author: CHRISTENSEN, Senior District Judge. BAZELON, Chief Judge,

text:
    Philip BERRIGAN et al., Appellants, v. Maurice SIGLER, Chairman of the board of parole and all members of the said board of parole (all of whom have their offices at room 354 HOLC (Building) et al.
    No. 73-1563.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Feb. 21, 1974.
    Decided May 1, 1974.

      Morton Stavis, New York City, with whom Alvin J. Bronstein, Washington, D. C., was on the brief, for appellants.
    N. Richard Janis, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., at the time the brief was filed, John A. Terry and Gil Zimmerman, Asst. U. S. Attys., were on the brief, for appellees. Earl J. Silbert, U. S. Atty., also entered an appearance for appellees.
    Before BAZELON, Chief Judge, Mc-GOWAN, Circuit Judge, and CHRISTENSEN, United States District Judge for the District of Utah.

       Sitting by designation pursuant to 28 U.S.C. I§ 294(d).

   CHRISTENSEN, Senior District Judge.

Despite a preliminary exploration of the problem to the contrary, it has now been determined that a constitutional balance was struck by the Board of Parole between its duties of supervision and the right of parolees to travel in denying leave for appellants to make a trip to North Vietnam under the circumstances, and we therefore affirm the summary judgment of the district court to this effect.

Fathers Philip and Daniel Berrigan were convicted of felonies by reason of the illegal activation of their opposition to the Vietnam war. After serving a substantial part of the sentences imposed, they were granted parole upon the usual condition contained in certificates of parole that they would “go directly to the district shown on this Certificate of Parole . . . [and] . shall not leave the limits fixed by the Certificate of parole without written permission from the probation officer.”

Having been granted permission on other occasions to leave their districts for speech making and other purposes, on January 8, 1973, appellants unsuccessfully sought leave from the Board to travel to Hanoi “to visit with religious leaders and others”. They filed their complaint with the district court on January 12, seeking judicial review of the administrative action of the Board, a declaratory judgment “that the members of the Board [had] interfered with plaintiffs’ constitutional rights in denying such permission”, to enjoin the defendants “from interfering with any future travel plans of the plaintiffs wherein they [may seek] to exercise their First Amendment rights”, and “a mandatory order to require that the defendants in their capacity as members of the Board of Parole permit the plaintiffs to make the trip to Hanoi, and any other travel of a similar nature”.

At the time of filing their complaint appellants moved for a temporary restraining order requiring the Board to approve appellants’ request, which was denied by the district court. On January 17, following oral arguments the preceding day, this court, one member of the panel dissenting, summarily vacated the order denying appellants temporary relief, ordered “that appellee Parole Board members be, and they are hereby, temporarily restrained from withholding their approval of appellants’ proposed trip to North Vietnam”, and remanded the case to the district court “for further proceedings not inconsistent with this order.” Thereupon the Solicitor General presented to the Chief Justice an application for a stay of the order of this court until a hearing before the district court on plaintiff’s motion for a preliminary injunction could be had. The Chief Justice granted such stay pending reference of the matter to the full court. On January 22, 1973, the Supreme Court, with one justice dissenting, ruled that the “[application for stay, presented to The Chief Justice, and by him referred to the Court, is granted”. Following another hearing, a remand to the Board, and a further hearing in view of the Board’s supplemental report, the district court on May 3, 1973, granted the appellees’ motion for summary judgment on the merits and accordingly denied appellants’ motion for preliminary injunction as moot.

We need concern ourselves no further with the procedures below which brought into the record an amplification of the Board’s reasons for denial of the requested leave and culminated in the decision on the merits by summary judgment; they are amply outlined in Judge Gasch’s Memorandum Order, 358 F.Supp. at 131-133, and were considerate and sufficient to warrant final disposition there subject to this appeal.

I

The effect of one phase of the preliminary proceedings, however, must be determined, since the first point appellants seek to make is that this court’s prior opinion concerning the invalidity of the initial restraining order, 475 F.2d 918, established the law of the case on the merits and now dictates reversal of the subsequent judgment of the district court. It is argued that the record in view of which the district court acted on the application for a preliminary injunction was substantially the same as that which was before this court when it considered the restraining order, and that since “the sole ground upon which a stay was applied for in the Supreme Court was to permit development of a full record”, the district court was bound to dispositively follow the prior decision of this court. Even assuming, without accepting, the validity of the premises, we cannot agree with this conclusion.

The decision of a trial or appellate court whether to grant or deny a preliminary injunction does not constitute the law of the case for the purposes of further proceedings and does not limit or preclude the parties from litigating the merits, unless there has been an order of consolidation pursuant to Rule 65(a)(2), not the case here. Much less would rulings concerning temporary restraining orders have the binding effect claimed by appellants. This is not to say that the views expressed by a court at a given time, although not controlling, cannot be persuasive for their reason and authority to the extent applicable in any new context, or that a case may not be rendered moot as a consequence of preliminary rulings under special circumstances. But such rulings did not moot this case and did not preclude the district .court, nor should they dissuade us, from taking a fresh look.

Appellants advance the following basic contentions additionally in support of their appeal:

II. The action of the appellees abridged appellants’ constitutional rights under the First and Fifth Amendments ; the only basis upon which such abridgment could be justified is a “compelling governmental interest”, tested by “stringent standards” and subjected to “rigid scrutiny”, which cannot be found here.

III. The claim that prohibition of travel to Hanoi was justified by the needs of parole supervision is “transparently unrealistic”.

IV. The Board acted wholly beyond its power in applying foreign policy considerations in its determination.

II

The right to travel is a part of the “liberty” of which a person cannot be deprived without due process of law. It does not follow, as contended by appellants, that to the extent that a restriction of travel in a particular circumstance may inhibit a person’s speaking or associating with others, it necessarily involves an impairment of First Amendment rights. Zemel v. Rusk, 381 U.S. 1, 85 S.Ct. 1271, 14 L.Ed.2d 179 (1965), supra, clearly stands against such a proposition. It is fallacious to argue that restriction of travel necessarily interferes with the traveler’s prospective right of free speech at the point of destination in violation of the Constitution irrespective of the validity of the travel restriction. Association, as well as speech, always is to be expected and, indeed, may be inevitable at the destination of any travel, but this does not render invalid legitimate restrictions upon travel for any such reason.

While we must remain sensitive to the overriding importance of First Amendment rights in the evaluation of restrictions that may be even tangentially related, the enforcement of legitimate regulations must not be diluted or rendered impractical because as an incident to their application speaking, association or writing may be affected. Under the guise of exercising the First Amendment right of free speech, a person may not reposition himself where he otherwise would have no authority to be. Nor can one in reliance upon freedom of the press, by virtue of that reliance alone, legally seize without consideration or lawful warrant the plant of a newspaper belonging to another; it would be one thing to expect to use the columns of the paper to voice views and opinions under appropriate conditions, quite another to move without authority into another’s plant for the purpose. On the other hand, it has been held repeatedly that the right to travel is an aspect of the “liberty” guaranteed by the Due Process Clause of the Fifth Amendment. We conclude that restrictions against the Fifth Amendment right to liberty in travel are involved here, and that such restrictions must be tested by the essentials of due process.

Ill

As an essential part of any consideration of the travel restrictions as such, the appellants’ parole status under the governing statute and regulations is inescapably significant.

Parole has its genesis and justification, and carries content, meaning and objectives from due process convictions and sentences for crimes which justifiably deprived the parolee for a time of any power of travel whatsoever, and which, were it not for acceptable conduct have continued to totally deprive the parolee of all power of travel for the remaining period of his sentence. Unless an inflation of “travel rights” is to engulf the federal correctional system, these realities must not be lost to view. Their importance is pervasive, for the viability not only of parole, but of other enlightened aspects of the system depend upon a reasonable administration of restrictions against travel by convicts whose terms have not expired. The Chairman of the Board of Parole in a supplemental affidavit filed in the District Court following our preliminary consideration of this case explained the Board policy and practice with reference to foreign travel, in which I can find nothing facially unreasonable.

The Supreme Court recently-observed: “To accomplish the purpose of parole, those who are allowed to leave prison early are subjected to specified conditions for the duration of their terms. These conditions restrict their activities substantially beyond the ordinary restrictions imposed by law on an individual citizen.” As this court has stated, parolees “are neither totally free men who are being proceeded against by the government for commission of a crime, nor are they prisoners being disciplined within the walls of a federal penitentiary. They stand somewhere between these two.” This is not to say that parolees lose their constitutional rights, nor do prisoners in custody. But those rights of necessity are conditioned by the situation in which their convictions placed them. It would be unrealistic to consider their rights wholly separate and apart from their status as parolees, or to disassociate their status either from the public interest which dictated both their confinement and parole at suitable times, or from reasonable conditions upon which they are released. And there is also a legitimate governmental interest in continuing means for information concerning a parolee’s deportment and any necessity for closer supervision, or to preserve the therapeutic effect of more general supervision even absent day by day direction.

In the original affidavit submitted on behalf of the Board, one of the two reasons of its decision was stated as follows:

“Total lack of any means of control to effectuate the Board’s supervisory responsibilities looking to the rehabilitation of the parolees, where they would be visiting in an area where the United States has no diplomatic representative of its own or, in lieu thereof, any foreign power to represent it or its interests.”

The panel of the court considering the district court’s denial of the restraining order concluded per curiam that this stated reason was insufficient because “[t]he proposed visit to North Vietnam will be of short duration, and it is clear that it will not interfere with the rehabilitation of appellants, especially since the Board has made no active effort to rehabilitate appellants since the date of their release.” In a separate statement by Chief Judge Bazelon, concurred in by Judge Wright, this position of the Board was branded as “so transparently unrealistic as to cast doubt on its entire presentation in this proceeding.” Judge MacKinnon, dissenting as to the adjudged insufficiency of the second reason, yet deeming the first not enough to justify the Board’s action, stated: “The length of time appellants would be outside the Board’s supervision is not sufficient to justify refusal of their request on this ground.” There therefore exists this respected difference of opinion with the writer’s view that even though the first reason were to be considered alone there would be a legitimate governmental interest, and a sufficient relationship of the prohibited conduct to the objectives of parole, as to justify the refusal of the requested permission under the circumstances, and that such refusal was neither arbitrary, capricious nor unreasonable.

IY

But aside from any question concerning the first reason assigned by the Board for refusal of the permission to travel, the Board’s second reason either independently or supplementally was sufficient to justify the refusal of permission. Such refusal was in adherence to the stated policy that “the Board will not approve foreign travel to an area as to which the Secretary of State, acting within his foreign relation responsibilities, has determined that such travel is not in the national interest of the United States.

' Appellants argue that such policy and action are outside the competence of the Board and disregard the decision of this court in Lynd v. Rusk, 128 U.S.App.D.C. 399, 389 F.2d 940 (1967). We do not agree. Both this court in Lynd and the Supreme Court in United States v. Laub, 385 U.S. 475, 87 S.Ct. 574, 17 L.Ed.2d 526 (1967), recognized the validity of area restrictions established by the Secretary of State, and the limitations expressed in' both cases on the effects of these restrictions are inapplicable here. We are not concerned with the denial of a passport nor with criminal penalties allegedly arising from civil regulations; but rather with the focused problem of whether the Board of Parole has authority to restrain a parolee pursuant to a general policy from traveling to restricted areas of the world when such travel is deemed by the Secretary of State to be contrary to the national interest. This power is not negated by “the general principle that authority committed to one agency should not be exercised by another”. The authority to determine the advisability and extent of travel by parolees has been committed to the Parole Board. In making that determination public policy and public interests are not irrelevant. 18 U.S.C. § 4203, supra.

When the case was last before this court there had been merely an informal advice that the Department of State was of the view that insofar as it could perceive there was no basis for its determining that appellants’ proposed travel to North Vietnam would be in the national interest of the United States within the meaning of 22 C.F.R. § 51.-73. The record now establishes positively that the Secretary of State, at the time of the final action of the Board and before the summary judgment appealed from was entered by the District Court, did not consider travel to Hanoi by the Berrigans to be in the interest of the United States. The Parole Board, having exercised its statutory discretion to establish as a general rule that parolees would not be allowed to travel to certain foreign countries, and having permitted an exception when the objective, reasonable tests of 22 C.F.R. § 51.73 are met, should not be foreclosed from deferring the application of that regulatory measurement to the agency which created and best understands it. Thus any deficiency in the record heretofore before this court has been corrected and increased support furnished for the view that the Board’s position should be upheld.

While as argued by appellants “the Board has not been given the power to enforce the foreign policy of the United States”, it is invested with the power and responsibility of reasonably supervising the conduct of parolees. In exercising that power it had the "right to consider all relevant factors, including the legality of the travel requested' as well as established public policy.

In view of the discretion of the Board, ’uncontroverted facts demonstrate that appellees were entitled to summary judgment as a matter of law and the court below did not err in so holding.

Affirmed.

BAZELON, Chief Judge,

dissenting:

When this case was before us on a motion for a temporary restraining order we were at pains to point out that “the authority — if any — of the Department of State to grant or deny its permission [for appellants’ trip] is not at issue.” What is at issue is the authority of the Parole Board to impose restrictions on the constitutional right to travel. Whatever may be the scope of that authority in the ordinary case, where, as here, the Board seeks to interfere with activities involving the expression of political and social views, it must show a compelling need for the particular restriction it seeks to invoke. No such need was shown in the prior proceeding and none has been shown here. Accordingly, I would reverse the decision of the District Court and enjoin the Parole Board from withholding its approval of appellants’ travel.

      . Berrigan v. Sigler, 154 U.S.App.D.C. 334, 475 F.2d 918 (1973). But see Sigler v. Berrigan, 410 U.S. 902, 93 S.Ct. 952, 35 L.Ed.2d 266 (1973).

      . Berrigan v. Sigler, 358 F.Supp. 130 (D.D.C.1973).

      . See United States v. Moylan, 417 F.2d 1002 (4th Cir. 1969), cert. denied, 397 U.S. 910, 90 S.Ct. 908, 25 L.Ed.2d 91 (1970); United States v. Eberhardt, 417 F.2d 1009 (4th Cir. 1969), cert. denied, 397 U.S. 909, 90 S.Ct. 907, 25 L.Ed.2d 90 (1970). See also United States v. Berrigan, 283 F.Supp. 336 (D.Md.1968).

      . This and other conditions were identical in the cases of both parolees except for the references to different home districts, as were the other conditions usual under such circumstances. Father Philip Berrigan’s home district was Maryland; Father Daniel Berrigan’s the Southern District of New York.

      . Philip Berrigan had been given permission to travel to the District of Columbia and to Los Angeles; Daniel Berrigan to Pennsylvania, Illinois, Hawaii, Prance, Sweden, England, Japan and Ireland.

      . Jurisdiction was premised upon the First Amendment to the United States Constitution, the Administrative Procedure Act, 5 U.S.C. § 701, et seq., and 28 U.S.C. §§ 1331, 1361 and 2201.

      . 475 F.2d at 920.

      . Sigler v. Berrigan, 410 U.S. 902 (1973), supra.

      . Berrigan v. Sigler, 358 F.Supp. 130 (D.D.C.1973), supra.

      . It is true that in the application for Supreme Court intervention the Solicitor General emphasized procedural aspects by asserting that “[a] stay of the order of the court of appeals should therefore be granted until a hearing can be held in an orderly fashion to determine the legal and factual merits of respondents’ claims and' until any appeals from the district court’s decision after such a hearing or trial can be resolved.” But the Solicitor General in his application also called attention to the view of the majority of the panel considering the restraining order that “the kind of delicate diplomatic determination [the Board had indulged in] is properly the province of the Secretary of the State”, and he argued as further ground for a stay by the Supreme Court that opportunity should be afforded for further consideration whether the Board of Parole may in fact have inadvertently made a judgment inconsistent with authoritative foreign policy considerations. There was before the district court at the time of its final decision an authoritative answer to this question supportive of the position of the Board, as hereafter will be more particularly seen. Moreover, the appellants at the time themselves regarded the ruling the Supreme Court had been requested by the Solicitor General to make as something more than merely procedural, for they requested oral argument before that court on the ground that “a stay would amount to a reversal on the merits.”

      . Industrial Bank of Washington v. Tobriner, 132 U.S.App.D.C. 51, 405 F.2d 1321 (1968); Ross-Whitney Corp. v. Smith Kline & French Labs., 207 F.2d 190 (9th Cir. 1953); Doeskin Prods., Inc. v. United Paper Co., 195 F.2d 356 (7th Cir. 1952); Chicago Great W. Ry. Co. v. Chicago Burlington & Quincy R. Co., 193 F.2d 975 (8th Cir. 1952); Benson Hotel Corp. v. Woods, 168 F.2d 694 (8th Cir. 1948). See also 11 Wright & Miller, Federal Practice & Procedure, Civil § 2962 at pp. 630-631 (1973). Cf. Deckert v. Independence Shares Corp., 311 U.S. 282, 61 S.Ct. 229, 85 L.Ed. 189 (1940), and Yablonski v. United Mine Workers of America, 147 U.S.App.D.C. 193, 454 F.2d 1036 (1971), cert. denied, 406 U.S. 906, 92 S.Ct. 1609, 31 L.Ed.2d 816 (1972), involving rulings on the merits in significantly different context. Another illustration of this point may be found in Sobell v. Reed, 327 F.Supp. 1294 (S.D.N.Y.1971), strongly relied upon by appellants on another aspect of the case (see p. 520 infra), for there a motion for preliminary injunction had been denied by the district court, its ruling affirmed by the Court of Appeals and interim relief refused by a justice of the Supreme Court; yet on the merits following this, a permanent injunction was granted.

      . “(2) Consolidation of hearing with trial on merits. Before or after the commencement of the hearing of an application for a preliminary injunction, the court may order the trial of the action on the merits to be advanced and consolidated with the hearing of the application. . . .” See Industrial Bank of Washington v. Tobriner, 132 U.S.App.D.C. 51, 405 F.2d 1321 (1968), supra.

      . See United States v. Washington Post Company, 144 U.S.App.D.C. 321, 446 F.2d 1322 (1971) ; Ibid., 144 U.S.App.D.C. 326, 446 F.2d 1327 (1971).

      . Cf. New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971), affirming 446 F.2d 1327.

      . While the time of the trip for which the original invitation to the Berrigans had expired, the record discloses that such invitation later was extended indefinitely. Although Daniel Berrigan’s term of parole has now expired, that of the other appellant continues.

      . This is aside from the argument of the government that our prior decision was one which oi'dinarily would seek merely to maintain the staMis quo pending a full determination on the merits, “for which the government had less than twenty four hours to prepare argument, which was decided by this court within one day [after argument] and the execution of which was stayed by the United States Supreme Court.”

      . Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1968); United States v. Laub, 385 U.S. 475, 87 S.Ct. 574, 17 L.Ed.2d 526 (1967); Zemel v. Rusk, 381 U.S. 1, 85 S.Ct. 1271, 14 L.Ed.2d 179 (1965); Aptheker v. Secretary of State, 378 U.S. 500, 84 S.Ct. 1659, 12 L.Ed.2d 992 (1964); Kent v. Dulles, 357 U.S. 116, 78 S.Ct. 1113, 2 L.Ed.2d 1204 (1958).

      . “Appellant also asserts that the Secretary’s refusal to validate his passport for travel to Cuba denies him rights guaranteed by the First Amendment. His claim is different from that which was raised in Kent v. Dulles, supra, and Aptheker v. Secretary of State, supra, for the refusal to validate appellant’s passport does not result from any expression or association on his part; appellant is not being forced to choose between membership in an organization and freedom to travel. Appellant’s allegation is, rather, that the ‘travel ban is a direct interference with the First Amendment rights of citizens to travel abroad so that they might acquaint themselves at first hand with the effects abroad of our Government’s policies, foreign and domestic, and with conditions abroad which might affect such policies.’ We must agree that the Secretary’s refusal to validate passports for Cuba renders less than wholly free the flow of information concerning that country. While we further agree that this is a factor to be considered in determining whether appellant has been denied due process of law, we cannot accept the contention of appellant that it is a First Amendment right which is involved. For to the extent that the Secretary’s refusal to validate passports for Cuba acts as an inhibition (and it would be unrealistic to assume that it does not), it is an inhibition of action. There are few restrictions on action which could not be clothed by ingenious argument in the garb of decreased data flow.” (381 U.S. at 16-17.)

      . Aptheker v. Secretary of State, 378 U.S. 500, 507, 84 S.Ct. 1659, 12 L.Ed.2d 992 (1964), supra, recognizes that freedom of association is itself guaranteed in the First Amendment. It must be noted, however, that the ban on travel was there struck down not because of any prospective restriction of association at the destination of the travel, but because of the overbreadth of the statute; the freedom of association referred to there was association with other members of an organization in this country which, if given up, would have avoided the application of the overly broad statutory provision.

      . See Shapiro v. Thompson, supra, n. 15, 394 U.S. at 630, n. 8; United States v. Laub, 385 U.S. 475, 481, 87 S.Ct. 574, 17 L.Ed.2d 526 (1967); United States v. Guest, 383 U.S. 745, 760, n. 17, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1966); Zemel v. Rusk, 381 U.S. 1, 14-15, 85 S.Ct. 1271, 14 L.Ed.2d 174 (1965); Aptheker v. Secretary of State, 378 U.S. 500, 505, 84 S.Ct. 1659, 12 L.Ed.2d 992, (1964); Kent v. Dulles, 357 U.S. 116, 125-127, 78 S.Ct. 1113, 2 L.Ed.2d 1204 (1958). See also Lynd v. Rusk, 128 U.S.App.D.C. 399, 403-404, 389 F.2d 940, 944-945 (1967); Worthy v. Herter, 106 U.S.App.D.C. 153, 155, 270 F.2d 905, 907, cert. denied, 361 U.S. 918, 80 S.Ct. 255, 4 L.Ed. 186 (1959); Shachtman v. Dulles, 96 U.S.App.D.C. 287, 290, 225 F.2d 938, 941 (1955); Worthy v. United States, 328 F.2d 386, 392 (5th Cir. 1964).

      . When the case was before this court preliminarily it was said “that the Parole Board’s refusal to approve appellants’ proposed visit to North Vietnam interferes with their right to travel and their First Amendment right to freedom of association”. In a very general sense the latter indication was accurate, since the prohibition of travel would as an incident involve a restriction on association. But if there were no right to travel to North Vietnam, there would be no right of association there in the constitutional sense, as rendered clear by Zemel v. Rusk, supra. We find specious the appellants’ argument that Kleindienst v. Mandel, 408 U.S. 753, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972), is to the contrary, for in Mandel, it was recognized that the rights asserted in Zemel v. Rusk, were those of the passport applicant himself rather than those of the American academics who had invited the applicant to participate with them in discussion in the United States. To emphasize the contrast, the court referred to other cases which, as Zemel v. Rusk did, dealt with action or the power to control physical movement. Sobell v. Reed, 327 F.Supp. 1294 (S.D.N.Y.1971), supra, is neither apposite on its facts nor persuasive in its generalizations going beyond them to the contrary. There the court found with considerable support in the record that the real purpose, effect and intent of a restriction against the travel of a parolee, was to limit the First Amendment right of free speech and assemblage, and applied First Amendment criteria to mark the invalidity of such restriction. There is no such factual indication here.

      . 18 U.S.O. § 4203 provides in part:
      “(a) If it appears to the Board of Parole from a report by the proper institutional officers or uxron application by a prisoner eligible for release on parole, that there is a reasonable probability that such prisoner will live and remain at liberty without violating the laws, and if in the opinion of the Board such release is not incompatible with the welfare of society, the Board may in its discretion authorize the release of such prisoner on parole.
      “Such parole shall be allowed in the discretion of the Board, to return to his home, or to go elsewhere, upon such terms and conditions, including personal reports from such paroled person, as the Board shall prescribe, and to remain, while on parole, in the legal custody and under the control of the Attorney General, until the expiration of the maximum term or terms for which he was sentenced.”

      . 28 O.F.R. §§ 2.28-2.32. Section 2.28 with reference to travel by parolees provides in part as follows:
      “Except as otherwise provided in this section, it is a general rule of the Board that a parolee may travel outside his supervision district only with the prior approval of the Board. Travel outside a district without prior Board approval may be authorized by a probation officer subject to the following-described limitations
      “(a) Board approval shall be required for vacation trips outside the district.
      “(b) Board approval shall be required for recurring travel outside the district, except in cases involving parolees who cross district boundaries to engage in or seek employment or for shopping or recreation, if such travel is not more than 50 miles from the district line.
      “(c) Board approval shall be required for travel outside the continental limits of the United States, including travel or work aboard ship.
      “(d) Board approval shall be required in any case in which specific travel conditions have been imposed upon the parolee by the Board. ...”

      . "... [T]he right to travel is protected by the Constitution, being a part of the right to liberty. But the simple, succinct phrases of the Bill of Rights, indestructible protections to some of the fundamentals of our way of life, can be, and often are, expanded by rhetorical inflation beyond all semblance to the realities with which they were meant to deal.” Worthy v. Herter, 106 U.S.App.D.C. 153, 155, 270 F.2d 905, 907-908, cert. denied, 361 U.S. 918, 80 S.Ct. 255, 4 L.Ed.2d 186 (1959), supra.

      . For example, the Attorney General may extend the limits of the place of confinement by a prisoner as to whom there is reasonable cause to believe he will honor his trust by authorizing him under prescribed conditions to visit specifically designated places for a period of not exceeding 30 days or to work at said employment or to participate in a training program in the community on a voluntary basis while continuing as on provisions of the institution or facility; and extensions may be granted for the reestablishment of family and community ties or for other significant reason consistent with the public interest. 18 U.S.O. § 4082 as amended. The most recent amendment continued the progress of statutory liberalization by authorizing extensions for “significant reason” in lieu of “compelling reason” as the statute formerly read. Act of Dec. 28, 1973, 87 Stat. 907 (1974).

      . "... With respect to travel either within the United States or outside the United States, the Parole Board recognizes the First Amendment rights of parolees. Board policy is to permit the parolee full exercise of such rights, subject to the necessary limitations that a parolee not engage, or propose to engage, in criminal conduct, or other activities clearly incompatible with the conditions of parole. In this connection, where a borderline situation is presented, the Board must perforce make an ad-hoc determination under all the known factors or circumstances of the case, whether to approve the particular travel application.
      “ . With respect to travel outside the United States, the Parole Board policy, in the case of a parolee whose representations appear to be bona fide, and who the Parole Board considers will not abscond, is to allow such travel, subject to this exception : The Board in the exercise of its statutory discretion has determined not to permit a parolee to travel to any area where the Board totally lacks any official means of communication with the parolee in the discharge of its responsibilities, or of ascertaining, in the discharge of its responsibilities, whether activities engaged in there by the parolee are consistent with the terms of parole and in particular, the representations made to the Parole Board by the parolee in securing its approval for the travel.
      “ . . . [T]he Board will not approve foreign travel to an area as to which the Secretary of State, acting within his foreign relations responsibilities, has determined that such travel is not in the national interest of the United States. ...”

      . Morrissey v. Brewer, 408 U.S. 471, 478, 483, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).

      . Hyser v. Reed, 115 U.S.App.D.C. 254, 259, 318 F.2d 225, 235 (en bane), cert. denied, 375 U.S. 957, 84 S.Ct. 446, 11 L.Ed.2d 315 (1963).

      . And not entirely irrelevant to public policy is the desirability of not so weakening the discretion and means for proper supervision on parole as to discourage its being granted by those having discretion in that matter, or to discourage the support of the public for appropriate liberality in such decisions.

      . 475 F.2d at 920.

      . 475 F.2d at 921.

      . 475 F.2d at 923.

      . Parole supervision often can be exercised effectively by means other than regular meetings or repeated communications and, indeed, my experience indicates that some of the most effective kind does not involve frequent contacts between parolees and parole officers. Reasonable conditions themselves, and a reasonable insistence upon compliance with them, have been found of beneficial effect both with reference to a particular parolee and with respect to others as well. Equally important is the preservation of apparent means for obtaining information concerning the conduct of parolees. Moreover, while individual situations must be considered, failure to adopt a general policy keyed to the broad necessities of the parole system, could only lead to a breakdown of that system and the involvement of the Board in myriad problems of subjective differentiation. I am mindful of some deprecation of the latter consideration that could be gathered from Washington Post Co. v. Kleindienst, 161 U.S.App.D.C. 75, 494 F.2d 994 (D.C.Cir. 2/21/74), 42 U.S.L.W. 2459, affirming, 357 F.Supp. 779 (D.D.C.1972). See also Washington Post Co. v. Kleindienst, 357 F.Supp. 770 (D.D.C.1972), ibid, 406 U.S. 912, 92 S.Ct. 1761, 32 L.Ed.2d 112 (1972), and 477 F.2d 1168 (D.C.Cir. 1973). But I deem the facts and controlling principles of the present case to be essentially different. Here the Board in the exercise of its statutory discretion had determined as a rule of general application not to permit parolees to travel to any area where the Board totally lacked any efficient means to communicate with them, to ascertain whether activities engaged in there by the parolees are consistent with the terms of parole and the representations made to the Board by the parolees in securing approval for travel, or to reestablish their custody in the event that they do engage in illegal activities. Too, the Board’s general rule recognizes, and not without reason, that to allow a parolee to go completely beyond any effective control could itself encourage violative conduct. Departure from that policy in the case of the Berrigans would have been disruptive in principle and even on the basis of subjective evaluation unjustified, in view of the fact that their strong feeling on the war and Vietnam already had led them into criminal violations. Earlier Board approval of travel to Hanoi by parolee James R. Hoffa has been referred to by appellants in implied justification for similar leave to them. The proposed trip by Hoffa was cancelled when the State Department refused to validate a passport for him and the Board then conceded that such travel had been improvidently granted. If the Hoffa episode was disruptive or an embarrassment for the parole system, the granting of similar leave to the appellants would only be a magnification of these unjustifiable effects. These are some of the considerations which impel the writer to believe that the requirements of reasonable supervision in themselves justified the denial of the requested leave as determined by the court below. 358 F.Supp. at 138-140.

      . Affidavit of January 19, 1973, of appellee Sigler. This position was reaffirmed in the Board’s February 2, 1973 en banc reconsideration of appellants’ request after the Board had been informed by letter that “the Secretary of State has concluded that the proposed travel of Reverand Philip Berrigan and the Reverand Daniel Berrigan to North Vietnam is not in the national interest of the United States.” See 22 C.F.R. § 51.73

      . Textile & Apparel Group v. FTC, 133 U.S.App.D.C. 353, 410 F.2d 1052, 1057, cert. denied, 396 U.S. 910, 90 S.Ct. 223, 24 L.Ed.2d 185 (1969), relied upon by appellants to demonstrate that the Board should have disregarded the determination of the Secretary of State in reaching its decision.

      . Based upon a representation of the United States Attorney at the time.

      . The record contains a copy of a letter dated February 2, 1973, from Barbara M. Watson of the Bureau of Security and Consular Affairs of the Department of State to the Chairman of the United States Board of Parole reading: “In response to your letter of February 1, 1973, I am authorized to advise you that the Secretary of State has concluded that the proposed travel of Reverend Philip Berrigan and the Reverend Daniel Berrigan to North Viet Nam is not in the national interest of the United States.
      “In reviewing the matter at your request, we have applied the criteria of Title 22, Code of Federal Regulations, Section 51.73.”

      . “However, the second ground is ‘facially legitimate and bona fide’ within Kleindienst v. Mandel, 408 U.S. 753, 769-770, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972), and must be sustained.” (Dissenting opinion of Judge MacKinnon, 475 F.2d at 923-924.)

      . In different context, yet with point here, this court has said that “[t]he law presumes implied power in a government agency — unless precluded by a contrary provision expressed or clearly discernible in its organic statute — to cooperate with other government agencies concerning intermesh of jurisdiction or other matters of mutual concern.” Municipal Intervenors Group v. Federal Power Com’n., 153 U.S.App.D.C. 373, 376, 473 F.2d 84, 90 (1972).

      . See opinion of the court, supra at 517.

      . Berrigan v. Sigler, 475 F.2d 918, 920 (1973) (Bazelon, C. J., concurring).

      . Id. at 920, 921.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    UNITED STATES of America v. Larry C. McBRIDE, Appellant. UNITED STATES of America v. Kenneth E. RICHARDSON, Appellant.
    Nos. 73-1286, 73-1287.
    United States Court of Appeals, District of Columbia Circuit.
    May 8, 1974.
    Marsha E. Swiss, Washington, D. C. (appointed by this court), was on the brief for appellants.
    Earl J. Silbert, U. S. Atty., with whom John A. Terry, John E. Drury, III, and William I. Martin, Asst. U. S. Attys., were on the brief for appellee.

      Before BAZELON, Chief Judge, LEVENTE! AL, Circuit Judge, and SOLOMON, United States Senior District Judge for the District of Oregon.

       Sitting by designation pursuant to Title 28, U.S.O. § 294(d).

   PER CURIAM:

In these appeals the central issue is whether the conviction of appellant McBride for armed robbery must be reversed because of the testimony of Mrs. Mazie Jackson as to how she identified him from the Robbery Squad photograph books. The contention is that the identification is flawed as a matter of law because it was not made until she found, from an index in the back of the photograph book, that the subject’s name was Larry McBride, previously given to her as the name of her assailant by a bystander at the scene of the offense.

The testimony of Mrs. Jackson was that she recognized the picture of appellant McBride as the gunman as soon as she came to the picture in the book; that this came after she had looked through many pictures, in two or three books (Tr. 9-10). However, before she announced her discovery she looked on a sheet stuck on the back page of the binder which listed all the numbers, each photograph having a number, and gave the names for each number. She saw the name of appellant McBride and called out to another victim, Mrs. Hill, and to her daughter, both of whom were also looking through the book in another room, “No need looking any further. I think I found him.”

The trial judge struck any testimony of Mrs. Hill and the daughter as to their identification of the photograph on the ground of impermissible suggestiveness, in that they had been “tipped” by Mrs. Jackson. However, he permitted Mrs. Jackson to testify as to her photographic identification, ruling that it was not the product of impermissible suggestiveness and did not reflect an irreparable erroneous identification. He credited Mrs. Jackson’s testimony that she had picked out McBride’s photograph before looking at the names in the back of the book, and that she made this photographic identification on the basis of her observation of McBride at the time of the robbery (the lighting conditions and time intervals having been such as to permit a firm identification).

The trial court’s findings of independent source and of lack of taint of the photographic identification by her hearsay statement of the bystander are entitled to weight, having been based in significant measure on the complainant’s demeanor as a witness. There was also other identification evidence by another, witness, which had weaknesses taken by itself but which contributed to a conclusion that there was no likelihood of misidentification. We agree that overall there was no substantial likelihood of misidentification. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).

However, we are troubled by the revelation that a witness brought to police headquarters to identify photographs may in fact be able to proceed backwards, from the name of a suspect that has been given to him. . This generates issues of suggestiveness and additional problems that may in another case preclude testimony. We suggest that the police and their counsel review the situation with the prosecutor’s office and seek to determine whether the index can be kept in such a way as to be unavailable to the persons called to make identification until after the photograph has been identified.

The conviction of appellants for assault with a dangerous weapon (counts 3 and 6 as to Richardson, and count 6 as to McBride) are vacated, because they are included in the convictions of armed robbery. In all other respects the judgments are affirmed.

So ordered.


text:
    Samuel SHAPIRO and Bella Shapiro, Appellants, v. SECRETARY OF STATE et al.
    No. 73-2260.
    United States Court ol Appeals, District of Columbia Circuit.
    Argued March 1, 1974.
    Decided May 15, 1974.
    Rehearing Denied July 17, 1974.

      Nathan Lewin, Washington, D. C., with whom Herbert J. Miller, Jr. and Martin D. Minsker, Washington, D. C., were on the brief, for appellants.
    Robert S. Watkins, Atty., Dept, of Justice, with whom Scott P. Crampton, Asst. Atty. Gen., Earl J. Silbert, U. S. Atty. and Robert S. Rankin, Asst. U. S. Atty. were on the brief, for appellees. Arnold T. Aiken's, Asst. U. S. Atty. also entered an appearance for appellees.
    Before FAHY, Senior Circuit Judge, and LEVENTHAL and ROBINSON, Circuit Judges.
   PER CURIAM:

Appellant Samuel Shapiro, a citizen of Israel, sought to enjoin his extradition by the United States, or, in the alternative, to enjoin a jeopardy assessment made against him by the Commissioner of Internal Revenue. Holding that it lacked jurisdiction, the District Court denied a motion for preliminary injunction and dismissed the complaint. Because we believe that the District Judge acted prematurely in dismissing the complaint against the Commissioner insofar as appellant sought to enjoin the jeopardy assessment, we remand the case for further proceedings in that regard.

I. BACKGROUND

Sometime after coming to this country during 1970, appellant was indicted in Israel for securities fraud. The Israeli government sought his extradition, and appellant litigated the extradition request in the Southern District of New York. The District Court there found him extraditable and the Second Circuit affirmed. Thereafter, appellant petitioned the Supreme Court for a writ of certiorari and also began negotiations with the Israeli government, in which the Department of State acted as intermediary. Appellant offered to forego further litigation, to withdraw his petition for certiorari, and to submit voluntarily to extradition; in return, he asked: (1) to remain in the United States until the birth of his child, expected in the fall of 1973; (2) to receive a speedy trial in Israel; and (3) to be free on bond before and during trial. After a dispute over the bail question Israel agreed to appellant’s requests, and appellant withdrew his petition for certiorari.

Appellant’s wife gave birth to a daughter on November 15, 1973, and appellant so notified the Department of State. The Secretary of State then signed a warrant of extradition and appellant agreed to surrender to the United States Marshal in New York on December 9, 1973, for immediate extradition. Appellant also arranged to transfer to the New York branch of the Bank Leumi of Israel certain funds then on deposit in several New York banks. These funds were to be used as bond for appellant’s freedom in Israel under his arrangement with the Israeli government. On December 6, 1973, however, one business day before appellant’s extradition, the Internal Revenue Service (IRS) imposed a jeopardy assessment on appellant, and served “Notices of Levy” on the New York banks in which appellant maintained accounts or safe deposit boxes. Appellant claims these levies dis-trained the money which he planned to use as bond in Israel.

Following the IRS’s actions, appellant received from Israel a one-week postponement of his extradition. During this week, he brought suit in the District Court for preliminary and permanent injunction against either extradition or the action of the IRS. In response, the Government moved to dismiss the complaint for failure to state a cause of action, and for lack of subject matter jurisdiction. Initially the District Court issued a temporary restraining order against the extradition, but did not restrain the levies on appellant’s funds. After filing his complaint, appellant served interrogatories on the IRS, seeking information about the nature of the tax claim against him and the investigation underlying the claim. The IRS reluctantly responded to several of appellant’s interrogatories, but resisted others as irrelevant or premature. In particular the IRS asserted that it could withhold all information about the nature of its claim against appellant for sixty days, i. e., until required to serve a notice of deficiency. The IRS further contended that the District Court lacked jurisdiction to investigate the claim underlying the jeopardy assessment, or, indeed, any aspect of the asserted tax liability. The IRS answered the interrogatories on December 19, 1973, and on December 20, 1973, the District Judge announced that he would render a decision at 3:00 p. m. the following day, December 21, 1973. On December 21, 1973, at 12:20 p. m., appellant’s attorney received a supplement to the answers previously given by the IRS to the interrogatories. This supplement, containing the formal notice of deficiency that the IRS had previously withheld, revealed for the first time the basis of the assessment against appellant. ' The Commissioner asserted that appellant owed taxes for income derived from “activities as a dealer in narcotics. . . . ” Thereafter, at 3:00 p’. m., the District Judge convened the previously announced hearing, stated from the bench that he lacked jurisdiction of the subject matter, and, accordingly, denied the motion for preliminary injunction and dismissed the complaint. Appellant appeals this decision.

II. THE EXTRADITION

Although appellant sought to enjoin the IRS in the District Court, he asked, in the alternative, that the court enjoin his extradition. Because the Second Circuit has determined that appellant is extraditable, and because the Secretary of State has signed a valid warrant of extradition, the District Court properly concluded that it lacked jurisdiction to enjoin appellant’s extradition. Subject to judicial determination of the applicability of the existing treaty obligation of the United States to the facts of a given case, extradition is ordinarily a matter within the exclusive purview of the Executive. Accordingly, we affirm the trial judge’s conclusion that the extradition should not be enjoined.

III. THE JEOPARDY ASSESSMENT

As to appellant’s complaint to enjoin the jeopardy assessment made by the IRS, it appears that the dismissal of the action was' premature. The District Court has limited jurisdiction to entertain a suit for injunction against the Commissioner, to whom we refer interchangeably with the IRS, and it is understandable, in the circumstances in which the problem was presented for decision, that the District Judge decided that Shapiro had not met -the strict tests for that jurisdiction. On reflection, however, we think that Shapiro should have been indulged a greater opportunity to do so.

A. Statutory and Judicial Background.

Ordinarily, the Commissioner cannot attempt to collect an asserted tax deficiency until he has mailed á notice of deficiency to the taxpayer and the period during which the taxpayer may file suit in the Tax Court has expired. And if the taxpayer files suit, the collection is further enjoined until the final decision of the Tax Court. The single exception to this procedure comes when the Commissioner “believes that the assessment or collection of a deficiency will be jeopardized by delay .in that event “he shall . immediately assess such deficiency . . ., and notice and demand shall be made by the [Commissioner] for the payment thereof.” This is the jeopardy assessment procedure that the Commissioner used against Shapiro. Once the Commissioner has made a jeopardy assessment, he must notify the taxpayer and demand payment of the asserted deficiency. If the taxpayer neglects or refuses to pay within ten days after notice and demand, the Commissioner may collect the tax by seizing property of the taxpayer. Moreover, “[i]f the Secretary [of the Treasury] or his delegate makes a finding that the collection of such tax is in jeopardy, notice and demand for immediate payment of such tax may be made by the Secretary or his delegate and, upon failure or refusal to pay such tax, collection thereof by levy shall be lawful without regard to the 10-day period provided in this section.”

A taxpayer against whom a jeopardy assessment is made must generally pay the asserted deficiency prior to litigation, and cannot obtain an injunction against the Commissioner from a district court. There is, however, a single limited exception to this general rule. In Enochs v. Williams Packing & Navigation Co., the Supreme Court held that if equitable jurisdiction would otherwise exist — due to extraordinary circumstances causing irreparable harm to the taxpayer, for which the taxpayer has no adequate remedy at law — and if the taxpayer can show, on the basis of the facts available at the time of trial, that the Commissioner could not ultimately establish his claim, then a district court may issue an appropriate injunction. This exception is quite narrow:

Only if it is . . . apparent [ai the time of trial] that, under the most liberal view of the law and the facts, the United States cannot establish its claim, may the suit for an injunction be maintained. Otherwise the District Court is without jurisdiction, and the complaint must be dismissed.

The rationale of this judicially-created exception to the anti-injunctive provision of the Internal Revenue Code is that district courts should be able to enjoin an asserted deficiency which is in fact an “exaction in the guise of a tax,” if the exaction will cause the taxpayer irreparable harm.

When an asserted deficiency is an exaction rather than a tax, there can be no valid collection purpose which is stymied by the court’s intervention. Accordingly, the Commissioner can assert no interest that outweighs the taxpayer’s interest in avoiding irreparable harm.

B. Application of the Enochs exception to the present case.-

The principal focus of Shapiro’s complaint is on facts that support a claim that his case contains the “special and extraordinary circumstances” that fulfill the equity half of the Enochs test for district court jurisdiction to enjoin a jeopardy assessment. As to the other half of the Enochs requirement, a showing that the IRS could not establish its claim, Shapiro’s strongest argument to the District Court was that the actions of the IRS, when viewed in the whole context of pre-assessment events, constituted an illegal deprivation of his property without due process. In view of Phillips v. Commissioner, the District Judge rejected the due process argument, and reluctantly granted the Government’s motion to dismiss for lack of jurisdiction.

1. The District Judge correctly rejected Shapiro’s due process argument with respect to the jeopardy assessment. But see footnote 12 as to the levy. In Phillips, the Supreme Court held that summary tax collection procedures are not violative of due process because the taxpayer has an opportunity for a subsequent hearing:

Where only property rights are involved, mere postponement of the judicial enquiry is not a denial of due process, if the opportunity given for the ultimate judicial determination of the liability is adequate. Delay in the judicial determination of property rights is not uncommon where it is essential that governmental needs be immediately satisfied.
* * * . * * *
The procedure provided in [the Code] satisfies the requirements of due process because two alternative methods of eventual judicial review are available to the transferee. (Citations omitted.)

Appellant’s attempt to avoid Phillips is unavailing. Although he is to be extradited for trial in Israel, it is unclear at this time that Shapiro will be unable to utilize his right to the subsequent judicial review that Justice Brandéis found in Phillips a sufficient protection for a taxpayer’s right to due process. Of course, if the Tax Court should deny appellant a continuance until he can return to this country, or if the Immigration and Naturalization Service should refuse to allow appellant to re-enter the United States to litigate in the Tax Court, then the question of deprivation of due process may arise. But these events may never transpire, and unless and until they do we are not called upon to rule whether the procedures followed by the IRS fall outside the ambit of the Supreme Court’s holding in Phillips, as recently reaffirmed in Fuentes v. Shevin.

2. Notwithstanding the obstacle to relief posed by Phillips, there is another theory that might validate Shapiro’s contention that the Commissioner will be unable to establish his claim for a deficiency. Case law in other circuits has established conclusively that the IRS cannot prevail when its asserted claim is “entirely excessive, arbitrary, capricious, and without factual foundation. . . .” Lucia v. United States, 474 F.2d 565, 573 (5th Cir. 1973) (en banc); Pizzarello v. United States, 408 F.2d 579 (2d Cir. 1969). Thus, if Shapiro can show, or if the trial court can determine from factual submissions of the Commissioner, that there is no factual foundation for the allegation that Shapiro was a narcotics dealer, or that the Government’s calculation of the deficiency has no rational basis, then the District Court could find that the Government could not ultimately establish its claim.

3. Because he filed his complaint prior to the IRS’s revelation of the basis and amount of its claim against him, Shapiro could not deny in his complaint that he was a narcotics dealer nor did he allege that the IRS’s claim was invalid because it was árbitrary and excessive. But in the circumstances, such allegations are fairly implicit in the complaint and, broadly construed, the complaint should have been sufficient to withstand the Government’s motion to dismiss. Certainly the record contained no facts that would support any conclusion inconsistent with this view of the case. Accordingly, the District Judge might have allowed Shapiro an opportunity to discover more evidence, or he could have compelled the Commissioner to provide factual support for the asserted deficiency. Alternatively, if the District Judge found the original complaint insufficient, he could have allowed Shapiro to amend it after the Commissioner’s eleventh hour promulgation of the notice of deficiency. But the District Judge we think should not have dismissed the complaint on the bare record before him.

4. An effort by the District Court to discover the factual foundation for the IRS’s claim against a taxpayer is consistent with Enochs. Indeed, both Lucia and Pizzarello underscore the Supreme Court’s ruling in Enochs,

that the question of whether the Government has a chance of ultimately prevailing is to be determined on the basis of the information available to it at the time of suit. (Emphasis added.)

As to the extent of the necessary inquiry into the facts, Lucia and Pizzarello also provide some guidance to the District Judge. For instance, in both cases two central facts had already been established on the public record before the cases came to the District Court: both courts knew (1) that the taxpayer had owned an illegal gambling establishment, and (2) the method by which the IRS had calculated the asserted deficiency. Even with this information available to it, the Fifth Circuit in Lucia, sitting en banc, ruled unanimously that a fuller record was necessary for a proper determination whether the asserted deficiency was arbitrary and excessive. Accordingly, the court remanded the record to the District Court for further development :

Was the taxpayer accepting wagers during the entire period covered by the assessment? Are the Government’s figures based on realistic projections or were they merely derived, Mandrake-like, from a filament of evidence and subjected to a sleight-of-hand computation? Does the 40% factor used in the computation have any factual basis, or is it merely th.e product of an agent’s conjecture? Can the base day properly be assumed to be an average day for that week, much less for several years? Only after exploring all relevant considerations on remand will the District Court be able to determine whether the computative basis is so insufficient as to make the assessment an exaction in “the guise of a tax” rather than a legitimate tax on wagers.

On the other hand, in Pizzarello the Second Circuit acted without a remand. Where the Commissioner had asserted a large tax deficiency for several years of gambling income, but had determined this deficiency from only three days’ gambling receipts, the court ruled that the Government’s claim was excessive :

[T]here is no proof in the record before us that Pizzarello operated as a gambler for five years or that, even if he did so operate, his three-day average of April 12th-14th, 1962, represented his average daily business of the other 1,575 days. No court could properly make such inferences without some foundation of fact.
* * * * * *
. the indictment charged Pizzarello with operating a bookmaking establishment only from March 30, 1965, to April 15, 1965. Where the Government got the date that Pizzarello was accepting wagers from April 1, 1960, is unsupported either by the record or by affidavits. Moreover, while we recognize the difficulties faced by Treasury Agents, and the need to estimate in situations of this nature, wagers received on three consecutive days can hardly be said to be representative of wagers received over a five-year period, even assuming Pizzarello accepted wagers for as long as the Government contends.
* * * * -X- *
Because the District Director made-a totally excessive assessment, excessive because based on entirely inadequate information, collection should be enjoined, if equity jurisdiction otherwise exists. (Footnotes omitted.)

5. By its instant ruling, this court does not require the District Court to explore the matter in precisely the same manner as the District Court was instructed to do in Lucia, or as the Second Circuit did in Pizzarello. Every case is different and should be considered on its particular facts. But at the very least the District Court must obtain some evidence by which to judge whether the asserted deficiency was a tax or was so arbitrary and excessive as to be “an exaction in the guise of a tax.” While it is not probable that the Government created the deficiency out of whole cloth, it is equally true that “[the Government’s] burden [to show good faith] is not met by mere ‘protestations of good faith and conclusory statements of plaintiff’s tax liability. (Citation omitted.)”’ The District Court should therefore inquire whether there are any facts from which good faith may be inferred, and absent such facts, the judge should not dismiss the case in deference to any presumption in favor of the IRS.

IV. DISPOSITION

We therefore vacate the judgment dismissing the complaint for lack of jurisdiction, and remand the case to allow the District Court an opportunity to develop a record that adequately supports a ruling on the Government’s motion to dismiss. On remand the District Judge should examine the facts on which the Government bases its claim against Shapiro and determine its jurisdiction on the basis of these facts, in light of Lucia and Pizzarello. On remand, the judge may wish to reconsider his denial of preliminary injunction. If not, then the jeopardy assessments will stand while the record is developed.

Because the case is somewhat sensitive in nature, it may be that the District Judge will wish to examine some of the Commissioner’s information in camera. As we do not wish to force the Government to reveal on the public record such information as the names of informers, an in camera examination may be appropriate. This matter is within the discretion of the trial judge.

In remanding, it should be clear that we are satisfied that appellant’s situation meets the equitable irreparable injury component of the Enochs test. Appellant alleges and the Commissioner does not dispute that the jeopardy assessment and the levies have frozen the funds he intended to use as bond in Israel. It therefore appears that after extradition Shapiro will be incarcerated, an incarceration that will cause irreparable injury for which he has no remedy at law. To be sure, Shapiro has a remedy at law against the levy on his funds. But while he can pursue his remedy against the levies either during or after his probable incarceration, a mere restoration of his funds will not repair the injury caused by his imprisonment. Thus, if the District Judge finds that there is no factual foundation for the Commissioner’s actions, or that the amount of the asserted deficiency is totally excessive then he may enjoin the jeopardy assessment and the levy.

Affirmed as to dismissal of the Complaint insofar as it relates to execution of the extradition warrant, otherwise reversed and remanded for further proceedings consistent with this opinion.

      . In re Shapiro, 352 F.Supp. 641 (S.D.N.Y.1973) (District Judge sitting as extradition magistrate). Thereafter, appellant sought a writ of habeas corpus and another District Judge reviewed the findings of the magistrate. Shapiro v. Ferrandina, 355 F.Supp. 563 (S.D.N.Y.1973).

      . Shapiro v. Ferrandina, 478 F.2d 894 (2d Cir. 1973).

      . Shapiro had to compel response by motion to the District Court.

      . Of nine interrogatories, the IRS answered only three.

      . The allegations of narcotics dealing pertained to taxable year 1971. The notice also asserted a small deficiency based upon certain unexplained bank deposits made by appellant in 1970.

      . See United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 57 S.Ct. 216, 81 L.Ed. 255 (1936).

      . Our order of February 14, 1974, suspending the effectiveness, as therein stated, of this court’s denial of appellant’s application for a stay, was not intended to affect appellant’s extradition except as the Supreme Court might act with respect thereto.

      . When the Commissioner determines that a taxpayer has failed to pay the correct tax in a previous year, he may issue a notice describing the alleged deficiency. Int.Rev.Code § 6212(a).

      . Int.Rev.Code § 6213(a).

      . Int.Rev.Code § 6861(a). Once the Commissioner makes the jeopardy assessment, he has sixty days in which to mail a deficiency notice to the taxpayer. Int.Rev.Code § 6861(b).

      . Int.Rev.Code § 6331(a). By levy is meant “the power of distraint and seizure by any means.” Int.Rev.Code § 6331(b).

      . Int.Rev.Code § 6331(a). It should be noted that section 6331(a) requires that the Commissioner provide a taxpayer prior notice of the demand for payment. The power-to levy is inoperative until the subsequent “failure or refusal” of the taxpayer to pay the required amount. In the present case there are allegations that the Commissioner failed to provide the taxpayer the required notice prior to serving “Notices of Levy” on the taxpayer’s New York banks. If so, then the Commissioner may well have violated Shapiro’s right to due process. See, e. g.,
        Mrizek v. Long, 187 F.Supp. 830, 835 (N.D.Ill.1959) :
      . . . if plaintiffs are being thus deprived of their property by administrative action purporting to conform, but failing to conform, to the requirements of Section 6331, the plaintiffs have sufficiently alleged deprivation of property without due process of law in violation of the Fifth Amendment.
      If proven, this alleged failure by the IRS to adhere to the statute might well be sufficient basis for an injunction against the levies, assuming the presence of the other essentials of equitable jurisdiction. Certainly, such a failure would vitiate much of the good faith presumption accorded the IRS in these matters. See text, infra, at note 30. But absent an express finding of fact by the District Court, we are reluctant to lend dis-positive weight to the untested allegations in appellant’s brief.

      . Int.Rev.Code § 7421(a).

      . 370 U.S. 1, 82 S.Ct. 1125, 8 L.Ed.2d 292 (1962).

      . See also Miller v. Standard Nut Margarine Co., 284 U.S. 498, 52 S.Ct. 260, 76 L.Ed. 422 (1932).

      . Enochs, supra, 370 U.S. at 7.

      . Miller, supra, 284 U.S. at 509.

      . Id. at 509-510. See also Dows v. Chicago, 78 U.S. (11 Wall.) 108, 20 L.Ed. 65 (1870).

      . Miller, supra, 284 U.S. at 510.

      . 283 U.S. 589, 51 S.Ct. 608, 75 L.Ed. 1289 (1931).

      . Id. at 596-597.

      . 407 U.S. 67, 92 n. 24, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972).

      . As one judge has ruled in similar circumstances,
      On a motion to dismiss, [the Enochs test for jurisdiction] is applied only after the factual allegations of the complaint have been construed in a manner most favorable to the pleader. Under “the most liberal view of the law and facts” as deemed established by the pleadings, we are unable to say that the plaintiff has not met “the requirement of showing that the United States cannot under any circumstances prevail.” (Citations omitted.)’
      Monsky v. Fitzgerald, 297 F.Supp. 943, 946 (E.D.N.Y.1968).

      . Indeed, it is settled that “[f]or the purposes of a motion to dismiss, the material allegations of the complaint are taken as admitted.” Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 1849, 23 L.Ed.2d 404 (1969), citing Walker Process Equipment, Inc. v. Food Machinery & Chemical Corp., 382 U.S. 172, 174-175, 86 S.Ct. 347, 15 L.Ed.2d 247 (1965).

      . See Fed.R.Civ.P. 15 ; Bonanno v. Thomas, 309 F.2d 320, 322 (9th Cir. 1962).

      . 370 U.S. at 7.

      . In view of the holdings of the Second and Fifth Circuits that the IRS cannot prevail when its asserted deficiency was arbitrary and plainly excessive, we do not think Lucia and Pizzarello can fairly be confined to situations where it happens that the court had access to the facts and theory of the Government as developed in a prior criminal trial. The theory of Judge Weinstein in Monsky requires the Government to come forward in order to counter the complaint with a claim of lack of jurisdiction. And we note that Lucia was not based solely on the facts already known, for the appellate court remanded for further discovery.

      . 474 F.2d at 575.

      . 408 F.2d at 583-584. The Court in Pinzarello also held, in the alternative, that the IRS could not establish its claim because it had acted on the basis of illegally seized evidence. Id. at 585.

      . Monsky, supra, 297 F.Supp. at 944. See also United States v. CiCalese, 32 Am.Fed. Tax R.2d 73-5629 (E.D.Pa.1973).


text:
    UNITED STATES of America v. Cornelius GARNER, Appellant.
    No. 73-1177.
    United States Court of Appeals, District of Columbia Circuit.
    June 14, 1974.
    Dennis I. Meyer, Washington, D. C. (appointed by this court), was on the brief, for appellant.
    Harold H. Titus, Jr., U. S. Atty. at the time the brief was filed, John A. Terry, John T. Kotelly, and Joel DuBoff, Asst. U. S. Attys., were on the brief, for appellee.
    Before McGOWAN, ROBINSON and ROBB, Circuit Judges.
   PER CURIAM:

The appellant was tried on an indictment in three counts alleging that he unlawfully distributed heroin and other substances in violation of 21 U.S.C. § 841(a). The first count alleged the distribution of 8079 milligrams of heroin and other substances on October 28, 1971, the second count alleged the distribution of 8080 milligrams on October 30, and the third count, 9282 milligrams on November 5. After deliberating for an hour and twenty minutes the jury reported through its foreman that they found the defendant guilty on all three counts, (Tr. 77, Sept. 14) and when asked by the clerk “that is your verdict say you each and all?” they chorused “Yes”. (Tr. 78, Sept. 14.) When they were polled at the request of the defendant, however, the sixth juror to be interrogated responded “I find him guilty on one • of the counts.” (Tr. 79, Sept. 14.) The court then sent the jury back to the jury room to arrive at a unanimous verdict, (Tr. 79, Sept. 14) and thereafter they reported through their foreman that they found the defendant guilty on the first count and not guilty on the second and third counts. (Tr. 81, Sept. 14.)

On this appeal the appellant’s only point is “The failure of the trial court to properly instruct the jury on the issue of identification is prejudicial error where identification of the defendant, is one of the major issues in the case.” The court’s charge on the issue of identification was as follows:

Also, Ladies and Gentlemen of the Jury, you are instructed that the identity of the Defendant as the person who committed the crime or crimes is an essential element of every criminal offense. Therefore, the burden is on the Government to prove beyond a reasonable doubt not only the alleged crime was committed but also the Defendant was the person who committed the offense. You must be satisfied beyond a reasonable doubt of the identity, the identification of the Defendant as the person who committed the crime.
You are further instructed that it is not necessary for the Defendant to prove that another person may have committed the particular crime in question; nor is the burden upon the Defendant to prove himself innocent. The facts and circumstances have been introduced in evidence which raise a reasonable doubt as to whether the Defendant was the person who committed the offense in question, [sic] Then you should find the Defendant not guilty of the offense.
On the contrary, Ladies and Gentlemen of the Jury, should you find that the identification of the Defendant has been proven to you beyond a reasonable doubt, then you will find the Defendant guilty as charged. You may not find the Defendant guilty of the offense charged if the identification unless you find that the Government has proved beyond a reasonable doubt that the Defendant is the person who committed the offense, [sic] If the evidence in the case pertaining to identification has raised a reasonable doubt in your mind, then you must find the Defendant not guilty. On the contrary, if you find all of the testimony in the case proves to you beyond a reasonable doubt that the Defendant was the person who committed the offense in question, then you may find the Defendant guilty as charged. (Tr. 70-71, Sept. 14.)

At the conclusion of the court’s charge counsel to the defendant stated “I am satisfied with the instructions.” (Tr. 76, Sept. 14.) The appellant now contends however that the court should have gone further and given the instruction suggested in United States v. Telfaire, 152 U.S.App.D.C. 146, 469 F.2d 552 (1972).

The proof for the government was that on October 28, October 30 and November 5, 1971, as alleged in the indictment, Garner sold heroin to a police officer, Kenneth Johnson, who was working under cover. Johnson testified that several weeks before October 28 another police officer showed him a picture of the appellant who was identified as Mooehie. He said that on October 21 he had a conversation with Garner concerning narcotics. (Tr. 57, 59, Sept. 13.) He had seen Garner before then but had not had any conversation with him. (Tr. 57, 5, Sept. 13.) These meetings took place in the 4300 block of Eighth Street. (Tr. 5, Sept. 13.)

At about 9:00 o’clock on the evening of October 28 Johnson met Garner in the middle of the 4300 block of Eighth Street and asked if it was possible to make a purchase of heroin. Garner asked how much he wanted. Johnson said he wanted a quarter of a piece, meaning a quarter of an ounce. Garner said it would take a couple minutes and he then went into 4321-Eighth Street and came out with a tin-foil packet containing the narcotics, for which Johnson paid him $275. (Tr. 6, 7, Sept. 13.)

On October 30 at about 1:00 P.M. Johnson again saw Garner in the 4300 block of Eighth Street and asked him about getting another quarter of an ounce of heroin. Garner told Johnson to return at 5:00 o’clock, when he could make the transaction. (Tr. 11, 11A, 62, Sept. 13.) At 5:00 o’clock Johnson returned, “asked him if he had the stuff, and he said yes. He went into his house and came out with a tin-foil containing white powder.” (Tr. 11A, Sept. 13.) Johnson paid Garner $250.00 and told Garner that “the next time I come around I would be interested in a larger piece” meaning “a half ounce to an ounce”. (Tr. 12, Sept. 13.)

On November 5 Johnson arrived in the 4300 block of Eighth Street between 6:00 and 6:30 P.M., saw Garner, and asked if it would be possible to make a purchase of narcotics. Garner said it would, but Johnson had to come back. Johnson returned between 9:00 and 10:00 o’clock and Garner sold him another quarter of an ounce for $225.00. (Tr. 65, 14, Sept. 13.) On this occasion, as on the two previous ones, Garner went into 4321-Eighth Street to get the narcotics.

Analysis of the three packets of narcotics purchased by Johnson revealed that they contained, respectively, 16%, 10% and 12% pure heroin. (Tr. 26, 30, 39, Sept. 13.) The usual heroin content of specimens taken in the District of Columbia in October 1971 was between 1% and 4%. (Tr. 32, Sept. 13.) It thus appeared that Garner’s operation was a high-level enterprise carried on at curbside.

Garner’s defense was that he was at home with his wife on the nights when the sales to Johnson were alleged to have been made. He testified he had not seen Johnson before February 1972. His wife corroborated his alibi.

We think the issue here was one of veracity between Johnson and Garner. Johnson saw and dealt with Garner on six occasions ■ between October 21 and November 5, so that Garner was well known to him. The instruction suggested in the Telfaire case does not focus on identifications of this sort, although it may be appropriate when a witness to a robbery or homicide has identified some stranger to him as the perpetrator of the crime. We think the instruction given by the court was entirely adequate, and that the Telfaire charge might well have confused the issue.

The judgment is affirmed.


text:
    UNITED STATES of America, Petitioner, v. The Honorable June L. GREEN, Respondent (two cases). Eugene BYRD et al. v. UNITED STATES of America, Appellant.
    Nos. 73-2150, 73-2159 and 73-2265.
    United States Court of Appeals, District of Columbia Circuit.
    June 19, 1974.

      Harold H. Titus, Jr., U. S. Atty. at the time the pleadings were filed, and Charles L. Jaffee, Atty., Dept, of Justice, were on the pleadings for petitioner and appellant.
    Allan M. Palmer and Robert N. Levin, Washington, D. C., were on the pleadings for respondent and appellees.
    Before TAMM and ROBINSON, Circuit Judges.
   PER CURIAM:

The sole question presented in these consolidated cases is whether a district court may properly dismiss a prosecution commenced by indictment in another district on motion of arrestees whose removal to the other district is sought pursuant to Criminal Rule 40(b). We answer that question in the negative.

A grand jury in the Southern District of Florida returned an indictment charging eight persons with violations of federal narcotic laws. Eugene Byrd and Roy Black, two of the indictees and residents of the District of Columbia, voluntarily submitted to arrest in the District. They were brought before a federal magistrate in the District and a removal hearing, pursuant to Rule 40(b), was scheduled.

Prior to the hearing, Byrd, joined later by Black, moved the District Court for the District of Columbia for dismissal of the prosecution on grounds of prejudicial delay in its initiation. The District Court granted the motion. By direct appeal from the order of dismissal and by petitions for writs of mandamus, the Government seeks to set the court’s action aside.

Rule 40(b) prescribes the scope of a proceeding for removal of a person arrested in a district distant from the district wherein the prosecution is pending. That proceeding, as we have stated, “contemplates service toward two primary goals.” One is to avoid delay in bringing arrestees to trial; the other is to guard against improvident removals by requiring- sufficient grounds therefor. Essentially, the requirement is a showing to a federal magistrate of “probable cause to believe that [the arrestee] is guilty of the offense charged” where the arrest is made without a warrant or where the prosecution is by information or complaint. But where, as here, the prosecution is by indictment, “probable cause is [already] established, beyond the [purview] of judicial review, by the grand jury’s return of the indictment.” Rule 40(b) is explicit as to both the procedure and the judicial response in such situations:

If the prosecution is by indictment, a warrant of removal shall issue upon production of a certified copy of the indictment and upon proof that the defendant is the person named in the indictment.

The upshot of it all is that once a certified copy of the indictment is produced at a removal hearing, the only issue remaining litigable is the identity of the arrestee as the indictee. The clear mandate of Rule 40 sharply limits the function and authority of the magistrate, and by the same token the jurisdiction of the district court for the transferor district. Where the terms of Rule 40 are met in a proceeding for removal in furtherance of a prosecution by indictment, that court lacks power to dismiss either the proceeding or the prosecution.

We realize that Rule 40(b) may appear to visit needless inconvenience upon arrestees whose motions to dismiss may ultimately achieve success in the transferee court, but there are more powerful considerations on the other side. A contrary provision would threaten consequences seriously adverse to the orderly administration of criminal justice, not the least of which is potential frustration of the unequivocal objective-of Rule 40(b) to avoid delay in bringing arrestees to trial. The full panoply of defenses is, of course, available to the arrestee in the transferee court, am]/any inconvenience incidental to assertion of defenses there is simply unavoidable.

We remand these cases to the District Court with instructions to vacate the orders of dismissal and permit the removal proceeding to resume. Should the Government produce at the hearing a certified copy of the indictments and satisfactory proof that respondents are among the individuals named therein, warrants of removal must issue in due course.

So ordered.

      . Fed.R.Crim.P. 40(b).

      . gee Fed.R.Crim.P. 40(b) (1), (2), (3).

      . The motion was predicated both upon an alleged denial of due process of law, see United States v. Marion, 404 U.S. 307, 323-325, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), and the provisions of Fed.R.Crim.P. 48(b). The motion also invoked the Speedy Trial Clause of the Sixth Amendment. But see id. at 313-322; United States v. Parish, 152 U.S.App.D.C. 72, 75-76, 468 F.2d 1129, 1132-1133 (1972), cert. denied, 410 U.S. 957, 93 S.Ct. 1430, 35 L.Ed.2d 690 (1973).

      . The appeal is No. 73-2265; the petitions are Nos. 73-2150, 73-2159.

      . It is argued that the petitions for mandamus are inappropriate because an appeal lies from the order of dismissal. See, e. g., Will v. United States, 389 U.S. 90, 95-107, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967); Schlagenhauf v. Holder, 379 U.S. 105, 109-112, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964). But, as we have stated, see note 4, supra, and accompanying text, the Government also filed a timely notice of appeal from the order, designating both Byrd and Black as appellees. The Government has since sought to unilaterally withdraw the appeal and its status may be in doubt, see Fed.R.App.P. 42(b), but we deem that immaterial since in any event the petitions for mandamus are treatable as notices of appeal. Jordan v. United States District Court, 98 U.S.App.D.C. 160, 163, 233 F.2d 362, 365, vacated on other grounds, 352 U.S. 904, 77 S.Ct. 151, 1 L.Ed.2d 114 (1956). See also Cobb v. Lewis, 488 F.2d 41, 45 (5th Cir. 1974). Since, then, we plainly have jurisdiction by the one procedural route or the other, we need not decide which is the more appropriate. Compare Nixon v. Sirica, 159 U.S.App.D.C. 58, 65 n. 21, 487 F.2d 700, 707 n. 21 (en banc 1973) ; Continental Oil Co. v. United States, 330 F.2d 347, 349 (9th Cir. 1964).

      . See discussion in United States v. Perkins, 140 U.S.App.D.C. 76, 80-81, 433 F.2d 1182, 1186-1187 (1970). We notice judicially that the Southern District of Florida is situated in the State of Florida, more than 100 miles from the District of Columbia. See Fed. R.Crim.P. 40(a), (b)(1).

      . United States v. Perkins, supra note 6, 140 U.S.App.D.C. at 81, 433 F.2d at 1187.

      . See note 9, infra.

      . “The purpose of removal proceedings is to accord safeguards to a defendant against an improvident removal to a distant point for trial. On the other hand, experience has shown that removal proceedings have at times been used by defendants for dilatory purposes and in attempting to frustrate prosecution by preventing or postponing transportation even as between adjoining districts and between places a few miles apart. The object of ■ the rule is adequately to meet each of these two situations.” Original Advisory Committee Note 2 to Fed.R.Crim.P. 40. See also United States v. Perkins, supra note 6, 140 U.S.App.D.C. at 81, 433 F.2d at 1187.

      . Fed.R.Crim.P. 40 (b) (3) (C).

      . Fed.R.Crim.P. 40 (b) (3) (B).

      . United States v. Perkins, supra note 6, 140 U.S.App.D.C. at 81, 433 F.2d at 1187. “[I]n case of. an indictment, the grand jury, which is an arm of the court, has already found probable cause. Since the action of the grand jury is not subject to review by a district judge in the district in which the grand jury sits, it seems illogical to permit such review collaterally in a removal proceeding by a judge in another district.” Original Advisory Committee Note 3 to Fed.R.Crim.P. 40 (1948). See also Dailey v. United States, 286 F.2d 62 (8th Cir.), cert. denied, 365 U.S. 827, 81 S.Ct. 714, 5 L.Ed.2d 706 (1961); Hemans v. Matthews, 6 F.R.D. 3, 4 (D.D.C.), aff’d, 81 U.S.App.D.C. 417, 158 F.2d 9 (1948).

      . Fed.R.Crim.P. 40(b)(3)(A) (emphasis added).

      . United States v. Perkins, supra note 6, 140 U.S.App.D.C. at 81, 433 F.2d at 1187; In re Ellsberg, 446 F.2d 954, 957-960 (1st Cir. 1971); Cox v. United States, 373 F.2d 500 (8th Cir. 1967); United States v. Bessie, 75 F.Supp. 95, 97-98 (S.D.Cal.1947); Hemans v. Matthews, supra note 12, 6 F.R.D. at 4; United States v. Provoo, 16 F.R.D. 341, 343 (S.D.N.Y.1954); 8 J. Moore, Federal Practice ¶ 40.04[2] (Cipes ed. 1965); 3 C. Wright, Federal Practice § 654 (1969). Cf. United States v. Parker, 14 F.R.D. 146, supplemental opinion, 14 F.R.D. 447 (D.D.C.1953); United States v. Winston, 267 F.Supp. 555, 560 (S.D.N.Y.1967). As the Advisory Committee on the Criminal Rules had occasion to explain:
      It is contemplated that under this rule in cases in which the removal proceeding is based on an indictment, the production of a certified copy of the indictment accompanied by proof of. identity would be conclusive and would require the court to order removal. See Rodman v. Pothier, 264 U.S. 339 [44 S.Ct. 360, 68 L.Ed. 759] (1924); Henry v. Henkel, 235 U.S. 219 [35 S.Ct. 54, 59 L.Ed. 203] (1914); Beavers v. Henkel, 194 U.S. 73 [24 S.Ct. 605, 48 L.Ed. 882] (1904). Under the proposed rule, if the prosecution is based upon an indictment, appearance on the face of the indictment of lack of jurisdiction would not constitute an adequate basis for denial,, by a district judge of an application for a warrant of removal. Compare Morse v. United States, 267 U.S. 80 [45 S.Ct. 209, 69 L.Ed. 522] (1925); United States v. Smith, supra; United States v. Yarborough, 122 F. 293, (W.D.Va., 1903).
      Advisory Committee on Rules of Procedure, Federal Rules of Criminal Procedure 140 (Prelim.Draft 1943).

      . We intimate no view on the merits of the controversy.

      . One need not pause long to conjure the malevolent effects of divergent Rule 48(b) rulings in various jurisdictions in the course of a single prosecution involving many defendants.

      . See note 9, supra, and text supra at note 8. We are informed that, prior to submission of the case to us and ostensibly in consequence of this litigation, Byrd and Black were severed and trial of other indictees got under way.


text:
    LOCAL UNION NO. 2338, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. FEDERAL PACIFIC ELECTRIC COMPANY, Respondent, Local Union No. 2338, International Brotherhood of Electrical Workers, Intervenor. FEDERAL PACIFIC ELECTRIC COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
    Nos. 73-1553, 73-1708 and 73-1852.
    United States Court of Appeals, District of Columbia Circuit.
    Argued May 28, 1974.
    Decided June 20, 1974.
    Laurence J. Cohen, Washington, D. C., for petitioners in No. 73-1553 and intervenors in No. 73-1708.
    William M. Saxton, Detroit, Mich., with whom Robert M. Vercruysse, Detroit, Mich., was on the brief for petitioner in No. 73-1852 and respondent in No. 73-1708.

      John D. Burgoyne, Atty., N. L. R. B„ with whom John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, apd Elliott Moore, Deputy Associate Gen. Counsel, N. L. R. B., were on the brief, for petitioner in No. 73-1708 and respondent in Nos. 73-1553 and 73-1852.
    Before McGOWAN and ROBINSON, Circuit Judges, and STANLEY A. WEIGEL United States District Judge for the Northern District of California.

       Sitting by designation pursuant to Title 28, U.S.Code § 292(d).

   PER CURIAM:

These consolidated direct review proceedings under the National Labor Relations Act, 29 U.S.C. § 151 et seq., involve (1) a petition by the employer to overturn a Board order (No. 73-1852), (2) a request for enforcement of that-order by the Board (No. 73-1708), and (3) a petition by the union seeking relief beyond that given to it by the Board (No. 73-1553). The order in issue found the employer guilty of unfair labor practices under Sections 8(a)(1) and 8(a)(5) of the Act. The conduct giving rise to the former consisted of antiunion solicitation and threats directed to employees. The 8(a)(5) violation was found to lie principally in dilatory tactics in scheduling bargaining sessions as the certification year approached its close, and an assertedly unilateral wage increase after that year had ended.

These controversies derived from an organizing campaign carried on in 1971 at the employer’s plant in Albemarle, North Carolina. A representation election was won by the union in a close vote and, on March 12, 1971, the union was certified by the Board as the bargaining representative of the production and maintenance employees. The events found by the Board to be unfair labor practices occurred after this date.

The Administrative Law Judge and the Board concurred in finding the 8(a)(1) violation, but the former concluded that the employer had not failed to meet its bargaining obligations under 8(a)(5). Because of this latter circumstance, we have examined the record with particular care. As might be expected, there is considerably less question about the adequacy of the evidence to support the 8(a)(1) finding than there is about the 8(a)(5). The latter, indeed, presents a fairly close case on the evidence of record, inasmuch as there is no question but that the bargaining started promptly after certification and continued intensively for several months. The violation has to be discerned in what is said to be the emergence of a purposeful pattern of delay and evasion on the part of the employer as the end of the certification year approached. The wage increase in issue occurred after the end of the certification year, but at a time when the union was still claiming to speak for a majority.

The problems in this case seem to have been compounded by the fact that, after the certification election, the company’s business had undergone a substantial expansion and many new employees had come into the plant. We have, on balance and after searching scrutiny of the record, concluded that there is evidence of a substantial nature to support the Board’s findings with respect to both 8(a) (1) and 8(a) (5); and, that being so, we are not at liberty to disturb the Board’s order, even though the same record might have been compatible with a different result. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951).

The union’s petition goes only to the matter of remedy. The order entered by the Board affords the familiar remedies of the posting of notices; the reinstatement with back pay of employees who took part in a strike in March of 1972 against the unfair labor practices; and a direction that the employer shall, upon request, bargain collectively with the union over wages, hours, atid other terms and conditions of employment. Prior to the entry of that order the union had requested that, if the Board should conclude that the employer had failed in its obligation to bargain during the course of the certification year, the Board should provide for a six-months extension of that certification year in accordance with a remedial device originally fashioned by the Board in Mar-Jac Poultry Co., 136 N.L.R.B. 785. This remedy is designed to make up to the union any opportunity lost by it to reach agreement during the certification year by reason of dilatory tactics on the part of the employer. It is a remedial measure which has from time to time been employed by the Board in succeeding cases and recognized by the courts as an appropriate addition to the Board’s arsenal of remedies.

In its decision and order the Board, in denying this request, said only that “[A]s we assess the violation here found, we conclude that a general bargaining order is the appropriate remedy, rather than a specific extension of a certification year.” The union complains, and with reason in our view, that this is far too cryptic a conclusion to make judicial review of the Board’s action meaningful. See NLRB v. Metropolitan Life Insurance Co., 380 U.S. 438, 443, 85 S.Ct. 1061, 13 L.Ed.2d 951 (1965).

We recognize, of course, the large area of discretion customarily accorded to the Board in its formulation and employment of remedies, see, e. g., Fibreboard Corp. v. NLRB, 379 U.S. 203, 85 S.Ct. 398, 13 L.Ed.2d 233 (1964); and it may well be that the Board’s assessment of appropriateness in this instance is solidly grounded in a rational exercise of the Board’s discretion. What we do not know, because of the Board’s terseness, is what the nature of that assessment was. Counsel for the Board, in brief and oral argument, point to circumstances characterized as rationally warranting the assessment made by the Board, but the reasons for Board action are to be supplied by the Board, and not by counsel as its surrogate.

We therefore remand No. 73-1553 to the Board in order to give it an opportunity to state the basis of its denial of the request for extension of the certification year. In all other respects, the Board’s order is undisturbed and enforcement granted.

It is so ordered.

      . A 1970 effort to organize the plant by the petitioner union eventuated in a finding of unfair labor practices on the part of the employer. 195 N.L.R.B. 609, 612, 616 (1972).

      . The Board’s order does not in terms prescribe the period for which the employer must bargain with the union, but comparable provisions have been construed as contemplating that such obligation must continue for a “reasonable period” of time. Brooks v. NLRB, 348 U.S. 96, 98, 75 S.Ct. 176, 99 L.Ed. 125 (1954).

      . Stan Long Pontiac, Inc., 175 N.L.R.B. No. 71, enf’d sub nom. NLRB v. Rummel Pontiac-Cadillac, Inc., 434 F.2d 1050 (6th Cir. 1970); NLRB v. C & C Plywood Corp., 413 F.2d 112 (9th Cir. 1969); NLRB v. Rish Equipment Co., 407 F.2d 1098 (4th Cir. 1969); NLRB v. Gebhardt-Vogel Tanning Co., 389 F.2d 71 (7th Cir. 1968); NLRB v. Burnett Construction Co., 350 F.2d 57 (10th Cir. 1965), enforcing 149 N.L.R.B. 1419; Lamar Hotel, 140 N.L.R.B. 226, enf’d sub nom. NLRB v. Commerce Co., 328 F.2d 600 (5th Cir.), cert. denied, 379 U.S. 817, 85 S.Ct. 32, 13 L.Ed.2d 28 (1964).