author: AINSWORTH, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Louis B. PACHECO and John N. Fountain, Jr., Defendants-Appellants.
    No. 72-3355.
    United States Court of Appeals, Fifth Circuit.
    Feb. 8, 1974.
    Rehearing and Rehearing En Banc Denied March 7, 1974.

      Arnold Levine, Tampa, Fla., for defendants-appellants.
    John L. Briggs, U. S. Atty., Jacksonville, Fla., Bernard H. Dempsey, Jr., Claude H. Tison, Jr., Asst. U. S. Attys.. Tampa, Fla., for plaintiff-appellee.
    Before GEWIN, AINSWORTH and MORGAN, Circuit Judges.
   AINSWORTH, Circuit Judge:

Appellants Louis B. Pacheco and John N. Fountain, Jr., were indicted, along with fifty-eight other persons, in a two-count indictment charging them with operation of an illegal gambling business, in violation of 18 U.S.C. §§ 1955 and 2, and with conspiracy to operate an illegal gambling business, in violation of 18 U.S.C. § 371. All those indicted were allegedly participants in the same illegal gambling organization involving bookmaking and numbers operations in Florida. By the date set for trial, fifty-two of the defendants entered pleas of guilty to one or both counts, and only four defendants were left for trial. After a two-week jury trial, verdicts of guilty on both counts were returned as to three of the defendants, including appellants here. The fourth defendant was found guilty on count II but was acquitted on the conspiracy charge contained in count I. Appellant Pacheco was placed on a three-year probation, and appellant Fountain was sentenced to six months in jail plus a five-year probation. Appellants do not contest the sufficiency of the evidence presented at trial to support their convictions; rather, they raise several issues concerning the trial court’s rulings on certain motions and on particular matters of evidence. After careful consideration of their assertions of error, we affirm appellants’ convictions.

I

For federal jurisdiction to exist over the operation of an illegal gambling business, in violation of 18 U.S.C. § 1955, it is necessary to show, inter alia, that the business “involve [d] five or more persons” in its conduct, financing, management, supervision, direction, or ownership. 18 U.S.C. § 1955(b) (1) (ii). Because of this jurisdictional requirement, appellants, relying on Wharton s rule, see page 558, infra, contend that it was improper to charge them with both the substantive offense of operating an illegal gambling business and a conspiracy to commit that offense; and that the trial court, therefore, erred in denying their motions to dismiss count I of the indictment, which charged a violation of 18 U.S.C.. § 371. While Wharton’s rule, properly applied, may occupy a legitimate place in the criminal law, it would be inappropriate to apply it in the present situation.

It is fundamental that “the commission of the substantive offense and a conspiracy to commit it are separate and distinct offenses”, Callanan v. United States, 364 U.S. 587, 593, 81 S.Ct. 321, 325, 5 L.Ed.2d 312 (1961); Pinkerton v. United States, 328 U.S. 640, 643, 66 S.Ct. 1180, 1182, 90 L.Ed. 1489 (1946), and a person may ordinarily be convicted of and sentenced for both. Pinkerton v. United States, 328 U.S. at 643, 66 S. Ct. at 1182. Conspiracy is a separate offense on the theory that collective criminal agreement presents greater antisocial potentialities than criminal activity pursued by individuals. See, e. g., W. LaFave & A. Scott, Jr., Criminal Law 459-60 (1972); Developments in the Law — Criminal Conspiracy, 72 Harv.L.Rev. 920, 923-24 (1959). “Concerted action both increases the likelihood that the criminal object will be successfully attained and decreases the probability that the individuals involved will depart from their path of eriminality.” Callanan v. United States, 364 U.S. at 593, 81 S.Ct. at 325.

Wharton’s rule affords a narrowly limited exception to the principle that conspiracy, as well as the substantive offense, may be prosecuted. That rule, as stated by the commentator whose name it bears, provides that “when to the idea of an offense plurality of agents is logically necessary, conspiracy, which assumes the voluntary accession of a person to a crime of such a nature that it is aggravated by a plurality of agents, cannot be maintained.” 2 F. Wharton, Criminal Law § 1604, at 1862 (12th ed. 1932). The classic situations in which the rule is said to apply are dueling, bigamy, adultery, and incest. Id. The apparent rationale of the rule is that it is grossly unjust to punish two parties for the commission of a crime and for combining to commit the crime when the combination is an inherent element of the substantive offense. See R. Anderson, 1 Wharton’s Criminal Law and Procedure § 89 (1957); Developments in the Law — Criminal Conspiracy, supra, at 953-56. In the case law, the rule has been applied almost exclusively to instances in which the object of the alleged conspiracy was a two-party crime, such as the giving and receiving of bribes, United States v. Dietrich, 126 F. 664 (C.C.D.Neb.1904); People v. Wet-tengel, 98 Colo. 193, 58 P.2d 279 (1935), or the buying and selling of contraband goods, United States v. Katz, 271 U.S. 354, 355, 46 S.Ct. 513, 70 L.Ed. 986 (1926) (dictum). The rule has been held not to apply when the number of conspirators exceeds the number of participants essential to the contemplated crime. See, e. g., United States v. Ian-nelli, 3 Cir., 1973, 477 F.2d 999, 1002 (18 U.S.C. § 1955); United States v. Becker, 2 Cir., 1972, 461 F.2d 230, 234 (18 U.S.C. § 1955); Baker v. United States, 9 Cir., 1968, 393 F.2d 604, 610, cert. denied, 393 U.S. 836, 89 S.Ct. 110, 21 L.Ed.2d 106; Old Monastery Co. v. United States, 4 Cir., 1945, 147 F.2d 905, 907-908, cert. denied, 326 U.S. 734, 66 S.Ct. 44, 90 L.Ed. 437.

In asking us to apply Wharton’s rule to the section 1955 situation, appellants misconceive the import of that section’s jurisdictional requirement that five or more persons be involved in the illegal gambling business. Such jurisdictional requirements are unrelated to the criminal character of the conduct and should be separately treated. See, e. g., United States v. Blassingame, 2 Cir., 1970, 427 F.2d 329, 330, cert. denied, 402 U.S. 945, 91 S.Ct. 1629, 29 L.Ed.2d 114 (1971); Overton v. United States, 5 Cir., 1968, 405 F.2d 168, 169; Pipes v. United States, 5 Cir., 1968, 399 F.2d 471, 472, cert. denied, 394 U.S. 934, 89 S.Ct. 1207, 22 L.Ed.2d 464 (1969); Pilgrim v. United States, 5 Cir., 1959, 266 F.2d 486, 488.

In enacting the Organized Crime Control Act of 1970, of which section 1955 is a part, Congress directed its attention to large-scale, syndicated gambling because it was thought that “organized crime derives a major portion of its power through money obtained from such illegal endeavors as [inter alia] syndicated gambling . ... ” 1970 U.S.Code Cong. & Admin.News p. 1073. As its jurisdictional basis for making organized gambling prosecutable in a federal court, Congress relied on its power to regulate interstate commerce. Section 1955 was drafted to prohibit only those gambling businesses that reach a size and scope certain to have significant interstate impact. See United States v. Harris, 5 Cir., 1972, 460 F. 2d 1041, cert. denied, 409 U.S. 877, 93 S.Ct. 128, 34 L.Ed.2d 130. The section contains a jurisdictional statement — separate from the statement of prohibited conduct — that defines “illegal gambling business” as a business that involves five or more persons and that either is in continuous operation for more than thirty days or has a gross revenue of $2,000 in any single day. 18 U.S.C. § 1955(b) (1). Through this jurisdictional statement, Congress sought to confine federal attention to large-scale organized gambling, which clearly has direct effects on interstate commerce. It is apparent, therefore, that participation by a group of persons was included as a jurisdictional element in section 1955 for reasons wholly separate from those that explain the presence of concerted activity as a substantive element in the traditional Wharton’s rule crimes.

Section 1955 left the states with control of enforcement efforts against smaller gambling operations that did not meet the minimum jurisdictional requirements, though such businesses might be identical to the others in every respect except size: “The intent of section 1511 and section 1955, below, is not to bring all illegal gambling activity within the control of the Federal Government, but to deal only with illegal gambling activities of major proportions.” 8Thus, in its section 1955 jurisdictional statement, Congress was making no distinctions between the conduct prohibited by section 1955 and that conduct not within its scope. The activity proscribed by section 1955 is not a unique offense distinguishable in its substantive elements from the crime of operating an illegal gambling business involving less than five persons — or for that matter, involving one person.

Wharton’s rule is applicable only when more than one party is necessary to perform the basic crime. It prevents prosecution for conspiracy only where the proscribed type of conduct cannot take place without such concert of action. The basic conduct prohibited by section 1955, however — the operation of an illegal gambling business — does not require concert of action. It is not, therefore, a proper subject for the application of Wharton’s rule. The trial court properly denied appellants’ motions to dismiss the conspiracy count of the indictment. See United States v. Bobo, 4 Cir., 1973, 477 F.2d 974, 985-987; Note, Wharton’s Rule and Conspiracy to Operate an Illegal Gambling Business, 30 Wash. & Lee L.Rev. 613 (1973). See also United States v. Iannelli, 3 Cir., 1973, 477 F.2d 999, 1002; United States v. Becker, 2 Cir., 1972, 461 F.2d 230, 234.

II

Appellants next contend that the trial court erred in denying' their motions for severance of the conspiracy count and the substantive count or for an election of counts on which trial would proceed. Having disposed of their contention, supra, that the two counts charged the same offense, their further claim is not and could not be that there was a mis-joinder of counts in the indictment such that relief under Rule 8 of the Federal Rules of Criminal Procedure would be appropriate. Rather, appellants contend that the joint trial of the counts confused the jury and so prejudiced appellants that they should have been granted relief under Rule 14 of the Federal Rules of Criminal Procedure. We do not agree. ■

Rule, 14 provides that, inter alia, an election of counts may be ordered or separate trials granted if either the Government or the defendant can show that prejudice would result from a joinder of offenses or of defendants for trial. The boundaries of Rule 14 were recently delineated by this Court in Tillman v. United States, 5 Cir., 1969, 406 F.2d 930, 934-935, vacated as to one defendant on other grounds, 395 U.S. 830, 89 S.Ct. 2143, 23 L.Ed.2d 742:

The existence of prejudice, in large measure, depends upon the facts and circumstances of each case, Flores v. United States, 5 Cir., 1967, 379 F.2d 905, 909; Blachly v. United States, 5 Cir., 1967, 380 F.2d 665, 675; Peterson v. United States, 5 Cir., 1965, 344 F.2d 419, 422, and it is axiomatic that the granting of a severance is within the discretion of the trial judge. Smith v. United States, 5 Cir., 1967, 385 F.2d 34, 37. The burden of demonstrating prejudice is a difficult one, and the ruling of the trial judge will rarely be disturbed on review. 8 Moore, Federal Practice ¶ 14.02 [1], p. 14-3 (2d ed. 1968). The defendant must show something more than the fact that “a separate trial might offer him a better chance of acquittal.” Id. at ¶ 1404 [1], pp. 14-10 — 14-11, citing Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967); Robinson v. United States, 1954, 93 U.S.App.D.C. 347, 210 F.2d 29. See also Johnson v. United States, 8 Cir., 1966, 356 F.2d 680; Butler v. United States, 8 Cir., 1963, 317 F.2d 249; Smith v. United States, 1950, 86 U.S.App.D.C. 195, 180 F.2d 775. [Footnote omitted.]

See also United States v. DeSapio, 2 Cir., 1970, 435 F.2d 272, 280, cert. denied, 402 U.S. 999, 91 S.Ct. 2170, 29 L. Ed.2d 166 (1971).

The showing of prejudice is, we think, particularly difficult in the situation before us, in which the counts joined charge a substantive offense and a conspiracy to commit that offense. See, e. g., James v. United States, 5 Cir., 1969, 416 F.2d 467, 474, cert. denied, 397 U.S. 907, 90 S.Ct. 902, 25 L.Ed.2d 87 (1970); Milam v. United States, 5 Cir., 1963, 322 F.2d 104, 110, cert. denied, 377 U.S. 911, 84 S.Ct. 1174, 12 L.Ed.2d 181 (1964); United States v. Branan, 6 Cir., 1972, 457 F.2d 1062, 1066. The relationship between the two counts is quite apparent, and the evidence required to establish the substantive offense is included, to a large extent, in the evidence necessary to establish the conspiracy count. We cannot say that the trial judge abused his discretion in denying appellants’ motion for severance or election. See, e. g., West v. United States, 5 Cir., 1962, 311 F.2d 69, 70; United States v. Friedman, 9 Cir., 1971, 445 F.2d 1076, 1081-1082, cert. denied, 404 U. S. 958, 92 S.Ct. 326, 30 L.Ed.2d 275; United States v. Barrow, 3 Cir., 1966, 363 F.2d 62, 67, cert. denied, 385 U.S. 1001, 87 S.Ct. 703, 17 L.Ed.2d 541 (1967); Allen v. United States, 7 Cir., 1924, 4 F.2d 688, 698-699, cert. denied, 267 U.S. 597, 45 S.Ct. 352, 69 L.Ed. 806 (1925).

Ill

The evidence for the case against the sixty original defendants, including appellants, was developed in large measure by the Florida Department of Law Enforcement (FDLE) prior to the entry of the United States into the investigation and prosecution. The major portion of the evidence consisted of conversations intercepted by FDLE agents in a series of wiretaps of the telephones of various defendants. In each instance, the intercept was instituted pursuant to an order issued by Justice James C. Adkins of the Florida Supreme Court, upon application authorized by the Governor of Florida, Reuben Askew. The last intercept was that on the telephone of William Fox [hereinafter referred to as “Fox tap”]. It was instituted at approximately the same time the United States Attorney agreed to take over the prosecution of the case.

In the court below, appellants moved to suppress the illegal wiretaps, but no relief was granted. In this Court, appellants make five arguments against the legal validity of the interceptions. We can find, however, no infirmity in the admission in evidence of the wiretaps.

Section 2516(2) of Title 18, United States Code, permits the “principal prosecuting attorney of any- State, or the principal prosecuting attorney of any political subdivision thereof, if such attorney is authorized by a [state] statute,” to apply “to a State court judge of competent jurisdiction” for an order permitting a wire interception. No interception order can be issued by a state court judge unless the wiretap may provide evidence of an offense specified in section 2516(2): “murder, kidnapping, gambling [inter alia] . . . . ” The corresponding section of Florida’s wiretap statute is modeled after, and largely adopts the exact phrasing of, section 2516(2).

Appellants’ first three contentions with respect to the admission of the intercepts relate to these excerpted portions of the federal wiretap statute. Their fourth argument in this regard involves the investigative procedures attempted prior to the wiretaps; and their final contention challenges the constitutional validity of the federal statute pursuant to which the intercepts were authorized.

A

Florida has chosen to implement the requirement in the federal statute that the principal prosecuting attorney make application for the wiretap order, by designating, among others, the Governor of the state to authorize initial applications for interceptions. See Fla.Stat. § 943.07, F.S.A., reproduced at note 13 supra. Appellants contend, however, that the chief executive officer of the state is not within the contemplation of the federal statute authorizing the “principal prosecuting attorney” of the state to make initial approval.

The purpose of including this requirement in the federal statute was not to designate a particular officer by name or title but to ensure the centralization of policy decisions of this type at the highest practicable levels, preferably on a statewide basis. In the words of the Senate report explaining section 2516(2):

In most States the principal prosecuting attorney of the State would be the attorney general. The important question, however, is not name but function. The intent of the proposed provision is to provide for the centralization of policy relating to statewide law enforcement in the area of the use of electronic surveillance in the chief prosecuting officer of the State. Who that officer would be would be a question of State law. Where no such office exists, policymaking would not be possible on a statewide basis; it would have to move down to the next level of government.

Senate Report No. 1097, 1968 U.S.Code Cong. & Admin.News pp. 2112, 2187. Appellants are in the position of complaining that they received too much protection rather than too little, because it was the governor, not the attorney general or state attorney, who authorized the wiretaps involved here. We reject their argument. The determination that is to be made by the state official designated in accordance with the federal statute is whether a particular proposed use of monitoring techniques is consistent with the state’s overall policy in this area. In such matters of policy, the governor represents the state and is superior to all prosecuting attorneys of the state. Florida’s designation of its governor to determine the propriety of applications for federal interceptions comports fully with the federal requirements and ensures the safeguards for which the' statute is designed.

B

Appellants next assert that the wire intercepts are invalid because Justice Adkins, who authorized them, is not a “State court judge of competent jurisdiction,” as required by statute. 18 U. S.C. § 2510(9)(b) defines a “State court judge of competent jurisdiction” as “a judge of any court of general criminal jurisdiction of a State who is authorized by a statute of that State to enter orders authorizing interceptions of wire or oral communications.” By state statute, Florida has defined “judge of competent jurisdiction” as a “justice of the supreme court, judge of a district court of appeal, circuit judge, or judge of any court of record having felony jurisdiction of the state . . . .” Fla.Stat. § 934.02(8), F.S.A. Appellants suggest, however, that under the Florida Constitution, the Florida Supreme Court has no general criminal jurisdiction in criminal matters and that it can act only in an appellate capacity and only with respect to certain criminal cases. They contend that the language of the federal statute is meant to encompass only judges of circuit courts and criminal courts of record in Florida and that, therefore, a justice of the Florida Supreme Court, such as Justice Adkins, has general criminal jurisdiction only when assigned by the chief justice of the state to sit as a circuit judge. There is no merit to these contentions.

The Florida Constitution empowers the chief justice to assign justices and judges of the state courts to judicial service in any other state court of the same or lesser jurisdiction. Fla.Const. art. V, § 2, F.S.A. It is clear, therefore, that the constitution, not the particular designation of assignment by the chief justice, confers general criminal jurisdiction on the justices of the supreme court.

We note, moreover, that with respect to section 2510(9) (b) Senate Report No. 1097 points out that the former practice of allowing United States Commissioners and city mayors to issue search warrants was “too permissive for the interception of wire or oral communications.” 1968 U.S.Code Cong. & Admin.News p. 2179. In acting on its concern with guaranteeing “responsible judicial participation in the decision to use these techniques”, id., Congress obviously did not intend to specify the particular state courts that could issue wiretap orders'; instead, it described the quality of public officials who should pass upon such matters. Florida has responded most appropriately to the wishes of the Congress by including the justices of the Florida Supreme Court among those judicial officers authorized to issue wiretap orders.

C

As previously noted, “gambling” is one of the offenses for which an interception order can be issued by a state court judge. The applications and orders issued in this case all recite that the proposed intercepts may provide evidence of the violation of Florida Statutes § 849.09, F.S.A., which makes it unlawful to conduct a lottery. Appellants argue that conducting a lottery is not gambling within the meaning of the Florida wiretap statute. They insist that the only Florida statutes dealing with gambling are section 849.08, which penalizes anyone who plays “in any game at cards, keno, roulette, faro or other game of chance,” and section 849.-14, which punishes anyone who engages in sports wagering. We reject appellants’ assertions.

Chapter 849 of the Florida Statutes, F.S.A., in which sections 849.-08 and 849.14 are contained, is styled “Gambling” and treats, inter alia, lottery, keeping of gambling houses, bookmaking, and manufacturing of gambling devices. Nowhere in the chapter is there a definition of gambling or the offense of gambling. We think it clear, therefore, that “gambling” is used in its generic sense and comprehends any otherwise qualifying activity — including conducting a lottery — described in any of the various portions of Chapter 849. See Creash v. State, 131 Fla. 111, 179 So. 149 (1938).

Appellants make one additional argument with respect to the offenses charged in the indictment. 18 U.S.C. § 2516(2) permits states to use wiretap investigation only if the interception may provide evidence of one of the enumerated offenses and the offense is punishable by imprisonment for more than one year. Appellants point out that not all the offenses charged in the indictment carry a sentence of more than one year and claim that, therefore, the interceptions are invalid. We disagree. Additional offenses discovered during the course of a proper intercept may be prosecuted regardless of the nature of the offense or the prescribed punishment.

D

Section 2518(1) (c) of Title 18, United States Code, requires that each application for an intercept order include “a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous . . . . ” Appellants contend that the trial court erred in admitting the results of the Fox tap in evidence because the prosecutor intentionally suppressed information required by section 2518(1) (c) to be included in the application for the wire interception. We, however, can find no such error.

One of the principal witnesses for the United States at the trial was Mrs. Beverly Roberts Matthews, who, for a number of years prior to 1971, had been closely associated with Harlan Alexander Blackburn, a major defendant in this case. Mrs. Matthews had previously been convicted of perjury as a result of certain testimony given in an effort to shield Blackburn in another prosecution. United States v. Roberts, 5 Cir., 1971, 455 F.2d 930. While the appeal from her perjury conviction was pending, Mrs. Matthews began supplying information about Blackburn’s operation on a confidential basis to the Federal Bureau of Investigation. Appellants claim that her availability as a witness should have been disclosed in the application for the Fox tap because this would have shown that normal investigative techniques were sufficient to develop the case.

We are satisfied that there is no basis for appellants’ argument that Mrs. Matthews’ identity or her information should have been supplied in the FDLE’s application for the Fox tap. Mrs. Matthews’ identity and information were known only to the United States, which was unaware of the Fox tap application until after it had been made and approved. As the district court pointed out:

For, had it been known to those involved in the organized criminal activity that she had been “talking” to the F.B.I., her life would have been seriously endangered. . . . Her situation was so sensitive that it would have been unconscionable for [the FBI agent] to have disclosed her name and the information she was giving to the F.D.L.E. or anyone else during the pendency of the monitoring in question.

United States v. Lanza, M.D.Fla., 1973, 356 F.Supp. 27, 29.

Prior to the Fox tap, moreover, there was no reason to suppose that Mrs. Matthews’ information was sufficient for purposes of complete investigation of this case. In no realistic sense could it be said that Mrs. Matthews had information that would eliminate, or, in some instances, even lessen, the need for the Fox tap. Without the Fox tap, there would have been at least seven defendants who would not have appeared in the case at all, and the sole evidence as to several others would have been the uncorroborated testimony of an accomplice previously convicted of perjury. Finally, we note that the purpose of the requirement in section 2518(1) (c) is not to foreclose electronic surveillance until every other imaginable method of investigation has been unsuccessfully attempted, but simply to inform the issuing judge of the difficulties involved in the use of conventional techniques. United States v. King, S.D.Cal., 1971 335 F.Supp. 523, 535; Senate Rep. No. 1097, 1968 U.S.Code Cong. & Admin. News pp. 2112, 2190.

E

Appellants make one final challenge to the admission in evidence of all the wiretaps by claiming that section 1955 is unconstitutional and that, therefore, no interception to detect a violation of the statute could lawfully be authorized pursuant to section 2516. This Court has previously considered and rejected this argument in United States v. Harris, 5 Cir., 1972, 460 F.2d 1041, 1043-1049, cert. denied, 409 U.S. 877, 93 S.Ct. 128, 34 L.Ed.2d 130, in which the challenge to the validity of the federal wiretap statute was made directly. There we held that section 1955 is a valid and constitutional exercise of congressional power over interstate commerce. Accord, United States v. Becker, 2 Cir., 1972, 461 F.2d 230, 233-234; Schneider v. United States, 8 Cir., 1972, 459 F.2d 540, 541-542, cert. denied, 409 U.S. 877, 93 S.Ct. 129, 34 L.Ed.2d 131. See also United States v. Thaggard, 5 Cir., 1973, 477 F.2d 626, 630; United States v. Palmer, 6 Cir., 1972, 465 F.2d 697, 699, cert. denied, 409 U.S. 874, 93 S.Ct. 119, 34 L.Ed.2d 126.

IV

Mrs. Matthews furnished information to an FBI agent on a score or more occasions, and the information she supplied was recorded on the standard FBI interview report, Form FD 302. The interview reports relating to her trial testimony comprised almost 100 pages, all of which were furnished to defense counsel before Mrs. Matthews testified.

Two or three of the interviews with Mrs. Matthews were so lengthy and comprehensive that the interviewer, to ensure completeness and accuracy, recorded the conversations on tape and later made notes from the original recordings. From the tapes and these original notes, he then dictated notes that were later transcribed on the interview reports ultimately furnished to defense counsel. The tapes were then erased. Appellants urge that the Government’s failure to retain the original tapes, or to prepare transcripts of them, for production to the defense at trial as Jencks Act statements constitutes a violation of the Jencks Act, 18 U.S.C. § 3500. Appellants contend that the trial court therefore erred in denying their motion to strike Mrs. Matthews’ testimony. We find no substance in their claim.

Nothing in the Jencks Act requires that notes made in the course of an investigation be preserved after the notes have served their purpose of assisting in the preparation of interview reports. United States v. Jones, 2 Cir., 1966, 360 F.2d 92, 95, cert. denied, 385 U.S. 1012, 87 S.Ct. 721, 17 L.Ed.2d 549 (1967); United States v. Hoffa, 6 Cir., 1965, 349 F.2d 20, 47-48, aff’d on other grounds, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966); Alexander v. United States, 1964, 118 U.S.App.D.C. 406, 336 F.2d 910, cert. denied, 379 U.S. 935, 85 S.Ct. 336, 13 L.Ed.2d 346. Similarly, the tape recordings made in this case were clearly not within the scope of the Jencks Act. In fact, the Form FD 302 interview reports did not become “statements” subject to production under the Act until Mrs. Matthews examined their content and confirmed that they were accurate. See Campbell v. United States, 373 U.S. 487, 83 S.Ct. 1356, 10 L.Ed.2d 501 (1963); Palermo v. United States, 360 U.S. 343, 350-353, 79 S.Ct. 1217, 1223-1225, 3 L.Ed.2d 1287. The procedures followed in this case prior to that time assured that the reports turned over to the defense were more complete and accurate than they otherwise might have been. See Rosenberg v. United States, 360 U.S. 367, 370-371, 79 S.Ct. 1231, 1233-1234, 3 L.Ed.2d 1304 (1959); Killian v. United States, 368 U.S. 231, 243-244, 82 S.Ct. 302, 309, 7 L.Ed.2d 256. See also James v. United States, 5 Cir., 1969, 416 F.2d 467, 476, cert. denied, 397 U.S. 907, 90 S.Ct. 902, 25 L.Ed.2d 87 (1970); Posey v. United States, 5 Cir., 1969, 416 F.2d 545, 557, cert. denied, 397 U.S. 946, 90 S.Ct. 965, 25 L.Ed.2d 127 (1970).

V

Appellants urge four final claims of error by the trial court: (1) that the results of a polygraph examination taken by appellant Fountain should have been admitted in evidence; (2) that the instructions to the jury with respect to the credibility of witnesses and the essential elements of count II were confusing; that the instruction to the jury on “similar transactions” was improper in light of the date of enactment of section 1955; (3) that the trial court erred in admitting in evidence testimony of crimes committed by codefendants that were not related in any way to the charge herein; also testimony by Mrs. Matthews with respect to acts of violence committed by certain of the defendants that were unrelated to the charges on trial; and guns and similar paraphernalia seized from defendants who were not on trial; (4) that government counsel should not have been permitted to make a “prejudicial and inflammatory closing argument.”

Under the circumstances presented, we cannot say that the trial court erred in refusing to admit the results of the polygraph test taken by appellant Fountain. See, e. g., United States v. Francis, 5 Cir., 1973, 487 F.2d 968, 972; United States v. Chastain, 7 Cir., 1970, 435 F.2d 686, 687; United States v. Wainwright, 10 Cir., 1969, 413 F.2d 796, 802-803, cert. denied, 396 U.S. 1009, 90 S.Ct. 566, 24 L.Ed.2d 501 (1970); United States v. Tremont, 6 Cir., 1965, 351 F.2d 144, 146, cert. denied, 383 U.S. 944, 86 S.Ct. 1198, 16 L.Ed.2d 207 (1966); McCroskey v. United States, 8 Cir., 1965, 339 F.2d 895, 897. After a thorough review of the record, moreover, it is clear to us that appellants’ other assorted contentions are groundless.

We have examined all of appellants’ assertions and have found them to be without merit. Accordingly, the judgment below is affirmed.

      . 18 U.S.C. § 1955 provides in relevant part:
      § 1955. Prohibition of illegal gambling businesses
      (a) Whoever conducts, finances, manages, supervises, directs, or owns all or part of an illegal gambling business shall be fined not more than $20,000 or imprisoned not more than five years, or both.
      (b) As used in this section — ■
      (1) “illegal gambling business” means a gambling business which—
      (i) is a violation of the law of a State or political subdivision in which it is conducted ;
      (ii) involves five or more persons who conduct, finance, manage, supervise, direct, or own all or part of such business; and
      (iii) has been or remains in substantially continuous operation for a period in excess of thirty days or has a gross revenue of $2,000 in any single day.
      (2) “gambling” includes but is not limited to pool-selling, bookmaking, maintaining slot machines, roulette wheels or dice tables, and conducting lotteries, policy, bolita or numbers games, or selling chances therein.
      (3) “State” means any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession of the United States.
      (c) If five or more persons conduct, finance, manage, supervise, direct, or own all or part of a gambling business and such business operates for two or more successive days, then, for the purpose of obtaining warrants for arrests, interceptions, and other searches and seizures, probable cause that the business receives gross revenue in excess of $2,000 in any single day shall be deemed to have been established.

      . 18 U.S.C. § 2 provides :
      § 2. Principals
      (a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.
      (b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.

      . 18 U.S.C. § 371 provides:
      § 371. Conspiracy to commit offense or to defraud United States.
      If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined not more than $10,000 or imprisoned not more than five years, or both.
      If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor.

      . One defendant had died, the ease as to another had been dismissed, and the case as to the remaining two had been severed for trial at a later date.

      '. But see Model Penal Code § 5.04, Comment, at 173 (Tent.Draft No. 10,1960) :
      The rule is supportable only insofar as it avoids cumulative punishment for conspiracy and the completed substantive crime, for it is clear that the legislature would have taken ’the factor of concert into account in grading a crime which inevitably requires concert.

      . See generally United States v. Bobo, 4 Cir., 1973, 477 F.2d 974, 985-986:
      The cases decided on the issue of what constitutes an unindictable conspiracy reveal that Wharton’s rule, rather than being a rule, is a concept, the confines of which have been delineated in widely diverse fashion by the courts. Practically the only point of agreement among the cases which have considered the issues is the validity of the rule as applied to the crimes listed by Wharton in enunciating the rule. Those . were: dueling, bigamy, incest and adultery.

      . H.R.Rep.No.91-1549, accompanying Senate Bill No. 30, -which was adopted as the Organized Crime Control Act of 1970, Pub.L. 91-452, U.S.Code Cong. & Admin.News 1970, p. 4007.

      . In United States v. Hunter, 7 Cir., 1973, 478 F.2d 1019, 1026, the court held that “a charge of conspiracy to violate § 1955 may not be maintained if it comprehends nothing more than the agreement which those persons necessarily performed by the commission of the substantive offense itself.” We think it clear, however, that the record before us substantiates an aggravation of criminality, not essential to the substantive offense, that resulted from the illicit agreement among the defendants.

      . Rule 8 of the Federal Rules of Criminal Procedure provides in full:
      Joinder of Offenses and of Defendants
      (a) Joinder of Offenses. Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.
      (b) Joinder of Defendants. Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count.

      . Rule 14 of the Federal Rules of Criminal Procedure provides in full:
      Relief from Prejudicial Joinder
      If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires. In ruling on a motion by a defendant for severance the court may order the attorney for the government to deliver to the court for inspection in camera any statements or confessions made by the defendants which the government intends to introduce in evidence at the trial.

      . See also Model Penal Code § 5.03(4), Comment, at 135 (Tent.Draft No. 10, 1900) :
      In the case of complex and far-flung networks of crime, such a presentation [in one trial of all aspects of the entire scheme] may be essential to an understanding of the entire operation and the role played by each participant ....

      . 18 U.S.C. § 2516(2) provides in full:
      (2) The principal prosecuting attorney of any State, or the principal prosecuting attorney of any political subdivision thereof, if such attorney is authorized by a statute of that State to make application to a State court judge of competent jurisdiction for an order authorizing or approving the interception of wire or oral communications, may apply to such judge for, and such judge may grant in conformity with section 2518 of this chapter and with the applicable State statute an order authorizing, or approving the interception of wire or oral communications by investigative or law enforcement officers having responsibility for the investigation of the offense as to which the application is made, when such interception may provide or has provided evidence of the commission of the offense of murder, kidnapping, gambling, robbery, bribery, extortion, or dealing in narcotic drugs, marihuana or other dangerous drugs, or other crime dangerous to life, limb, or property, and punishable by imprisonment for more than one year, designated in any applicable State statute authorizing such interception, or any conspiracy to commit any of the foregoing offenses.

      . See Fla.Stat. § 934.07, F.S.A.:
      § 934.07 Authorization for interception of wire or oral communications
      The governor, the department of legal affairs, or any state attorney or any county solicitor having jurisdiction to prosecute felonies in his respective jurisdictions may authorize an application to a judge of competent jurisdiction for, and such judge may grant in conformity with this chapter, an order authorizing or approving the interception of wire or oral communications by the department of law enforcement or any law enforcement agency of this state or any political subdivision thereof having responsibility for the investigation of the offense as to which the application is made, when such interception may provide or lias provided evidence of the commission of the offense of murder, kidnapping, gambling (when the same is of an organized nature or carried on as a conspiracy in violation of the laws of this state), robbery, burglary, grand larceny, prostitution, criminal usury, abortion, bribery, extortion, dealing in narcotic drugs or other dangerous drugs, or any conspiracy to commit any violation of the laws of this state relating to the crimes specifically enumerated above.

      . Appellants urge that United States v. Robinson, 5 Cir., 468 F.2d 189, remanded on rehearing en banc, 5th Cir., 472 F.2d 973 (1973), stands for a strict reading of section 2516(2). That case involved improper delegation, in the name of the Attorney General of the United States, to inferior Justice Department officials of the power to authorize wiretap applications. The wiretap in question was found invalid under section 2516(1), which provides that the Attorney General or any specially designated Assistant Attorney General may authorize wiretap applications. Robinson provides no support for appellants’ contention. The Court’s reading of section 2516(1) is consistent with the language of that subsection because the subsection specifically names the officials concerned. In section 2516 (2), on the other hand, Congress left to the state statutory schemes the task of designating appropriate officials. Furthermore, in Robinson, the issue was whether someone inferior to the Attorney General could perform the function of approving wiretap applications; here, the question is whether his superior may do so. Whereas in Robinson appellants were deprived of proper guarantees owed them, appellants before us received more protections than required by statute.

      . 18 U.S.C. § 2510(9) (b) empowers both federal district and court of appeals judges to issue wiretap orders. Appellants contend, in effect, that only state trial court judges can issue wiretap orders.

      . During the period of the intercept orders, Justice Adkins received two assignments to sit as a judge of another court, on one occasion as a trial judge and on the other as an appellate judge.

      . Florida Statutes § 934.07, F.S.A. authorizes interception orders for precisely the same list of offenses, and in the same order, as section 2516(2), except that five additional offenses are included in the state statute. Intercept orders for gambling offenses may be issued under the state statute only “when the same is of an organized nature or carried on as a conspiracy in violation of the laws of this state.” See note 13 supra. A federal order may issue when a violation of section 1955 is indicated. See 18 U.S.C. § 2516(1) (c).

      . Other than limiting the offense of gambling to instances in which it is done in an organized manner, neither the federal nor the Florida wiretap statutes define gambling.

      . Florida Statutes § 849.09, F.S.A. makes it unlawful to promote, conduct, set up, advertise, assist, attempt to operate, possess any equipment or tickets for, sell or assist in the sale of tickets for, or possess any advertising for any lottery or lottery drawing.


source: Caselaw Access Project

author: THORNBERRY, Circuit Judge: PER CURIAM:

license: Public Domain

text:
    The CANAL AUTHORITY OF the STATE OF FLORIDA et al., Plaintiffs-Appellees, v. Howard H. CALLAWAY, Secretary of the United States Army, et al., Defendants-Appellants. The CROSS-FLORIDA CANAL ASSOCIATION et al., Plaintiffs-Appellees, v. Howard H. CALLAWAY, Secretary of the United States Army, et al., Defendants-Appellants. Eleanor H. MILLER et al., Plaintiffs-Appellees, v. Avery S. FULLERTON et al., Defendants-Appellants. ENVIRONMENTAL DEFENSE FUND, INC., et al., Plaintiffs-Appellants, v. CORPS OF ENGINEERS OF the UNITED STATES ARMY et al., Defendants-Appellants. J. G. PERKO, Plaintiff-Appellee, v. The CANAL AUTHORITY OF the STATE OF FLORIDA, etc., et al., Defendants-Appellants.
    No. 73-2487.
    United States Court of Appeals, Fifth Circuit.
    Feb. 15, 1974.
    Rehearing and Rehearing En Banc Denied April 10, 1974.

      Jacques B. Gelin, Wallace H. Johnson, Edmund B. Clark, Dept, of Justice, Washington, D. C., Frederick L. Miller, Dept, of Justice, Div. of Lands & Nat. Resources, Washington, D. C., John L. Briggs, U. S. Atty., John D. Roberts, Asst. U. S. Atty., Jacksonville, Fla., for all fed. defendants.
    Jon T. Brown, Wallace L. Duncan, Washington, D. C., Edward Lee Rogers, Gen. Counsel, Environmental Defense Fund, Inc., East Setauket, N. Y., for Env. Defense and others.
    Ralph E. Elliott, Jr., Frank C. Decker, Jacksonville, Fla., John H. Gullett, Washington, D. C., for Canal Authority and others.
    Willard Ayres, Ocala, Fla., for Canal Authority of State of Fla.
    David U. Tumin, Daniel U. Livermore, Jr., Jacksonville, Fla., for Jacksonville Port Authority.
    A. W. Nichols, III, Ronald E. Clark, Palatka, Fla., for Eleanor H. Miller and others.
    William L. Eagan, Orlando, Fla., for Perko.
    Tracy Danese, Jacksonville, Fla., for Cross-Fla. Assoc, and others.
    Alan B. Fields, Jr., Palatka, Fla., for Eleanor H. Miller and others.
    Before THORNBERRY, GOLDBERG and INGRAHAM, Circuit Judges.
   THORNBERRY, Circuit Judge:

This is an appeal from the denial of defendants’ motion to modify a preliminary injunction which prevents defendants from reducing the water level of Lake Ocklawaha below eighteen feet above mean sea level (m. s. L). We find that the district court applied the wrong legal standards in considering the motion to modify, and we remand for further consideration under the proper standards.

Factual Setting

The Ocklawaha River has its source in several large lakes of the central peninsula of Florida. It flows northward for sixty miles and enters the St. Johns River eight miles below Lake George. Its waters run clear, although stained by acids from the bark and leaves of the dense tree swamp through which it meanders. Its tree swamp ecology is rich, supporting a much more abundant and varied wildlife population than the adjacent pine islands. It is, as President Nixon described it, “[a] natural treasure ... a uniquely beautiful, semi-tropical stream, one of a very few of its kind in the United States

The trees along the Ocklawaha are the cornerstone of the area’s ecology. Their crowns close the canopy of the forest, creating the necessary balance of light, temperature, humidity and wind. They and their associated understory vegetation act as a nutrient and a biological filter in cleansing the river in time of flood. They provide food and habitat for birds, epiphytic plants and wildlife. Leaf fall from the natural forest over-story adjacent to the river is an important component of the allochthonous energy inputs required for maintenance of the high productivity of the detritus-based river system. The trees provide the seeds necessary for regeneration of the forest. The loss of these trees would drastically change the character of the area, and, once lost, they could not be replaced by new growth for decades.

As part of the Cross Florida Barge Canal project, Rodman Dam was built on the Ocklawaha River. After the dam’s completion in 1968, the waters it impounded created a lake approximately sixteen miles long, flooding some 13,000 acres of partially cleared land in the Ocklawaha Valley. A number of the trees in this area had previously been cleared by being crushed into the swamp floor. However, approximately 1135 acres of large hardwood trees, many of which had lined the course of the Ockla-waha River prior to the inundation, were left standing to be flooded by the lake, primarily so as to serve as a fish habitat. The flooding is progressively killing off the remaining trees. The preservation of the surviving trees in this presently standing timber was the objective of the motion denied by the district court.

History of the Litigation

In September, 1969, the Environmental Defense Fund, joined by the Florida Defenders of the Environment and several individuals, filed suit in the United States District Court for the District of Columbia to halt construction of the Cross Florida Barge Canal project. After a hearing, the district court denied the defendants’ motion to dismiss and orally granted the plaintiffs’ motion for a preliminary injunction to stop certain aspects of the construction. Before these orders were entered the President of the United States, pursuant to the advice of the Council on Environmental Quality, ordered the suspension of further construction of the canal. The Canal Authority of the State of Florida, the local sponsor of the project, then moved to intervene in the District of Columbia action alleging that as a result of the President’s order the federal defendants were no longer able to defend the canal project.

Prior to the granting of the motion, the Canal Authority filed a second action in the Middle District of Florida against substantially the same defendants, alleging wrongful termination of the project. Later, other similar suits were filed by local governmental and individual interests. On July 27, 1971, the Judicial Panel on Multidistrict Litigation ordered the actions consolidated and transferred to the Middle District of Florida, to be heard before Senior Circuit Judge Harvey M. Johnsen.

Prior to the consolidation the United States Forest Service recommended that Lake Ocklawaha be drained, so as to preserve as many trees, as possible. The Canal Authority, as intervenor in the District of Columbia litigation, unsuccessfully sought a preliminary injunction to prevent the drawdown. Such an injunction was granted, however, in the case brought in the Middle District of Florida by the Cross-Florida Canal Association. After the consolidation, Judge Johnsen considered afresh the question of a preliminary injunction to prevent the proposed drawdown and granted it on September 29, 1971, after three days of evidentiary hearing and argument. The injunction order specifically invited subsequent applications for “vacative or modificatory” relief from the preliminary injunction if facts could be developed to justify such relief.

After several unsuccessful attempts to have the injunction modified, the joint appellants moved again for modification on June 1, 1972. This motion was based on extensive scientific investigations and studies conducted by an interagency task force during the months of April and May, 1972. The task force was composed of more than fifty experts in the fields of ecology, forestry, plant physiology and pathology, aquatic weeds, recreation, fisheries, biology, photo-grammetry, hydrology, biochemistry, engineering, agronomy, and mathematics. Following its investigations, the task force recommended that Lake Ocklawaha be lowered immediately to an elevation of thirteen feet m. s. 1. to preserve the large number of living trees threatened with imminent death so as to maintain all future options for ecologically sound use of the area.

After four days of hearings, on July 21, 1972, the district court granted the motion of the joint appellants for a modification of the temporary injunction, allowing the lake to be drawn down from eighteen feet m. s. 1. to thirteen feet m. s. 1. for the balance of the 1972 growing season, i. e., until December 1, 1972. The court noted that

the array of the task force personnel and its expert consultants is so formidable and the strength of their opinion [is] such that the court does not feel entitled to allow such layman’s doubt as it may have to control against the strong body of this expert opinion. Further, the difference in the extent of the methods and factors involved, as between these experts and those of the Canal Authority, seems to the court to require the according of a more persuasive general weight to the opinion of the Federal defendants’ experts.

The evidence adduced in securing a temporary drawdown had been gathered while the trees were flooded. During the drawdown period, these scientists were able to make far more precise analyses of both the flooding effect and the trees’ growth process. On November 27, 1972, the federal defendants moved to extend the drawdown period until a final decision had been made about the future of the area. The court twice extended the deadline for reflood-ing in order to allow all parties to file additional pleadings and affidavits. On December 8, 1972, the federal defendants filed a supplemental memorandum, together with voluminous affidavits supporting their position. A central finding was that the tree roots in the area had no dormant period. Although some trees lose their leaves during the winter, root growth activity continues. Accordingly, earlier projections that recommended limiting a drawdown to the so called “growth season” were proved wrong. The only recommended scientific solution to save the trees was to keep the lake’s waters at the low level. Otherwise, the scientists predicted, large numbers of trees (estimated at up to 120,000) would die and the river’s swamp forest condition would be imperiled.

Despite the new scientific evidence, the district court issued an order denying the requested drawdown. The court did not reject the government’s essen-tiálly unchallenged scientific evidence, but rather based its decision on a balancing of other factors, such as the adverse effect of a drawdown on recreation, wildlife habitat, fisheries, and aesthetics, the effect of continuing the injunction on advancing the trial on the merits, and the fact that the public might consider a modification of the injunction so as to continue the drawdown a herald of doom for the entire canal project.

The district court order denying modification of the original temporary injunction was dated January 12, 1973. On February 8, 1973, the federal defendants filed a motion for an expedited trial and for reconsideration of the court’s January 12 order. Because of the court’s ruling that they were out of time on the reconsideration aspect, the federal defendants substituted a motion for modification of the September 29, 1971, injunction. On March 28, 1973, the district court denied the motion, and this appeal followed.

General Requirements for a Preliminary Injunction

A preliminary injunction may be issued to protect the plaintiff from irreparable injury and to preserve the district court’s power to render a meaningful decision after a trial on the merits. The grant or denial of a preliminary injunction rests in the discretion of the district court. Johnson v. Radford, 5 Cir. 1971, 449 F.2d 115. The district court does not exercise unbridled discretion, however. It must exercise that discretion in light of what we have termed “the four prerequisites for the extraordinary relief of preliminary injunction.” Allison v. Froehlke, 5 Cir. 1972, 470 F.2d 1123, 1126. The four prerequisites are as follows: (1) a substantial likelihood that plaintiff will prevail on the merits, (2) a substantial threat that plaintiff will suffer irreparable injury if the injunction is not granted, (3) that the threatened injury to plaintiff outweighs the threatened harm the injunction may do to defendant, and (4) that granting the preliminary injunction will not disserve the public interest. Di Giorgio v. Causey, 5 Cir. 1973, 488 F.2d 527; Blackshear Residents Organization v. Romney, 5 Cir. 1973, 472 F.2d 1197.

In considering these four prerequisites, the court must remember that a preliminary injunction is an extraordinary and drastic remedy which should not be granted unless the movant clearly carries the burden of persuasion. The primary justification for applying this remedy is to preserve the court’s ability to render a meaningful decision on the merits.

Although the fundamental fairness of preventing irremediable harm to a party is an important factor on a preliminary injunction application, the most compelling reason in favor of [granting a preliminary injunction] is the need to prevent the judicial process from being rendered futile by defendant’s action or refusal to act.

Wright & Miller, Federal Practice and Procedure: Civil § 2947. Thus only those injuries that cannot be redressed by the application of a judicial remedy after a hearing on the merits can properly justify a preliminary injunction.

Factors Actually Considered by the District Court

In neither its original order of September 29, 1971, which granted the preliminary injunction, nor in any of the subsequent orders dealing with it were the foregoing requirements explicitly or implicitly the focus of the discussion. In fact, at the outset, in the September 29 order, the court improperly placed on the defendants the burden of proving that the preliminary injunction should not issue, when it stated that “I am not, however, persuaded on the conflicting evidence that a temporary drawdown as sought by the Government . would result in the preservation of the life of such a number of trees as to entitle this to be controlling . ” This erroneous placement of the burden of proof on this issue of’ harm to the defendants was also evident in the order of July 21, 1972. The court did allow a temporary drawdown, but only because the defendants had come forward with such a formidable array of experts who held such strong opinions that they overwhelmed the court’s “layman’s doubt” as well as the expert opinion offered by the Canal Authority. Finally, the order of January 12, 1973, reinstated the original injunction and required the lake level to be raised again because “the question of saving such a quantity of trees ... as the Federal defendants contend is possible [did] not seem to [the court] to be a matter of such probable environmental and ecological certainty as to require [the court] to go beyond the temporary drawdown . . . . ”

Under the proper view of the law, it should not have been incumbent upon the defendants to prove by a preponderance of the evidence, much less to a “probable environmental and ecological certainty,” that the interests they represent would suffer irreparable harm. The burden of persuasion on all of the four requirements for a preliminary injunction is at all times upon the plaintiff.

The district court also erred in assuming that a preliminary injunction is normally available in cases such as these. In the order of September 29, 1971, it is stated that “the completed Rodman Pool has been permitted to acquire such a substance of environmental, ecological and recreational elements as to give rise to a status quo that would normally be entitled to temporary protection except as against the existence of other clear and overriding public factors.” (Emphasis supplied.) This completely loses sight of the rule that a preliminary injunction is an extraordinary remedy, not normally available unless the plaintiff clearly carries his burden of proof as to its prerequisites. There is always a status quo. There should not be a preliminary injunction to protect it, however, unless the court’s ability to render a meaningful decision on the merits would otherwise be in jeopardy. To be sure, preliminary injunctions have often been properly granted in environmental litigation. See, e. g., West Virginia Highlands Conservancy v. Island Creek Coal Co., 4 Cir. 1971, 441 F. 2d 232; Boston Waterfront Residents Association, Inc. v. Romney, D.Mass. 1972, 343 F.Supp. 89; Scherr v. Volpe, W.D.Wisc.1971, 336 F.Supp. 882, aff’d, 7 Cir. 1972, 466 F.2d 1027. In all such cases, however, preliminary injunctions have been issued not merely because some impact upon the environment has been alleged, but because the threatened harm has been properly shown to be irreparable, in accordance with the usual test for a preliminary injunction. Indeed, where no irreparable injury is alleged and proved, denial of a preliminary injunction is appropriate. Environmental Defense Fund v. Hardin, D. D.C.1971, 325 F.Supp. 1401.

In this case, the district court did rely on the fact that there would be an adverse impact upon the new lake environment if the water level were drawn down. The court made no finding, however, that such an impact would be irreparable or irreversible. Since the lake’s ecology evolved from scratch in the relatively few years the lake has been in existence, it seems possible that it could be as quickly restored even if the water level is now lowered, and there is evidence in the record to this effect. A proper preliminary injunction, however, would have to rest on an opposite finding, i. e., that the damage to be done by the drawdown will be irreparable. No such finding was made.

Similarly, the district court relied on the fact that a drawdown of the lake would adversely affect “the fishing, boating, picnicking, accessibility, and other general recreational uses of the existing lake.” This is also unsupported by any further finding that the adverse effect on recreation could not be repaired by a simple refilling of the lake. Such a further finding of irreparability is necessary, however, if this factor is to be relevant to the question of a preliminary injunction.

In its order of September 29, 1971, the district court lists as one of the adverse effects that “such a drawdown also would physically and psychologically strike at the status quo of this purportedly completed portion of the Cross-Florida Barge project — in the heated climate which clearly exists . . . . ” In the order of July 21, 1972, Judge Johnsen explained further his thinking at the time of the first order:

[Wjith the situation thus being subject to the implication that it might perhaps be intended thereby to impose a self-death impression in the public mind (as the Canal proponents charged), it seemed probable that the Canal proponents would be entitled to some form of declaratory pronouncement or judgment, with the court regarding this probability as providing a supportive element both as to the issuance of the preliminary injunction and as to the refusal to modify it for the remainder of the 1971 growing season.

As he further explained in the July order,

There was in addition an intangible factor which seemed to permeate the 1971 proceedings. The Rodman Pool appears to be the most symbolic portion or element of the Canal project as thus far constructed. In the seeming hastiness of the Federal defendants to make reach at the Rodman Pool, before they were able to show that any procedures had yet been or were going to be promptly engaged in under the National Environmental Policy Act, the situation was not without an implication of a desire to effect a swift psychological blow for public impression that the whole Canal project would be undergoing a summary demise. The feeling of general unfairness which properly could and which the court sensed did in wide measure so exist was a matter which the court deemed it owed some judicial responsibility not to permit to be fostered, except as clear and overbalancing public interest commanded the action which was being sought to be engaged in.
Whatever symbolic quest there might thus have been involved should by now have lost its anesthetizing force.

This factor was still seen as important in the order of January 12, 1973, the subject of the present appeal:

[RJefusal to reopen the question of the level of the Rodman Pool will also prevent the Rodman Pool from continuing to be publicly symbolized and heralded on the basis of the attempt made to change its status quo, its conditions and its uses, as necessarily portending the doom and dismantling of the whole Barge Canal project and being psychologically used to sway public sentiment by those who have no concern about or responsibility for whether the administrative and judicial processes are afforded opportunity to properly dispose of the question.

We do not regard the question of the psychological impact of an order on either the parties or the public as a relevant consideration under the facts of this case. In no way does it affect the court’s ability to render a meaningful decision on the merits: it neither enhances nor detracts from plaintiff’s chances of success on the merits; it tends neither to show nor negate irreparable injury to either party; and it is not probative on the issue of the public interest. It may well be true, of course, that any order — either granting or denying the preliminary injunction — may have a psychological effect on the parties or, in a well publicized case such as this, the public, although the existence of such an effect and its content are highly speculative. In any event, in the absence of a finding of any relevance to the requirements for a preliminary injunction, we do -not think the district court should have taken this factor into account.

In its order of January 12, 1973, the district judge relied on yet another irrelevant factor when he recited that “I am of the belief that a refusal to reopen the question of the level of the Rodman Pool, at least until the eases have been tried, will serve to bring the trial situation to a head.” While we certainly favor expedition in the handling of judicial affairs, we fail to see how this in itself relates to any of the prerequisites for a preliminary injunction, and the district court made no explicit finding that it was in any way relevant to them. It might be that the injunction itself, by keeping the water level up and thus contributing to the progressive killing of the trees, would spur the defendants in their desire to do everything possible to hasten the hearing on the merits. We are reluctant to believe, however, that the district court would utilize a preliminary injunction, an equitable remedy, for the inequitable purpose of inflicting progressive injury upon a party, merely in order to advance the litigation on the merits. Suffice it to say that the district court made no finding as to the relevance of this factor to any of the considerations material to the grant or denial of a preliminary injunction.

Finally, in its discussion of the harm done by the'injunction to the ecological interests represented by defendants, the court stated that

the tree acreage involved in Population 5 is relatively small in terms of the area being merged into and made to constitute a part of the Ocala National Forest. It is much less in size than forest areas throughout the country which have often become the subject of devastation by fire

We find such comparisons irrelevant. Assuming that the threatened harm is more than de minimis, it is not so much the magnitude but the irreparability that counts for purposes of a preliminary injunction. Neither the rest of the trees in the Ocala National Forest nor the trees regrettably lost to forest fires are properly before the district court for consideration. The only trees over which the court has jurisdiction are those presently being flooded by Lake Ocklawaha. These are the very trees which formerly lined the Ocklawaha River, the loss of which will destroy the basis of the river’s ecology' — hardly a de minimis result. The irreparability of the harm if these trees are lost is not diminished by reference to the large number of other trees in the Ocala National Forest, none of which can support the ecology of the Ocklawaha River, since they do not line its banks. Similarly, the irreparability of the threatened harm, which is preventable, is not diminished by comparison to the nationwide loss of trees caused by forest fires that the district court is powerless to prevent.

Further Proceedings

Since the district court was not applying the proper legal standards, it considered many factors that were not relevant, and it failed to support its actions with proper findings of fact and conclusions of law. The motion to modify the preliminary injunction must now be reconsidered in light of the proper standards. Since the evidence is complex and the district court is in a better position to evaluate it, having heard the evidence and arguments in the first instance, we think it more appropriate *to remand to that court for reconsideration than attempt it ourselves. In the interest of judicial economy, we offer the following for guidance on remand.

First and foremost, we reemphasize the importance of the general requirements for a preliminary injunction. It is an extraordinary remedy, not available unless the plaintiff carries his burden of persuasion as to all of the four prerequisites. The primary justification for granting a preliminary injunction is to preserve the court’s ability to render a meaningful decision after a trial on the merits.

It is often loosely stated that the purpose of a preliminary injunction is to preserve the status quo. See, e. g., Exhibitors Poster Exchange, Inc. v. National Screen Service Corp., 5 Cir. 1971, 441 F.2d 560; Miami Beach Federal Savings & Loan Association v. Callander, 5 Cir. 1958, 256 F.2d 410. Indeed, some such notion may have influenced the district judge in this case, since he wrote of a “status quo that would normally be entitled to temporary protection.” It must not be thought, however, that there is any particular magic in the phrase “status quo.” The purpose of a preliminary injunction is always to prevent irreparable injury so as to preserve the court’s ability to render a meaningful decision on the merits. It often happens that this purpose is furthered by preservation of the status quo, but not always. If the currently existing status quo itself is causing one of the parties irreparable injury, it is necessary to alter the situation so as to prevent the injury, either by returning to the last uncontested status quo between the parties, Ross-Whitney Corp. v. Smith Kline & French Laboratories, 9 Cir. 1953, 207 F.2d 190, by the issuance of a mandatory injunction, see 7 Moore’s Federal Practice fí 65.04 [1], or by allowing the parties to take proposed action that the court finds will minimize the irreparable injury. The focus always must be on prevention of injury by a proper order, not merely on preservation of the status quo.

The parties have not made a major issue of the requirement that plaintiff demonstrate a substantial likelihood of prevailing on the merits, and the various court orders do not discuss the issue. However, it is important to consider this requirement, since, regardless of the balance of relative hardships threatened to the parties, the granting of a preliminary injunction would be inequitable if the plaintiff has no chance of success on the merits. The importance of this requirement varies with the relative balance of threatened hardships facing each of the parties.

[Ajlthough a showing that plaintiff will be more severely prejudiced by a denial of the injunction than defendant would be by its grant does not remove the need to show some probability of winning on the merits, it does lower the standard that must be met. Conversely, if there is only slight evidence that plaintiff will be injured in the absence of interlocutory relief, the showing that he is likely to prevail on the merits is particularly important.

Wright & Miller, Federal Practice and Procedure: Civil § 2948. In this context, the district court should consider the relevance of Gulf Oil Corp. v. Morton, 9 Cir. 1973, 493 F.2d 141. Although the case arises in a different factual and legal context, it does indicate that temporary administrative action to meet previously unconsidered environmental dangers may be appropriate if it furthers the public policy expressed by Congress in the National Environmental Policy Act (NEPA), 42 U.S.C.A. § 4321 et seq.,even if it involves a temporary cessation of a project previously approved by Congress.

The district court must reconsider carefully the irreparability of the various injuries plaintiffs will allegedly suffer in the absence" of a preliminary injunction. Many of the dangers, e. g., loss of recreational use of the lake, loss of tourism, and alteration of the lake ecology, can hardly be termed irreparable if, as alleged, they are fully reversible by the simple expedient of refilling the lake if the trial on the merits goes for plaintiffs.

Much has been made of the recommendations made by the United States Forest Service that the Ocklawaha be made a Study River for possible inclusion in the National Wild and Scenic River System or be included within the Ocala National Forest. While these possibilities do highlight the sort of options that might be foreclosed if the river’s ecology is destroyed, they are not the controlling considerations in themselves. The focus for purposes of a preliminary injunction must be on the irreparable injury presently threatened, rather than on the particular institutional mechanisms that might be set up to preserve the river in the long run.

Whatever may become of those proposals, the district court should focus directly on the primary purpose of a pre- • liminary injunction in this context — prevention of the irreparable injury itself.

Because of the relevance of the NEPA to suits such as this, it is important to note its impact on the preliminary injunction question. It is quite clear that the NEPA provides a new statutory basis for injunctions against proposed actions by federal agencies that will have significant effects on the human environment if no environmental impact statement has been filed. See, e. g., Sierra Club v. Volpe, N.D.Cal.1972, 351 F.Supp. 1002; Environmental Defense Fund v. Tennessee Valley Authority, E.D.Tenn.1972, 339 F.Supp. 806, aff’d, 6 Cir. 1972, 468 F.2d 1164. However, the general requirements for a preliminary injunction, even in a suit grounded on the failure to file an impact statement, have not been altered. In many cases, preliminary injunctions have been granted, but only because the plaintiff, by showing no statement had been filed, had demonstrated a probability of success on the merits, and had further met the other usual requirements. In accordance with the traditional practice, preliminary injunctions have also been denied because the plaintiff has failed to prove one of the essentials, such as probability of success on the merits, Sierra Club v. Froehlke, W. D. Wis.1972, 345 F.Supp. 440, or threat of irreparable injury if the preliminary injunction is not granted, Environmental Defense Fund v. Hardin, D.D.C.1971, 325 F.Supp. 1401. Consequently, the NEPA, though relevant to the merits of the present case, has not altered the traditional tests for a preliminary injunction that are to be applied on remand.

It is true that defendants could have appealed from the original order of September 29, 1971, which granted the preliminary injunction, or any of the orders regarding subsequent motions to modify. Had they done so, no doubt a proper resolution of the preliminary injunction question would have been hastened. Their failure to file an earlier appeal, however, does not in itself give rise to any objection. If plaintiffs have established that the failure to take an earlier appeal is somehow relevant to one of the prerequisites for a- preliminary injunction, the district court should give this factor appropriate consideration. Otherwise, the delay is irrelevant to the proper disposition of the present motion to modify. It should be remembered, also, that the decision not to appeal earlier may well have been induced by the district court itself, which specifically invited defendants to'make further application to that court for “vaca-tive or modificatory” relief from the preliminary injunction.

There is no doubt that the district court has continuing jurisdiction over a preliminary injunction. See Central Hanover Bank & Trust Co. v. Callaway, 5 Cir. 1943, 135 F.2d 592. In the exercise of that jurisdiction, the court is authorized to make .any changes in the injunction that are equitable in light of subsequent changes in the facts or the law, or for any other good reason. 7 Moore’s Federal Practice j] 65.07. We regard the fact that all previous actions were taken under a mistaken view of the law as sufficiently good reason that the district court, upon a proper motion, should reconsider those actions in light of the correct standards.

Finally, we cannot avoid noting one disturbing possibility permeating this entire case. This preliminary injunction, unsupported by proper findings of fact and conclusions of law, has been in effect for well over a year, with only one interruption. As a result, the trees in Lake Ocklawaha have remained flooded, a condition which has contributed to their progressive deterioration. It is possible that the preliminary injunction, far from preventing the irreparable injury, has actually been causing it. We would regard this as a highly inequitable function for an equitable remedy. In view of this possibility, we would expect the district court to re-examine its order without delay. Of course, no further evidentiary hearings should be held before this reexamination : it was the plaintiff’s burden to introduce sufficient evidence to justify the preliminary injunction, and the court’s prior action in refusing to modify it must stand or fall in light of the evidence before it at the time. Subsequent motions to modify the injunction might justify further evidentiary hearings if they allege changes in the facts. However, reconsideration of the motion presently under review should not be delayed by any further evidentiary hearings.

The ease is remanded for new findings of fact and conclusions of law in accordance with the principles set out herein.

ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC

PER CURIAM:

The Petition for Rehearing is denied and no member of this panel nor Judge in regular active service on the Court having requested that the court be polled on rehearing en banc, (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is denied.

In view of footnote five, which anticipates the possibility of a disposition on the merits without further action* on the preliminary injunction, this appeal will not be dismissed as moot. Costs are taxed equally against the parties.

      . Statement by President Nixon, January 19, 1971.

      . The full text of the President’s statement of January 19, 1971, is as follows:
      I am today ordering a halt to further construction of the Cross Florida Barge Canal to prevent potentially serious environmental damages.
      The purpose of the Canal was to reduce transportation costs for barge shipping. It was conceived and designed at a time when the focus of Federal concern in such matters was still almost completelv on maximizing economic return. In calculating that return, the destruction of natural, ecological values was not counted as a cost, nor was a credit allowed for actions preserving the environment.
      A natural treasure is involved in the case of the Barge Canal — the Ocklawaha River— a uniquely beautiful, semi-tropical stream, one of a very few of its kind in the United States, which would be destroyed by construction of the Canal.
      The Council on Environmental Quality has recommended to me that the project be halted, and I have accepted its advice. The Council has pointed out to me that the project could endanger the unique wildlife of the area and destroy this region of unusual and unique natural beauty.
      The total cost of the project if it were completed would be about $180 million. About $50 million has already been committed to construction. I am asking the Secretary of the Army to work with the Council on Environmental Quality in developing recommendations for the future of the area.
      The step I have taken today will prevent a past mistake from causing permanent damage. But more important, we must assure that in the future we take not only full but also timely account of the environmental impact of such projects — so that instead of merely halting the damage, we prevent it.

      . The congressional declaration of national environmental policy is contained in § 4331.
      (a) The Congress, recognizing the profound impact of man’s activity on the interrelations of all components of the natural environment, particularly the profound influences of population growth, higli-density urbanization, industrial expansion, resource exploitation, and new and expanding leeli-nological advances and recognizing further the critical importance of restoring and maintaining environmental quality to the overall welfare and development of man, declares that it is the continuing policy of the Federal Government, in cooperation with State and local governments, and other concerned public and private organizations, to use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in j)roductive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.
      (b) In order to carry out the policy set forth in this chapter, it is the continuing responsibility of the Federal Government to use all practicable means, consistent with other essential considerations of national policy, to improve and coordinate Federal plans, functions, programs, and resources to the end that the Nation may—
      (1) fulfill the responsibilities of each generation as trustee of the environment for succeeding generations;
      (2) assure for all Americans safe, healthful, productive, and esthetically and culturally pleasing surroundings;
      (3) attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences;
      (4) preserve important historic, cultural, and natural aspects of our national heritage, and maintain, wherever possible, an environment which supports diversity and variety of individual choice ;
      (5) achieve a balance between population and resource use which will permit high standards of living and a wide sharing of life’s amenities; and
      (6) enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources.
      (c) The. Congress recognizes that each person should enjoy a healthful environment and that each person has a responsibility to contribute to the preservation and enhancement of the environment.

      . The system was established by the Wild and Scenic Rivers Act, 16 U.S.C.A. § 1271 et seq.

      . At oral argument it was asserted that the trial on the merits had been completed. If a decision on the merits is to be immediately forthcoming, it will not be necessary for the district court to act further on the question of the preliminary injunction. If there is to be any delay in rendering the decision on the merits, however, the district court should first re-examine the motion to modify the preliminary injunction.