OPINION ON REHEARING
KALODNER, Circuit Judge.
Did the District Court abuse its discretion in failing to accord a requested hearing to the appellant on his petition for reconsideration of sentence, (1) in the light of the reasons assigned by the Supreme Court of the United States for its affirmance of the judgment of conviction, and (2) the factual allegations of the petition for reconsideration relating thereto?
We are required, on this appeal, to decide this question only, and accordingly [53]*53do not reach other contentions advanced by the appellant and the amici - curiae.1
Discussion of the question stated must be prefaced by this statement of its factual background:
In June 1963, the District Court, to whom the case was tried without a jury, found the appellant Ralph Ginzburg, and three corporations which he controlled, guilty upon 28 counts of an Indictment charging violation of the federal obscenity statute, 18 U.S.C.A. § 1461.2 Counts 1 through 10 of the Indictment charged Ginzburg, and the particular corporate defendant named therein, with using the mails for the delivery of “non-mailable matter”, consisting of promotional advertising literature, informing how and where a designated alleged obscene publication could be obtained. Counts 11 through 28, charged Ginzburg, and the particular corporate defendant named therein, with using the mails for the delivery of a designated “non-mailable” obscene publication. The publications concerned were “The Housewife’s Handbook on Selective Promiscuity” (“Handbook”); “Eros”, a magazine, and “Liaison”, a biweekly newsletter.
Following the District Court’s denial of the defendants’ motions for Arrest of Judgment and, in the alternative, for a new trial, 224 F.Supp. 129 (E.D.Pa. 1963), and its subsequent imposition of a 5-year prison sentence and $28,000 fine as to Ginzburg, and fines aggregating $14,000 imposed on the corporate defendants, the defendants appealed. We affirmed at 338 F.2d 12 (3 Cir. 1964), and the Supreme Court of the United States did likewise at 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31 (1966), rehearing denied, 384 U.S. 934, 86 S.Ct. 1440, 16 L.Ed.2d 536.
Ginzburg, thereafter, filed a petition for reconsideration of sentence in the District Court in which he prayed for (1) vacation, suspension or reduction of his sentence of imprisonment, and (2) a hearing at which he could present evidence in support of the petition. The Government, in its “Response” to the petition, did not deny any of its factual averments, and with respect to the petitioner’s request for a hearing stated “it would seem appropriate that an opportunity to be heard be afforded”, and “ [a] ccordingly, the Government does not oppose the defendant’s request for a hearing on the merits of his petition”. The Government, in its Response, further stated that “it takes no position on that part of the defendant’s motion which pertains to reduction of his sentence”, and “[ijnsofar as defendant’s motion papers request this Court to vacate or suspend his sentence, the Government respectfully urges this Court to deny the petition”.
The District Court subsequently, without hearing, entered an Order denying the petition, and Ginzburg appealed. We affirmed, by a divided court, and thereafter granted rehearing by the court en banc.
[54]*54What has been said brings us to the petition for reconsideration and the contentions with respect to it presented here.
Ginzburg’s petition for reconsideration of sentence may be summarized as follows:
(1) The District Court found him guilty of violating the obscenity statute on its view that Handbook, Eros and Liaison were obscene per se, and its fact-findings that the “defendants” unsuccessfully sought Blue Ball, Pennsylvania and Intercourse, Pennsylvania, mailing addresses, and finally arranged the Middlesex, New Jersey mailing address, “in order that the postmarks on mailed material would further defendants’ general scheme and purpose”.
(2) The Supreme Court of the United States affirmed his conviction “because of the manner in which the publications had been advertised”, and not on the ground that they were obscene per se, and “this basis for the Supreme Court’s decision was new and unprecedented and a departure from pre-existing law, which had looked to the publications themselves in order to determine obscenity”.
(3) Ginzburg had been advised by his trial counsel that the use of the mails for his publications “was lawful”, and “[b]ecause of the state of the law as it existed prior to the Supreme Court’s decision”, his counsel did not consider the mail applications to the various post offices “to be material”, and for that reason did not have Ginzburg testify to the fact that he “had absolutely no part whatsoever and no mens rea in those Post Office applications”.
(4) Ginzburg is “a first offender”; he “always has been a law-abiding hardworking member of the community”; he supports his wife and three children, widowed mother and blind sister; his [then] 12-year old daughter has been under psychiatric care since shortly after his sentencing and his imprisonment “will have a serious adverse effect on the child’s mental health”; “he is a responsible and respected member of the publishing profession”; “[h]e does not intend to and will not republish or redistribute the material .which led to his conviction or any material of the same sort”; and, finally, he will adduce testimony in support of his factual allegations at a hearing on his petition for reconsideration of sentence.
On this appeal, Ginzburg contends that the District Court abused its discretion (1) in denying him a hearing on his petition for reconsideration; (2) in “arbitrarily and without reason” refusing to change his sentence; and (3) in refusing to make available to him the contents of the pre-sentence report received by the District Court prior to the imposition of his sentence.
The Government, in reply, urges that the District Court did not abuse its discretion in denying a hearing on the reconsideration petition and in denying the petition on its merits; and, further, that the District Court did not, in refusing inspection of the pre-sentence report, abuse the limits of its permissible discretion under Rule 32(c) of the Federal Rules of Criminal Procedure, assuming the rule to be applicable to a reconsideration of sentence proceeding.
As earlier stated, we will limit our present disposition to the single question as to whether the District Court abused its discretion in failing to accord the requested hearing to Ginzburg on his petition for reconsideration of sentence in the light of the prevailing circumstances.
These circumstances may be summarized as follows:
Prior to Ginzburg’s conviction, the critical question in prosecutions under the federal obscenity statute centered on the published material itself — was it obscene per se ? 3 Manual Enterprise; [55]*55Inc. v.
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OPINION ON REHEARING
KALODNER, Circuit Judge.
Did the District Court abuse its discretion in failing to accord a requested hearing to the appellant on his petition for reconsideration of sentence, (1) in the light of the reasons assigned by the Supreme Court of the United States for its affirmance of the judgment of conviction, and (2) the factual allegations of the petition for reconsideration relating thereto?
We are required, on this appeal, to decide this question only, and accordingly [53]*53do not reach other contentions advanced by the appellant and the amici - curiae.1
Discussion of the question stated must be prefaced by this statement of its factual background:
In June 1963, the District Court, to whom the case was tried without a jury, found the appellant Ralph Ginzburg, and three corporations which he controlled, guilty upon 28 counts of an Indictment charging violation of the federal obscenity statute, 18 U.S.C.A. § 1461.2 Counts 1 through 10 of the Indictment charged Ginzburg, and the particular corporate defendant named therein, with using the mails for the delivery of “non-mailable matter”, consisting of promotional advertising literature, informing how and where a designated alleged obscene publication could be obtained. Counts 11 through 28, charged Ginzburg, and the particular corporate defendant named therein, with using the mails for the delivery of a designated “non-mailable” obscene publication. The publications concerned were “The Housewife’s Handbook on Selective Promiscuity” (“Handbook”); “Eros”, a magazine, and “Liaison”, a biweekly newsletter.
Following the District Court’s denial of the defendants’ motions for Arrest of Judgment and, in the alternative, for a new trial, 224 F.Supp. 129 (E.D.Pa. 1963), and its subsequent imposition of a 5-year prison sentence and $28,000 fine as to Ginzburg, and fines aggregating $14,000 imposed on the corporate defendants, the defendants appealed. We affirmed at 338 F.2d 12 (3 Cir. 1964), and the Supreme Court of the United States did likewise at 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31 (1966), rehearing denied, 384 U.S. 934, 86 S.Ct. 1440, 16 L.Ed.2d 536.
Ginzburg, thereafter, filed a petition for reconsideration of sentence in the District Court in which he prayed for (1) vacation, suspension or reduction of his sentence of imprisonment, and (2) a hearing at which he could present evidence in support of the petition. The Government, in its “Response” to the petition, did not deny any of its factual averments, and with respect to the petitioner’s request for a hearing stated “it would seem appropriate that an opportunity to be heard be afforded”, and “ [a] ccordingly, the Government does not oppose the defendant’s request for a hearing on the merits of his petition”. The Government, in its Response, further stated that “it takes no position on that part of the defendant’s motion which pertains to reduction of his sentence”, and “[ijnsofar as defendant’s motion papers request this Court to vacate or suspend his sentence, the Government respectfully urges this Court to deny the petition”.
The District Court subsequently, without hearing, entered an Order denying the petition, and Ginzburg appealed. We affirmed, by a divided court, and thereafter granted rehearing by the court en banc.
[54]*54What has been said brings us to the petition for reconsideration and the contentions with respect to it presented here.
Ginzburg’s petition for reconsideration of sentence may be summarized as follows:
(1) The District Court found him guilty of violating the obscenity statute on its view that Handbook, Eros and Liaison were obscene per se, and its fact-findings that the “defendants” unsuccessfully sought Blue Ball, Pennsylvania and Intercourse, Pennsylvania, mailing addresses, and finally arranged the Middlesex, New Jersey mailing address, “in order that the postmarks on mailed material would further defendants’ general scheme and purpose”.
(2) The Supreme Court of the United States affirmed his conviction “because of the manner in which the publications had been advertised”, and not on the ground that they were obscene per se, and “this basis for the Supreme Court’s decision was new and unprecedented and a departure from pre-existing law, which had looked to the publications themselves in order to determine obscenity”.
(3) Ginzburg had been advised by his trial counsel that the use of the mails for his publications “was lawful”, and “[b]ecause of the state of the law as it existed prior to the Supreme Court’s decision”, his counsel did not consider the mail applications to the various post offices “to be material”, and for that reason did not have Ginzburg testify to the fact that he “had absolutely no part whatsoever and no mens rea in those Post Office applications”.
(4) Ginzburg is “a first offender”; he “always has been a law-abiding hardworking member of the community”; he supports his wife and three children, widowed mother and blind sister; his [then] 12-year old daughter has been under psychiatric care since shortly after his sentencing and his imprisonment “will have a serious adverse effect on the child’s mental health”; “he is a responsible and respected member of the publishing profession”; “[h]e does not intend to and will not republish or redistribute the material .which led to his conviction or any material of the same sort”; and, finally, he will adduce testimony in support of his factual allegations at a hearing on his petition for reconsideration of sentence.
On this appeal, Ginzburg contends that the District Court abused its discretion (1) in denying him a hearing on his petition for reconsideration; (2) in “arbitrarily and without reason” refusing to change his sentence; and (3) in refusing to make available to him the contents of the pre-sentence report received by the District Court prior to the imposition of his sentence.
The Government, in reply, urges that the District Court did not abuse its discretion in denying a hearing on the reconsideration petition and in denying the petition on its merits; and, further, that the District Court did not, in refusing inspection of the pre-sentence report, abuse the limits of its permissible discretion under Rule 32(c) of the Federal Rules of Criminal Procedure, assuming the rule to be applicable to a reconsideration of sentence proceeding.
As earlier stated, we will limit our present disposition to the single question as to whether the District Court abused its discretion in failing to accord the requested hearing to Ginzburg on his petition for reconsideration of sentence in the light of the prevailing circumstances.
These circumstances may be summarized as follows:
Prior to Ginzburg’s conviction, the critical question in prosecutions under the federal obscenity statute centered on the published material itself — was it obscene per se ? 3 Manual Enterprise; [55]*55Inc. v. Day, 370 U.S. 478, 489, 82 S.Ct. 1432, 8 L.Ed.2d 639 (1962); Roth v. United States, 354 U.S. 476, 488-489, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957).
In its Opinion in the instant case, the Supreme Court added a new ingredient to its previously declared “obscene per se” testing formula — an ingredient which, acting as a catalyst, transforms published material which standing alone is not obscene per se, into obscene matter. That ingredient is “pandering”— exploiting a publication, via promotional advertising or literature which represents it “as erotically arousing”, and places “sole emphasis * * * on the sexually provocative aspects” of the publication.
The Supreme Court epitomized this ingredient in its Opinion as follows (383 U.S. pp. 475-476, 86 S.Ct. p. 950):
“Where an exploitation of interests in titillation by pornography is shown with respect to material lending itself to such exploitation through pervasive treatment or description of sexual matters, such evidence may support the determination that the material is obscene even though in other contexts the material would escape such condemnation”.
It must be noted on the score of the stated obscenity-testing formula that the Supreme Court expressed the view that it was merely an elaboration of the prior “obscenity per se” test.
It did so in this prefacing statement (p. 475, 86 S.Ct. p. 950):
“It is important to stress that this analysis simply elaborates the test by which the obscenity vel non of the material must be judged”. (Emphasis supplied.)
The circumstance that Ginzburg’s conviction was affirmed by application of an elaborated legal standard or test which had not been announced by the Supreme Court of the United States at the time of his condemned conduct, or trial, is relevant to the issue of the District Court’s denial of his application for a hearing on his petition for reconsideration of sentence in these respects:
Ginzburg did not know, nor could he have known, that at the time he published and exploited Handbook, Eros and Liaison, that the criteria of obscenity included “pandering”, and methods of promotional exploitation of a publication proscribed by the elaborated obscenity testing formula. Otherwise stated, assuming that Ginzburg personally participated in the condemned activity, he did not know, nor did he have reason to know, that he was violating the obscenity statute. The stated factor merited its presentation to the District Court at a hearing on Ginzburg’s petition for reconsideration.
Ginzburg’s application to adduce testimony at the sought hearing that he did not take part in the attempts to obtain mailing privileges at Intercourse, Pennsylvania, and Blue Ball, Pennsylvania, or in the obtaining of such privileges at Middlesex, New Jersey, and that he had not adduced such testimony at his trial because his then counsel did not consider the applications to the post offices to be material under the then state of the law, merited hearing and consideration in connection with the sentence reconsideration petition.
Ginzburg’s application to present testimony as to his character and prior good conduct record as a law-abiding citizen; the family hardship impacts of his sentence ; his commitment to cease the publication of material of the kind which led to his conviction; and his commitment to lead a life free of any criminal conduct, presents considerations significant to the sentencing process, especially when viewed against the background of his 5-year prison sentence. For some inexplicable reason, Ginzburg’s trial counsel did not see fit to advise submission of the now proffered testimony prior to the imposition of his sentence, thereby de[56]*56priving both Ginzburg and the sentencing judge of the consideration of factors which have traditionally been deemed to be critical guide-lines in the sentencing process, and as to which the concept of waiver should not apply. We can come to no other conclusion than that the District Court should have granted Ginz-burg’s request for a hearing at which he could adduce the aforestated proffered testimony.
For the reasons stated we are of the opinion that the District Court abused its discretion in failing to accord Ginz-burg’s requested hearing on his petition for reconsideration of sentence in the light of the considerations earlier detailed.
Further, we feel compelled to express our view, that should Ginzburg’s testimony at a hearing on his petition establish that he did not participate in the aura producing techniques condemned by the Supreme Court, viz., the mail privilege solicitations at Intercourse, Pennsylvania, Blue Ball, Pennsylvania, and Middlesex, New Jersey, and the good character and hardship aspects of his petition, that it would warrant a significant change by the District Court in the nature and character of its present sentence.
The cause will be remanded to the District Court with directions to grant a hearing on Ginzburg’s petition for reconsideration of sentence and to proceed in accordance with this opinion.
Chief Judge HASTIE joins in this opinion and also agrees that the concurring opinions state adequate reasons for vacating the appellant’s sentence.