detainees are so unnecessary as to be a denial of due process or compare so unfavorably with those accorded by the state to convicted defendants elsewhere as to deny equal- protection of the laws. For it must always be remembered that detainees are not, as yet, guilty of anything.

The City next turns to some of the specific facts found by the court below. As to the heat, lack of ventilation and noise, appellant’s principal argument seems to be that other New York City residents also experience similar unpleasant and unhealthy conditions. We assume that the argument is made in good faith, although it is difficult to take it seriously. Whatever may be the temporary inconvenience for New York City employees or residents in summer heat or winter cold, in office, apartment or subway, the evidence clearly shows that extremes are worse in the Tombs or of longer duration. Moreover, these hardships are imposed by the City in the exercise of its powers of custody over inmates. Next, appellant justifies the failure to provide contact visits for detainees by pointing to the dangers to prison security. While this concern is an important one, Judge Lasker found that federal detainees, held a few blocks away, are permitted such visits as are detainees in other cities, such as Philadelphia. The judge held that the evidence before him established that the “risk caused by contact visits will be marginal and controllable,” a finding not clearly erroneous, and that such visits, including liberalized visiting days and hours were required “at least for all detainees who, by classification, are shown not to require maximum security custody.” 371 F.Supp. at 626.

The reference to classification underlines one of the key issues on appeal. If it is possible to identify those detainees who are potentially violent or are likely to try to escape, it is quite clear that the constitutional rights of the much larger group of non-dangerous inmates are violated by the maximum security conditions of the Tombs. The judge found as a fact that it was “feasible” for the City to classify inmates although it had not done so. 371 F.Supp. at 620. The City’s principal claim to us is that a classification system would have to be based upon interviews with inmates, which would necessarily require them to incriminate themselves in violation of the fifth amendment. The argument is specious. While the questionnaire drawn up by an expert retained by the City might have been properly criticized on this ground, other approaches now used in comparable institutions are obviously available. The frivolity of appellant’s argument is shown by its citation of a Report of the City Board of Correction to attack this expert’s proposed classification system, while ignoring the immediately preceding statement in the Report that:

We believe that it is incumbent upon the Department of Correction to introduce as quickly as possible at the Tombs ... a classification system, which can determine to the best extent possible the degree of security required for individual inmates.

Finally, the City argues that appel-lees, “in describing the conditions at the Tombs which existed at trial, often fail to note the various changes that have since been implemented.” Strictly speaking, the point is irrelevant since the judge’s findings of fact and conclusions of law should ordinarily be considered on the basis of the record at trial. However, in his memorandum opinion of July 1974, accompanying the order under attack, the judge recognized that during the preceding six months “some improvements have been made in the conditions” that were the basis of his January 1974 findings, but concluded that, “nevertheless, . . . the bulk of those conditions remain as they were.” Significantly, a few weeks later the City Board of Correction, in the Report already referred to, recommended closing the Tombs for redesign and renovation because of the “fundamentally inhuman environment.”

In short, after a review of the record and the applicable law, there is no doubt at all in our minds that Judge Lasker’s findings of fact and conclusions of law in his detailed opinion in January 1974 must be affirmed. We turn now to the propriety of his order devising equitable relief.

II

In March 1974, following a series of conferences and written submissions by both parties, the district court entered a judgment based upon its January opinion. For purposes of this appeal, the key provision of the order required the City to submit within 30 days

a comprehensive and detailed plan for the elimination of all conditions and practices declared to be in violation of the Constitution of the United States by the Court’s opinion of January 7, 1974, as to which final judgment has not been entered herein.

After filing various submissions which the district court found unresponsive, the City finally refused to submit the required plan. Stating that it “cannot accept the City’s blank refusal to comply with major portions” of its order, the district court on July 11, 1974, enjoined the City from further confining anyone in the Tombs after August 10, 1974. The judge made clear, however, that the order would be reconsidered if the City submitted a plan.

Appellant attacks this order on a number of grounds. First, the City claims that it was afforded too little time in which to make the required submission. It is true that the March 1974 order gave appellant only 30 days to come up with “a comprehensive and detailed plan,” perhaps too short a period for prudent consideration of all the alternatives. As appellant points out, these included alteration of the Tombs, construction of a new jailhouse, or the use of facilities at Rikers Island. But whatever the stringency of the March order, the judge did not order the Tombs closed until July, and even then postponed the order’s effective date to August 10, and indicated that he would reconsider this action if the City made a good faith effort to comply. At that time, it must be emphasized, the lawsuit had been pending for almost four years, and the judge’s decision holding conditions at the Tombs unconstitutional had been issued six months before. If the handwriting was not yet clearly on the wall, it was at least more than barely legible to an interested reader. The City’s claim that overall it did not have enough time to submit its plan is not persuasive.

Appellant also argues that the March order “constituted an unnecessary and excessive intrusion by the Court into the details of government.” Instead of getting involved in “all sorts of matters that belong within the jurisdiction of the executive and legislative arms of government,” according to appellant, the district court “could have directed that conditions be remedied by a reasonable date.” Citing Inmates of Suffolk County Jail v. Eisenstadt, supra, the City claims that the court there “made no such attempt to control how the defendants remedied the unconstitutional conditions,” and instead merely ordered that no one be confined in the institution after three years from the date of the opinion. The City’s limited description of what the court did in Inmates of Suffolk County Jail is incorrect, see 360 F.Supp. at 690-693, and its citation of the case with apparent approval is odd. Judge Lasker did finally choose the course appellant says he should have followed in the first place. The July 11 order from which the City appeals directed the closing of the Tombs by August 10. Arguably, that provision standing alone might have allowed too short a grace period. But given the background of a thorough opinion in January, which could be ignored only at peril, we would not be prepared to call the August 10 deadline an abuse of discretion had the district judge fixed it in January. Therefore, appellant is in the curious position of claiming that the district judge was too flexible, and erred because he refused at first to utilize his powers to the fullest and forbid use of the Tombs to house detainees after a specified date in the future. But since the district judge did not at first go that far — indeed, he clearly did not want to take such drastic action — we should meet appellant’s argument head-on.

Even a brief review of recent decisions dealing with prison conditions makes clear that, contrary to the City’s assertion, there are many cases in which extensive changes in prison practices have been required by the federal courts. Local officials have been ordered to do everything from hiring dozens of guards and other workers and building new, or substantially altering old, facilities, to appointing a prison ombudsman and creating a Department of Detention and Correction. Nevertheless, this case is unusual because the remedy for constitutional violations requires such substantial physical changes in a jail located in the heart of a large metropolitan area. Under these circumstances, and with the City pleading “fiscal inability to commit itself to a comprehensive plan to restructure the institution,” we believe that the order should be framed to close the prison to detainees or to limit its use for detainees to certain narrow functions by a fixed date, unless specified standards are met. Cf. Inmates of Suffolk County Jail, supra. Once the appropriate standards or permissible limited uses are established, the court can then determine whether there has been compliance by the specified deadline. If the City fails to satisfy these criteria in time, the district judge, in his discretion, may postpone the effective date of any order, but he should do so only if clear and convincing proof of adequate planning and funding of improvements is produced. True, the ultimate effect of such a remedial scheme may not differ much from that used by Judge Lasker. It has the crucial practical advantage, however, of not putting the judge in the difficult position of trying to enforce a direct order to the City to raise and allocate large sums of money, see Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974), steps traditionally left to appropriate executive and legislative bodies responsible to the voters.

For these reasons, we are remanding this proceeding to the district judge to refashion the equitable relief. For example, he might require that no person awaiting trial be detained in the Tombs after a date certain unless conditions are upgraded to meet specific criteria, as outlined in his January opinion. Similarly, use of the Tombs might be limited to certain purposes, such as initial confinement for a fairly short period, or the overnight housing of detainees scheduled to appear in court or to consult with their attorneys the following day. In this second case, it might also be necessary to establish minimum standards as a prerequisite even for limited use. Finally, the judge will also have the option of ordering that no detainees be housed in the Tombs after a reasonable date if he feels certain that the City cannot — or will not — remedy constitutional deprivations. The choice of remedy, however, has tremendous implications not only for the City but also for pre-trial detainees who may find themselves dispersed to facilities far away from family, friends and attorneys. Therefore, the parties should have a further opportunity promptly to offer suggestions for such an order. However, the district judge should not allow another trial on the merits of plaintiffs’ claim or countenance any significant delay in fashioning another decree. Four years after ugly riots caused by conditions at the Tombs, the time has come to end this litigation.

Before closing this opinion, a further word may be appropriate. One does not get the impression from the record of defendants straining in every way to comply with the district court’s directions. The foot dragging is, of course, understandable. The financial woes of the City of New York are obvious to all who live or work here, including federal judges. And on the agenda of City priorities, which includes supply of such essential services as police and fire protection, provision of welfare, care of the ill, collection of garbage, and maintenance of the transit system, it is not surprising that the housing of those confined in jail is not at the top of the list. But pre-trial detainees are people, not outcasts, who are presumed to be innocent of any crime and who have rights guaranteed by the Constitution, as do we all. When a district court is presented with a claim of violation of those rights, its proper function is to decide the case before it, whatever sympathy it may have for those who must manage a great metropolis beset by grievous problems. Nor can similar considerations deflect us from the issues on appeal. Over two hundred years ago, Blackstone elegantly stated that pre-trial commitment for those unable to make bail

is only for safe custody, and not for punishment: therefore, in this dubious interval between the commitment and the trial, a prisoner ought to be used with the utmost humanity, and neither be loaded with needless fetters or subjected to other hardships than such as are absolutely requisite for the purpose of confinement only.

4 Blackstone, Commentaries 300. No undue sensitivity is required to perceive from this record that pre-trial detainees at the Tombs are “used” with less than “the utmost humanity.” It may not be simple to fashion a remedy that will remove the “needless fetters” and unnecessary “hardships,” threatening the spirit, health and sanity of detainees during the “dubious interval” they are confined in the Tombs. But such conditions cannot be condoned by continued inaction.

We affirm the order appealed from insofar as it is based upon findings of fact and conclusions of law that various conditions at the Tombs are unconstitutional. We remand the case to the district court for further consideration, in light of this opinion, of the relief to be granted.

      . The court enjoined defendants from interfering with plaintiffs’ rights to receive mail from courts and attorneys or printed reading material from any source, and from revoking visitation and correspondence rights as a punishment for institutional infractions. Hearing requirements were established for imposition of disciplinary punishment. The City and State defendants appealed the disciplinary hearing portion of the order. On July 16, 1974, this court remanded for reconsideration in light of Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974).

      . This hearing, which was held in March .1974, concerned the visiting program.

      . The City defendants now are Benjamin J. Malcolm, Commissioner of Correction; Peter Schaefer, AVarden, Manhattan House of Detention for Men; and Mayor Abraham D. Beame. Ifor convenience, we refer to them collectively as “the City” or “appellant.”

      . The stay was on condition that the City honor inmate requests for transfers to the New York City House of Detention for Men at Bikers Island or to other available facilities made by prisoners who had already been at the Tombs 40 days or who, after the order, were held more than 14 days. Excepted were inmates currently on trial, those denominated escape risks, and those held for mental observation who were scheduled to be moved within six weeks to a new, specially-equipped facility. District Judge Prankel, sitting by designation, dissented as to the time limits and the exceptions for the latter two groups of inmates.

      . Plaintiff class was defined shortly after the action was commenced as including “all the inmates of the Tombs,” see Rhem v. McGrath, 326 F.Supp. 681, 682 (S.D.N.Y.1971), but we note that the prison is used to house a comparatively small group of convicted misdemeanants as well as pre-trial detainees, see 371 F.Supp. at 599. We have focused our opinion, as did Judge Lasker, only on the rights of the detainees. The constitutional theory applicable to convicted prisoners is sufficiently different from that discussed here to justify not regarding them as part of the plaintiff class for purposes of this appeal.

      . See, e. g., Johnson v. Lark, 365 F.Supp. 289, 301-303 (E.D.Mo.1973) ; Collins v. Schoonfield, 344 F.Supp. 257, 264-265 (D.Md.1972), and 363 F.Supp. 1152 (D.Md.1973) ; Jones v. Wittenberg, supra, 323 F. Supp. at 99-100. See also, Note, Constitutional Limitations on the Conditions of Pretrial Detention, 79 Yale L.J. 941, 951-953 (1970).

      . New York City Board of Correction, Report on the Future of the Manhattan House of Detention (Aug. 6, 1974).

      . Id. at 29.

      . Appellant’s Reply Brief at 2.

      . For example, the inmate population of the Tombs was approximately 1,300 at the start of the trial, but by July 11, 1974, it had fallen to 522.

      . Op. cit., note 7 supra, at 27.

      . We note that we do not deal in this opinion with the findings and conclusions underlying the judgment referred to in note 1 supra and accompanying text.

      . Appellant’s brief at 38, 40.

      . Id. at 40.

      . Hamilton v. Landrieu, 351 F.Supp. 549 (E.D.La.1972) (this order contains 53 separate substantive items), see also 338 F.Supp. 1016 (E.D.La.1970) ; Hamilton v. Love, supra, 328 F.Supp. at 1195-1196, see also 358 F.Supp. 338 and 361 F.Supp. 1235 (E.D. Ark.1973) ; Holt v. Sarver, 309 F.Supp. 362, 373-376, 383-385 (E.D.Ark.1970), aff’d, 442 F.2d 304 (8th Cir. 1971) (replacement of trusty guards with “free world” personnel in Arkansas penal system), see also 300 F.Supp. 825 (E.D.Ark.1969) and 363 F.Supp. 194 (E.D.Ark.1973) ; Taylor v. Sterrett, 344 F. Supp. 411, 422 (N.D.Tex.1972), aff’d in part, rev’d in part, 499 F.2d 367 (5th Cir. 1974).

      . Taylor v. Sterrett, supra (renovate cells for several hundred prisoners and provide facilities for recreational, religious and educational programs) ; Holt v. Sarver, supra (under prodding from court, state legislature appropriated money for new buildings and improvements) ; Hamilton v. Landrieu, supra (new infirmary ordered constructed immediately) ; Jones v. Wittenberg, supra, 330 F. Supp. at 720-721 (extensive repairs and re-modelling ordered).

      . Hamilton v. Landrieu, supra.

      . Appellant’s brief at 6.

      . Since prohibiting use of the Tombs to incarcerate detainees is a viable alternative, we do not have a situation where the unconstitutionally-administered governmental function must be kept operating in any event. In such a case, a court might have no choice but to order an expensive, burdensome or administratively inconvenient remedy. See, e. g., Swann v. Board of Educ., 402 U.S. 1, 28-30, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971) ; Goss v. Board of Educ., 482 F.2d 1044, 1046 (6th Cir. 1973) (en banc), cert. denied, 414 U.S. 1171, 94 S.Ct. 933, 39 L.Ed.2d 120 (1974) ; Medley v. School Board, 482 F.2d 1061, 1065 (4th Cir. 1973) (en banc), cert. denied, 414 U.S. 1172, 94 S.Ct. 933, 39 L.Ed.2d 120 (1974).

      . As the court said in Hamilton v. Love, supra, 328 F.Supp. at 1194:
      Inadequate resources can never be an adequate justification for the state’s depriving any person of his constitutional rights. If the state cannot obtain the resources to detain persons awaiting trial in accordance with minimum constitutional standards, then the state simply will not be permitted to detain such persons. The final decision may, indeed, rest with the qualified voters of the governmental unit involved. This Court, of course, cannot require the voters to make available the resources needed by public officials to meet constitutional standards, but it can and must require the release of persons held under conditions which violate their constitutional rights, at least where the correction of such conditions is not brought about within a reasonable time.
      A similar sentiment was expressed in Jones v. Wittenberg, supra, 330 F.Supp. at 712-713:
      [I]n order to build a new jail, the public must provide additional funds. This Court has no power whatsoever to require the public to do so. Under our system of government, the ultimate source of power is the people. The people have not given this Court any taxing power, or any control over their use of the taxing power. . . . [T]his Court will not attempt to exercise a power that it does not and should not have. There are strong reasons for thinking that a new jail should be built, and that in the long run substantial economies both in money and in lives could be effected by doing so. However, until a majority of the voters of Lucas County become convinced of this, there will be no new county jail.

      . The terms of the August order of this court permitting detainees held more than 14 days in the Tombs to request transfers to other institutions, see note 4 supra, will remain in effect until Judge Lasker, in his discretion, enters a further appropriate order.


author: FRIENDLY, Circuit Judge:

text:
    SHINKO BOEKI CO., LTD., Plaintiff-Appellant, v. S.S. “PIONEER MOON”, her engines, boilers, etc., and United States Lines, Inc., Defendants-Appellees.
    No. 294, Docket 74-1853.
    United States Court of Appeals, Second Circuit.
    September Term, 1974.
    Argued Nov. 15, 1974.
    Decided Nov. 29, 1974.

      Vincent L. Leibell, Jr., New York City, (Bigham, Englar, Jones & Houston, New York City, of counsel), for plaintiff-appellant.
    Richard H. Sommer, New York City, (J. Scot Provan, and Kirlin, Campbell & Keating, New York City, of counsel), for defendant-appellee.
    Before FRIENDLY, FEINBERG and GURFEIN, Circuit Judges.
   FRIENDLY, Circuit Judge:

We are here required, for the first time in this circuit, to consider the application to the shipment of liquids of § 4(5) of the Carriage of Goods by Sea Act, 46 U.S.C. § 1304(5), which limits the amount of damages, in cases where the carrier is liable, to “$500 per package . . . , or in case of goods not shipped in packages, per customary freight unit,” except when a higher value is declared and inserted in the bill of lading.

Plaintiff Shinko Boeki Co., Ltd., a Japanese company, ordered a large quantity of liquid latex from Firestone International Company. Firestone, acting as plaintiff’s agent, arranged for the latex to be transported on the Pioneer Moon, a ship of the defendant United States Lines, Inc., sailing from Baltimore, Md., early in December, 1968. The latex was to be carried in thirty-four lift-on, liftoff tanks. Each tank was 7'1" long, 7/9" wide and 6'4" high, was capable of carrying 2,000 gallons and weighed about seven tons when loaded. Apparently — although the record is not entirely clear on this — the tanks were filled by Firestone at the United States Lines’ facilities in Baltimore, the latex being pumped into the tanks while the latter were on the deck of the vessel. In any event the bill of lading with respect to twenty-four tanks, including the eleven here at issue, recited “free in and out pumping for account of owner of cargo.” Under the heading “No. of pkges,” the bill of lading listed a total of twenty-four, this being the number of the tanks, which were “said to weigh” 359,170 pounds. This was the weight of the liquid latex, not including that of the tanks. Also shown on the face of the bill of lading was a computation of the freight charges on the basis of $54 per long ton. Paragraph 24 of the long form bill of lading provided in part that:

It is agreed and understood that the meaning of the word ‘package’ includes containers, vans, trailers, pal-letized units, animals and all pieces, articles or things of any description whatsoever except goods shipped in bulk.

On arrival in Japan, eleven of the tanks were found to be either completely empty or their contents contaminated to an extent that the latex was unfit for its intended use. In making its claim, plaintiff repeatedly described its loss in terms of “11 tanks.” The claim having been rejected, plaintiff began this action against the carrier in the District Court for the Southern District of New York in January, 1970. When in the fullness of time the parties — more accurately their insurers — brought the case on for hearing, defendant admitted liability. The sole issue was the amount of recoverable damages, specifically whether the tanks containing the latex constituted “packages” for the purposes of COGSA’s § 4(5) damage limitation. If they did, then recovery would be $5,500, calculated on the basis of $500 per tank. If they did not, then damages were stipulated as $27,733.73, the pro-rata insured value of the lost latex and damage survey costs; this amount was within § 4(5)’s alternate damage recovery limitation of $500 per “customary freight unit”, in this case about $37,000, calculated on the basis of $500 per long ton. The district court concluded that the tanks were “packages” and awarded judgment for the lesser amount. From this the plaintiff has appealed. We reverse.

We begin, as we did in Leather’s Best, Inc. v. S.S. Mormaclynx, 451 F.2d 800, 815 (2 Cir. 1971), with “the belief that the purpose of § 4(5) of COGS A was to set a reasonable figure below which the carrier should not be permitted to limit his liability . . . . ” See the legislative history cited by Judge Weinfeld in Jones v. The Flying Clipper, 116 F.Supp. 386, 388-89 notes 10 and 11 (S.D.N.Y.1953); Gilmore & Black, The Law of Admiralty, 125-26 (1957); and Simon, The Law of Shipping Containers, 5 J.Mar.Law & Comm. 507, 518-19 (1974). Although large size and heavy weight, with probable consequent high value, do not mandate the conclusion that a particular shipment is not a “package” in a case where a shipper has done something to prepare the goods for carriage, see Aluminios Pozuelo Ltd. v. S.S. Navigator, 407 F.2d 152 (2 Cir. 1968), they at least suggest the need for careful scrutiny of the entire transaction to ascertain whether the complaining shipper in fact did any “packaging”. As Judge Moore explained in Aluminios, Id. at 155, the term “package” implies that “some packaging preparation for transportation has been made which facilitates handling . . . .” See also Nichimen Co., Inc. v. M. V. Far-land, 462 F.2d 319, 334-35 (2 Cir. 1972).

The evidence here was that there were three possible methods for the ocean transport of liquid latex. One would have been shipment in metal drums each carrying 55 gallons; clearly these would have been “packages” and maximum liability for the equivalent of the eleven tanks would have been $200,000. Another method would have been to pump the latex into a ship’s deep tanks; in that case there clearly would have been no packages and the shipper could have recovered the $500 per shipping unit, The Bill, 55 F.Supp. 780, 783 (D.Md. 1944) (Chestnut, J.), quoted with approval in Waterman S.S. Corp. v. United States S. R. & M. Co., 155 F.2d 687, 693 (5 Cir.), cert. denied, 329 U.S. 761, 67 S.Ct. 115, 91 L.Ed. 656 (1946). However, shipment to the Far East in deep tanks was apparently unavailable at the time of the instant shipment. The third method was that actually employed.

Shipment in the 2,000 gallon tanks furnished by the ship is more closely analogous to shipment in its deep tanks than to transportation in the shipper’s drums. The tanks were the carrier’s property, used on voyage after voyage, not included in computing the freight charges, and apparently filled while under the supervision of a representative of the carrier. In practical effect they were a smaller and movable version of the deep tanks. They were “functionally part of the ship” every bit as much as the metal container holding ninety-nine bales of leather on the Mormaclynx, supra, 451 F.2d at 851. If, as we hold, the tanks furnished by the carrier were not packages, the quoted provision from the bill of lading could not make them so, 46 U.S.C. § 1303(8); in any case, we believe the liquid latex was within the exception for “goods shipped in bulk.”

Our decision is not inconsistent with Royal Typewriter Co. v. M/V Kulmer-land, 483 F.2d 645 (2 Cir. 1973), on which the defendant relies. The bill of lading in that case read only “1 container said to contain Machinery”, 483 F.2d at 646, and gave the carrier no notice of the number of cartons contained therein for which the shipper sought to collect $500 each. Here the weight was clearly stated. Moreover, the “functional economics test” there announced affords little help with respect to the bulk shipment of a liquid.

As is usual where a question arises whether a particular container is a “package” for purposes of § 4(5), there is a clamor for predictability. See e. g., DeOrchis, The Container and the Package Limitation — The Search for Predictability, 5 J.Mar.L. & Comm. 251 (1974). That, however, could be obtained as well by generally disregarding the final container, a course favored by shipper interests, see the article by Simon, supra, 5 J.Mar.L. & Comm. 507, 520-32, criticizing the Royal Typewriter decision, as by considering the container always to be the package at least when it contains goods of a single shipper, as the carriers advocate, see DeOrchis, supra. Moreover, as said by Judge Feinberg, dissenting in Standard Eléctrica, S.A. v. Hamburg Sudamerikanische Dampfschifffahrts-Gesellschaft, 375 F.2d 943, 948 (2 Cir.) cert. denied, 389 U.S. 831, 88 S.Ct. 97 19 L.Ed.2d 89 (1967), “certainty at the expense of legislative policy and equity is undesirable and often turns out to be ephemeral.” In line with that thought, we have endeavored, doubtless without complete success, to apply the statute in accord with the probable expectations of the parties. In any event our decision here should provide a fair degree of predictability within this circuit with respect to liability for the ocean transport of bulk liquids until the issue is resolved by higher authority or by treaty, see Royal Typewriter Co. v. M/V Kulmerland, supra, 483 F.2d at 648 n. 6.

The judgment is reversed, with instructions to enter a judgment for $27,-733.73, with interest from January 14, 1969 and costs.

      . This was the deposition testimony of John P. Grimes, who had been Chief Clerk in Firestone’s Traffic Department at the time of the shipment, which was received in evidence. A stipulation of facts also indicates that tlie tanks were loaded with the latex at Baltimore. Seemingly this overcomes the vague statement in the pre-trial order that Firestone “delivered” the tanks.


author: MEDINA, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Philip ZANE et al., Defendants-Appellants.
    Nos. 110 and 114, Dockets 74-1678 and 74-1839.
    United States Court of Appeals, Second Circuit.
    Argued Oct. 1, 1974.
    Decided Nov. 4, 1974.
    Certiorari Denied April 14, 1975.
    See 95 S.Ct. 1563.
    James E. Nesland, Asst. U. S. Atty., New York City (Paul J. Curran, U. S. Atty. for the Southern District of New York, and John D. Gordan III, Asst. U. S. Atty., New York City, on the brief), for plaintiff-appellee.
    Sandor Frankel, New York City (Louis Bender, New York City, on the brief), for defendants-appellants Philip Zane and Jerome E. Silverman.
    John Logan O’Donnell, New York City (Charles M. McCaghey, Stephen Sehles-singer and Olwine, Connelly, Chase, O’Donnell & Weyher, New York City, on the brief), for defendant-appellant Robert S. Persky.
    Before MEDINA, ANDERSON and MANSFIELD, Circuit Judges.
   MEDINA, Circuit Judge:

On June 13, 1973 Philip Zane, Jerome E. Silverman and Robert S. Persky, two accountants and a lawyer, were convicted after a five-week trial to Judge Wyatt and a jury on one count of a multi-count indictment for filing a false Form 10K Annual Report for Microthermal Applications, Inc. with the SEC. We affirmed 495 F.2d 683, cert. denied, - U.S. -, 95 S.Ct. 174, 42 L.Ed.2d 139 (1974). One of the defendants, Akiyoshi Yamada, pleaded guilty to a one-count indictment charging conspiracy to file the false report and he co-operated with the government. He gave extensive testimony implicating Zane, Silverman and Persky not only on the charge of which they were found guilty but on various other counts on which they were acquitted. Less than four weeks after the conviction of Zane, Silverman and Persky, Yamada came before Judge Cooper on a motion to reduce the sentence imposed on him for the crime to which he had pleaded guilty. In support of this motion five letters purportedly written by persons active in community affairs were submitted by Yamada to Judge Cooper. These letters, which testified to Yamada’s good character and praised his work with drug addicts, were written by Yamada himself to influence Judge Cooper. Claiming that proof that Yamada had forged these letters and that he had engaged in such fraudulent and criminal conduct constituted newly discovered evidence, Zane, Silverman and Persky made a motion for a new trial, pursuant to Rule 33, Fed.R.Crim.P. Judge Wyatt denied the motion from the bench remarking that Yamada’s ci’edibility had been fully explored at the trial, that the sending of the letters was merely cumulative evidence by way of impeachment and that such proof had no relevance to the issue of the filing of the false report with the SEC. He also found there was no probability that on a new trial with the benefit of the evidence concerning the fraudulent letters a new jury would reach a different conclusion with respect to the guilt of these appellants. This appeal is from the order of Judge Wyatt denying the motion for a new trial.

It requires no more than a brief recital of the law in this Circuit governing the function of the trial judge and that of this Court in connection with Rule 33 motions for a new trial on alleged newly discovered evidence to dispose of this appeal. In the exercise of .his discretion the trial judge must determine whether there is showing: (1) that the evidence could not with due diligence have been discovered until after the trial; (2) that the evidence is material to the factual issues at the trial and not merely cumulative and impeaching; and (3) that the evidence would probably produce a different result in the event of a new trial. United States v. Birrell, 482 F.2d 890, 892 (2d Cir. 1973); United States v. DeSapio, 456 F.2d 644, 647 (2d Cir.), cert. denied, 406 U.S. 933, 92 S.Ct. 1776, 32 L.Ed.2d 135 (1972); United States v. Polisi, 416 F.2d 573, 576-577 (2d Cir. 1969). Less exacting standards, not relevant here, are required in cases involving prosecutorial misconduct or negligence. See, United States v. Kahn, 472 F.2d 272, 287 (2d Cir.), cert. denied, 411 U.S. 982, 93 S.Ct. 2270, 36 L.Ed.2d 958 (1973). The function of the Court of Appeals is to decide whether the trial judge has applied these criteria and whether his finding that the application of these criteria required a denial of the motion is or is not clearly erroneous. It is not our function to speculate on the possibility that a jury on a new trial might acquit the defendants. As we conclude that Judge Wyatt applied the proper-criteria and that there is no tenable basis for holding that Judge Wyatt abused his discretion, or that his finding in applying the criteria was clearly erroneous, we affirm the order appealed from. It is especially important that this separate consideration of the respective functions of the trial judge and of an appellate court be made in Rule 33 cases involving long complicated trials.

It is obvious that the evidence of the forgery and sending of the letters was cumulative on the issue of credibility and that it had no bearing on the issue of whether or not appellants were guilty of filing the false report with the SEC. Yamada had a lengthy history of involvement in fraudulent securities schemes. Prior to the trial of the appellants, Yamada pleaded guilty to three one-count indictments, one of which concerned the conspiracy to file a false annual report for Microthermal. In return for cooperation with the government in the prosecution of the appellants, it was understood that the government would not proceed on other criminal offenses committed by Yamada, and also that the government would advise the court of his co-operation at the time of sentencing. At the trial, Yamada was subjected to thorough cross-examination. The basis of Yamada’s co-operation, the criminal charges, and his numerous fraudulent securities schemes were brought out to impeach his credibility. In addition, Yamada testified to destroying documents and giving perjurious testimony before the SEC in the course of its investigation into Microthermal.

In support of his finding that the evidence of the forged letters would probably not result in any different decision by the jury on a new trial, Judge Wyatt referred to his recollection of the proofs and his instructions to the jury. We find no reason to disturb a finding based upon such reasoning. We are not persuaded that a new jury would decide the case differently if it knew that Yamada’s claim at the first trial that he had reformed and turned over a new leaf was false. Indeed, at the time of the first trial he may have thought he had reformed.

Nevertheless, as we understand their arguments, appellants would have us develop some new law because of what they call the special circumstances of this case. Again and again appellants would have us reverse the decision below because Yamada’s testimony at the trial and his forgery of the letters were supposed to be part and parcel of a deep-seated determination to resort to any means to keep out of jail. This is indeed novel doctrine and it would result in new trials whenever after a criminal trial the conduct of a defendant-turned-government-witness indicated a desire to escape the toils of justice by any form of lying or skulduggery that could be made to appear similar to the alleged giving of false testimony at the trial in the hope of obtaining consideration for his co-operation with the prosecution.

Mesarosh v. United States, 352 U.S. 1, 77 S.Ct. 1, 1 L.Ed.2d 1 (1956), gives no support to the contentions of appellants here. It did not involve a defense motion for a new trial but rather a sui generis exercise by the Supreme Court of its supervisory jurisdiction at the instance of representation submitted by the Solicitor General.

The appellants place great emphasis on the fact that the forged and fictitious letters were submitted shortly after the conclusion of the trial resulting in the conviction of the appellants. This fact, however, does not alter the cumulative and impeaching character of these disclosures, nor does it provide an appropriate basis to distinguish this situation from other eases involving Rule 33 motions.

Affirmed.


author: CASTLE, Senior Circuit Judge.

text:
    Morris D. OBERMAN, Plaintiff-Appellant, v. DUN & BRADSTREET, INC., Defendant-Appellee.
    No. 73-1845.
    United States Court of Appeals, Seventh Circuit.
    Argued Sept. 23, 1974.
    Decided Dec. 3, 1974.
    Rehearing Denied Jan. 16, 1975.

      Elmer Gertz and Wayne B. Giampietro, Chicago, Ill., for plaintiff-appellant.
    Don H. Reuben and Lawrence Gunnels, Chicago, Ill., for defendant-appellee.
    Before HASTIE  and CASTLE, Senior Circuit Judges, and FAIRCHILD, Circuit Judge.

       Senior Circuit Judge William Henry Hastie of the Third Circuit is sitting by designation.

   CASTLE, Senior Circuit Judge.

Plaintiff Morris D. Oberman appeals from the entry of a judgment notwithstanding the verdict in favor of defendant Dun & Bradstreet, Inc. Oberman contends on appeal that the district court improperly concluded that certain testimony should have been excluded as inadmissible hearsay evidence, and that the district court erroneously granted the defendant’s motion for judgment n. o. v. We reverse the judgment of the district court and remand with directions to reinstate the jury’s verdict for the plaintiff and to proceed to trial on the remaining issues.

The single issue before the jury in this diversity action was whether an allegedly libelous credit report issued by defendant Dun & Bradstreet was the reason for Prudential Realty Company’s refusal to sell or lease a desired business property, the Hamlin Avenue building, to the plaintiff. At trial, Oberman testified, over objection, to an August 25, 1967 telephone conversation with Mr. Hubert Ranee, President of Prudential Realty Company, concerning the sale or lease of the Hamlin Avenue property. The essence of Oberman’s account of the telephone conversation was that Ranee stated that he could not lease the building to him because the Dun & Bradstreet credit report was unfavorable. Oberman testified:

I says, “Well, if you are buying the building you will need a lessee, so I will lease the building. .
He [Ranee] said, “Well, you can’t do that either.”
I said, “Why?”
He said, “Well, I may as well give you the facts. I was trying to be nice to you. So I will give you the facts. I want to read a report to you I got here from Dun & Bradstreet.”
I asked him, “What does that report say to prevent me from leasing the building?” ....
He said, "You got a non-borrowing account at the bank. You got five thousand worth of receivables in your business. You are worth a thousand dollars. How are you going to pay one thousand four hundred thirty dollars a month for rent?”
I says, “I am really shocked at such a kind of report, . . . .”
I says, “I am going to look into this right now.” I says, “I can get that corrected.”
He says, “Forget it. It is all over.”

The defendant contended that the Dun & Bradstreet report, which was mailed on August 14, 1967, could not have been the cause of Prudential’s refusal to lease the Hamlin Avenue property to the plaintiff because the building had been removed from the lease market on August 10, 1967. To support this contention, Mr. Dan Unger testified that he had committed to buy the building on August 10, and he also stated that his decision to purchase was made on the Strength of a concurrent commitment to lease the building by Interstate Photo Supply Company, and that he was therefore advised to remove the building from the lease market. Ranee similarly testified that at the time of the commitment to sell on August 10, the Hamlin Avenue building had simultaneously been removed from the lease market.

However, in a letter to Unger dated August 11, 1967, Ranee wrote with regard to the property that “inasmuch as we have pretty good potential lessees in the building, I think we will wait on final mortgage commitment.” Ranee testified that by “potential lessees” he had meant the actual lessee, Interstate Photo. Unger stated that he could not recall whether “potential lessees” referred to other prospective tenants, and neither Unger nor Ranee knew when the lease with Interstate Photo, who eventually did rent the building, was actually signed.

At the close of all the evidence, the defendant’s motion for a directed verdict was denied, and the jury returned a verdict for the plaintiff. The court initially denied defendant’s motions for judgment notwithstanding the verdict, or in the alternative for a new trial, but upon reconsideration granted the motion for judgment n. o. v., and entered judgment for the defendant.

I.

It is conceded that unless the telephone conversation between Oberman and Ranee was properly before the jury, there would be no evidence that the Dun & Bradstreet report caused Prudential’s refusal to lease the Hamlin Avenue building. The plaintiff claims that the conversation was correctly admitted under the state of mind exception to the hearsay rule. The defendant argues that Ranee was not expressing a state of mind, but that he was remembering a past decision, and defendant points to Ranee’s statement at the end of the conversation with Oberman to “Forget it. It is all over.” as evidence of that fact. The defendant asserts that under Shepard v. United States, 290 U.S. 96, 54 S.Ct. 22, 78 L.Ed. 196 (1933), statements of memory or belief are not includible within the state of mind exception.

Oberman’s account of the telephone conversation with Ranee is hearsay, but under the state of mind exception to the hearsay rule, an out of court declaration of a present existing motive or reason for acting is admissible, even though the declarant is available to testify. Lawlor v. Loewe, 235 U. S. 522, 536, 35 S.Ct. 170, 59 L.Ed. 341 (1915); American Cooperative Serum Ass’n v. Anchor Serum Co., 153 F.2d 907, 912 (7th Cir.), cert. denied, 329 U.S. 721, 67 S.Ct. 57, 91 L.Ed. 625 (1946) ; VI Wigmore on Evidence § 1729 (2) (3d ed. 1940). This exception rests on the rationale that the declarant’s memory of his state of mind, at a time when there is ample opportunity for misrepresentation, is no more likely to be correct than another’s recollection of the declaration. Since evidence of the declarant’s state of mind can only be indicated by the declarant’s conduct or statements, the exception to the hearsay rule provides for their admission. Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285, 12 S.Ct. 909, 36 L.Ed. 706 (1892); VI Wigmore, supra, at § 1714.

The leading case of Shepard v. United States, supra, has helped to define the boundaries of the state of mind exception. In Shepard, the defendant was accused of murdering his wife, and the prosecution introduced the testimony of the nurse that the wife, after her collapse, had told her that “Dr. Shepard has poisoned me.” In holding the testimony inadmissible to show the wife’s state of mind, the court stated that:

Declarations of intention casting light upon the future, have been sharply distinguished from declarations of memory, pointing backwards to the past. .
The testimony now questioned faced backward and not forward.
[I] t spoke to a past act .

Shepard, supra, 290 U.S. at 105-106, 54 S.Ct. at 26.

The statement in Shepard was excluded because the declaration was the result of the memory of past events, and the declaration therefore carried the inference that these events actually occurred. The wife’s recollection of these events which gave rise to the declaration could be plagued by problems of perception and memory, and the inability to test these factors, as is the case with a classic hearsay statement, called for the statement’s exclusion. See Greater N.Y. Live Poultry Chamber of Commerce v. United States, 47 F.2d 156 (2d Cir.), cert. denied, 283 U.S. 837, 51 S.Ct. 486, 75 L.Ed. 1448 (1931); Tribe, Triangulating Hearsay, 87 Harv.L.Rev. 957, 970-71 (1974).

Ranee’s statements, however, do not face backward. For present purposes, it is of no moment whether the facts which gave rise to Ranee’s declaration were true or actually occurred, because the concern here is only with the reason for Ranee’s refusal to lease the Hamlin Avenue property. Thus, there are no problems of memory and perception of the declarant to be tested, and therefore, as in the usual state of mind situation, Oberman’s recollection of the statement is as likely to be correct as Ranee’s recollection.

Furthermore, we do not find Ranee’s comments to “Forget it. It is all over.” to indicate that Ranee was relying on memory to recall only the result of a distant past decision. At the time of the telephone conversation, Ranee was expressing present existing reasons for his refusal to lease the Hamlin Avenue property to Oberman. We conclude, therefore, that Oberman’s testimony falls within the state of mind exception to the hearsay rule, and was properly considered by the jury. Lawlor v. Loewe, supra', American Cooperative Serum Ass’n v. Anchor Serum Co., supra.

II.

The district court concluded, and it is defendant’s position here on appeal, that even if the telephone conversation was properly admitted, the defendant nevertheless was entitled to a judgment n. o. v. The district court found that “the verdict of the jury for the plaintiff on the issue of proximate cause [was] clearly contrary to the manifest weight of the evidence. . . . ”

In granting defendant’s motion, however, the district court utilized the wrong standard. In this circuit in diversity cases the state law standard for judgment n. o. v. is applied. Wie-loch v. Rogers Cartage Co., 290 F.2d 235, 237 (7th Cir. 1961); Etling v. Sander, 447 F.2d 593, 594 (7th Cir. 1971). The most quoted formulation of the proper Illinois standard to be applied, is set forth in Pedrick v. Peoria & E. R.R., 37 Ill.2d 494, 510, 229 N.E.2d 504, 513-514 (1967):

In our judgment verdicts ought to be directed and judgments n. o. v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.

Our inquiry is therefore not directed to whether the jury’s verdict was against the manifest weight of the evidence, but is instead directed to whether, based on the evidence viewed in a light most favorable to the plaintiff, the evidence so overwhelmingly favors the defendant, that no contrary verdict based on that evidence could ever stand. Valdes v. Karoll’s, Inc., 277 F.2d 637 (7th Cir. 1960); Wieloch v. Rogers Cartage Co., supra. We are also mindful that our inquiry is not concerned with the credibility of the evidence because that is a matter for the jury. Grepke v. General Electric Co., 280 F.2d 508, 512 (7th Cir. 1960).

Applying the appropriate standard, we cannot say that the evidence only supports one reasonable conclusion in defendant’s favor. Oberman’s account of the telephone conversation was that Ranee refused to lease the Hamlin Avenue building because of the unfavorable Dun & Bradstreet credit report. Although Ranee and Unger testified that by the time the credit report was mailed the building was not available for lease because it had been removed from the market on August 10, in a letter dated one day later Ranee wrote to Unger that “we have pretty good potential lessees in the building . . . .” It was therefore eminently reasonable for the jury to conclude that despite Ranee’s and Unger’s testimony, the letter indicated that the building had not been removed from the lease market, and that the Dun & Bradstreet report thereby caused the plaintiff’s harm.

The defendant’s reliance on Continental Nut Co. v. Robert L. Berner Co., 393 F.2d 283 (7th Cir.), cert. denied, 393 U.S. 923, 89 S.Ct. 254, 21 L.Ed.2d 259 (1968), where entry of a judgment n. o. v. for the defendant was affirmed, is misplaced because in that case the court found that there was no evidence from which the jury could conclude that an allegedly libelous letter caused the plaintiff any loss in sales. As the above discussion demonstrates, however, there is no equivalent lack of evidence here. We conclude, therefore, that the district court erred in granting the defendant’s motion for judgment n. o. v.

Finally, we note that Fed.R.Civ. P. 50(c)(1) provides that if the motion for judgment notwithstanding the verdict is granted, “the court shall also rule on the motion for a new trial . . . See Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 61 S.Ct. 189, 85 L.Ed. 147 (1940). Although the district court initially denied the defendant’s motions for judgment n. o. v. or in the alternative for a new trial, upon reconsideration the court only granted the judgment n. o. v., and did not rule on the motion for a new trial. It is unclear to us whether the district court intended to vacate the denial of the motion for a new trial and then failed to reconsider that motion, or whether the court intended that the denial stand. In any event, the defendant acquiesced in the trial court’s actions, and here only urges that we affirm the grant of judgment n. o. v. In Vera Cruz v. Chesapeake & O. R.R., 312 F.2d 330, 332 (7th Cir.), cert. denied, 375 U.S. 813, 84 S.Ct. 44, 11 L.Ed.2d 49 (1963), we held that the motion for a new trial is abandoned if not pressed on the trial court after the grant of judgment n. o. v. We therefore need not remand for a ruling on the motion for a new trial. Accordingly, the judgment of the district court is reversed, and remanded with directions to reinstate the jury’s verdict for the plaintiff and to proceed to trial on the remaining issues.

Reversed and remanded.

      . This libel action has been before this court on a prior occasion. Oberman v. Dun & Bradstreet, Inc., 460 F.2d 1381 (7th Cir. 1972). In that opinion we found that there existed a genuine issue of material fact as to whether the allegedly libelous credit report caused “special damages,” and remanded for trial. Id. at 1386.

      . The defendant also relies on proposed Federal Rule of Evidence 803(3), 56 F.R.D. 183, 300, 305 (1972) which codifies the holding of Shepard. That Rule provides in part:
      The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
      (3) Then existing mental, emotional, or physical condition. A statement of the de-clarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed