author: LEWIS R. MORGAN, Circuit Judge:

text:
    LOUISIANA POWER & LIGHT COMPANY et al., Petitioners, v. FEDERAL POWER COMMISSION, Respondent.

    Nos. 72-1714, 72-1715, 72-1720, 72-1721, 72-1724, 72-1784, 72-2185 and 72-2188.
    United States Court of Appeals, Fifth Circuit.
    June 28, 1973.
    Rehearing and Rehearing En Banc Denied Sept. 5, 1973.

      John T. Miller, Jr., Washington, D. C., George W. Hugo, Houston, Tex., W. C. Nelson, New Orleans, La., Nelson Jones, Thomas G. Johnson, Dan A. Bruce, William G. Riddoeh, Houston, Tex., E. Burt Harris, New Orleans, La., Martin N. Erck, John R. Rebman, J. Kirby Ellis, Houston, Tex., Daniel F. Collins, Sherman S. Poland, James Douglas Welch, Wm. Warfield Ross, Washington, D. C., Stanley Plettman, Beaumont, Tex., Andrew P. Carter, H. Sloan McCloskey, New Orleans, La., Arnold D. Berkeley, Washington, D. C., Kirk W. Weinert, John M. Young, Houston, Tex., J. Donald Annett, Washington, D. C., R. J. Leithead, Sam Riggs, Jr., Tulsa, Old., for petitioners.
    John J. Keating, Jr., J. Richard Tiano, Deputy Sol., Leo E. Forquer, Gen. Counsel, George W. McHenry, Jr., Acting Sol., Federal Power Commission, Washington, D. C., for respondent.
    J. Evans Attwell, W. John Shirley, Jack D. Head, Houston, Tex., Peter H. Schiff, Gen. Counsel, Public Service Com’n, Albany, N. Y., Richard A. Solomon, Jerome Ackerman, James R. Mc-Cotter, Howard E. Wahrenbrock, Washington, D. C., John M. Kuykendall, Jr., Jackson, Miss., Leon M. Payne, William B. Cassin, Wm. C. Harvin, Wm. R. Choate, Perry O. Barber, Jr., Jeron L. Stevens, Houston, Tex., Sharon Pierson, Pierson & Semmes, Washington, D. C., Robert F. LeBlanc, Tulsa, Okl., and L. E. Frazier, Jr., Houston, Tex., for inter-venors.
    Before JOHN R. BROWN, Chief Judge, and BELL and MORGAN, Circuit Judges.

       Consolidated with: Shell Oil Company v. Federal Power Commission; New Orleans Public Service Inc. v. Federal Power Commission ; Texas Gulf Sulphur Company v. Federal Power Commission; State of Louisiana v. Federal Power Commission; Gulf States Utilities Company v. Federal Power Commission; Louisiana Gas Service Company v. Federal Power Commission; Exxon Corporation v. Federal Power Commission.

   LEWIS R. MORGAN, Circuit Judge:

This case is another in the long-running and seemingly endless saga of “Who Gets The Gas?”, starring the major oil companies, the natural gas pipelines, major industrial users of natural gas, and the Federal Power Commission. Also featured, albeit in somewhat of a bit part, is the individual gas consumer, “the little lady at the burner tip”. Although possibly suited for short subject treatment, this proceeding has now become a full-length feature of epic proportions. Basically it is this court’s task to consider petitions for review of FPC Opinions 610 and 610-A, in which the Commission took jurisdiction over a formerly intrastate pipeline in Eastern Louisiana. There are many parties with numerous underlying themes to present. From this confusion we must review whether or not the FPC correctly handed out the awards.

In Opinion 610, the FPC found that due to the injection of interstate gas, the formerly intrastate pipeline known as the “Green System-East” was now subject to FPC jurisdiction. Despite all the many different methods used by the petitioners in stating the issues, there are basically only two points for us to consider in reviewing the Commission: (1) Was the FPC correct in holding that the Green System-East had become sufficiently interstate to confer exclusive federal jurisdiction? (2) Even if the system would be otherwise an interstate pipeline subject to jurisdiction, had Congress expressly withdrawn federal jurisdiction for a pipeline such as this by enactment of the Hinshaw Amendment to the Natural Gas Act?

Also, in Opinion 610, the FPC found federal jurisdiction over United’s Purple System, another formerly intrastate pipeline. While the majority of the petitioners challenge only the existence of federal jurisdiction over the Green System, two petitioners, Cities Service and Gulf States Utilities, challenge the characterization of the Purple System as interstate. The nature of each of these pipelines will be considered separately below.

The Green System-East

The Green System-East, a natural gas pipeline owned by United Gas Pipe Line Company, is physically situated entirely within the State of Louisiana in United’s New Orleans division. For several years prior to October 1, 1970, when United filed an application for FPC certification for the Green System-East, these facilities had been operated as an intrastate system subject to the jurisdiction of the Louisiana Public Service Commission. At this point it is necessary to note that the Green System-East is connected through systems of valves with other pipelines, including United’s Black System which is an interstate pipeline. It appears that all the gas which goes into the Green System-East is produced in Louisiana gas fields, although at some point some of this gas may be carried in pipelines which also carry gas dedicated to the interstate market. There exists a heated debate as to whether any gas once placed in the Green System-East can or does ever leave the State of Louisiana. These factual matters are basic to the holding of jurisdiction and will be considered in detail infra.

Prior Proceedings

The Green System-East has been involved in a significant chain of court opinions. Petitioner, Louisiana Power & Light, previously brought suit in the United States District Court for the Western District of Louisiana seeking a determination of the intrastate character of the Green System-East. The district court, 332 F.Supp. 692 (1971), dismissed the suit, holding that the issue of the nature of the Green System-East was within the primary jurisdiction of the FPC.

On appeal, we reversed the district court, disagreeing that it was necessary to await Commission action. Louisiana Power & Light Co. v. United Gas Pipe Line Co., 5 Cir. 1972, 456 F.2d 326. This court went on to address the issue of the Green System-East’s interstate character and held that any interstate gas which had been introduced into the system was so minimal in amount that federal jurisdiction had not attached.

In Federal Power Commission v. Louisiana Power & Light Co., 406 U.S. 621, 92 S.Ct. 1827, 32 L.Ed.2d 369 (1972), the Supreme Court reversed this court and agreed with the result reached by the district court. Noting that the FPC was conducting hearings of its own in this regard, the Court held that while the agency’s decision would not be the last word, it must be the first. The FPC has now reached its decision, finding that the Green System-East is sufficiently interstate to be jurisdictional. It is that “first word” of the agency which we now must review and issue, if not the last word, at least the “next word”.

I.

Before proceeding to the merits of the controversy, it is helpful to have a firm picture of the various parties engaged in this litigation and their respective interests in its outcome. It is also important to understand the practical effect of FPC jurisdiction on the parties.

The petitioners can be divided into basic groups. The major oil companies have an interest in the outcome both as sellers and purchasers of natural gas. Several smaller distribution companies which purchase gas from United and the Green System are also challenging the Commission decision. Of course, the petitioners include several state regulatory agencies charged with the duty of regulating pipelines which are intrastate in nature. Public utilities which purchase natural gas for resale are involved as parties, as are various towns, parishes and municipalities, both as gas purchasers and representing the public interest. Basically, the effect of federal jurisdiction over the Green System-East will have a similar effect on each of these parties, although not to the same degree.

The petitioners, quite naturally, paint themselves as the heroes of this piece, denominating United as the villain and the FPC as conspiratorial bedfellow or, at the least, stooge of United. In giving depth to this characterization of United, the petitioners seek to show United as a greedy, over-reaching and somewhat callous corporate giant out to gorge itself at everyone’s expense. The accuracy of this picture, they say, is made crystal clear by the results which will flow from FPC jurisdiction in this case.

These horrors which petitioners feel will flow from FPC jurisdiction are basically twofold. First, the switch from Louisiana Public Service Commission regulation, which, with regard to direct sales is virtually non-regulation, to FPC regulation will permit United to abrogate numerous long-term contracts which it has entered in the past for deliveries of gas to gas purchasers. The importance of this benefit can be seen immediately. Many of these contracts have several years yet to run. They were negotiated in the days when the supplies of natural gas appeared to be endless and, thus, contracts for extremely long terms, such as 20 years, were considered good business, sewing up a customer for the future. Of course, as we all know, with the rise of environmentalism which stressed the importance of natural gas as an essentially “clean” fuel and the realization that natural gas reserves and availability have been drastically overestimated, this country has been plunged into an “energy crisis”. This “crisis” seems especially acute in the natural gas industry, possibly because of the greater demands for the fuel. Thus, what gas is available can be sold and indeed will be sold for substantially higher prices on today’s market than a pipeline could realize under the old long-term contracts entered years ago. Even regulated prices would be substantially higher than the old contract rates, and it must be remembered that the FPC does not regulate the price of sales to direct customers such as large industries but only sales where ultimately the gas will be resold.

Secondly, the gas shortage has led to the necessary allocation of priorities and rationing of this limited supply of natural gas. Through what is popularly called “curtailment”, pipelines are allowed to file, subject to Commission approval, plans of allocation of the available gas, basically to ensure that gas goes not to the highest bidder but to those who need it most in the public interest. FPC jurisdiction, thus, also brings in the almost certain result of curtailment of deliveries, even contractually agreed to deliveries. See International Paper Co. v. Federal Power Commission, 5 Cir. 1973, 476 F.2d 121.

The parties who sell gas to United for the Green System-East are also worried that if the Green System-East is held interstate they will be in a difficult contractual situation because the gas they are using to fill United’s needs is restricted in many cases to the intrastate market only by contracts with those having the gas rights. Thus, they fear that they will have to use other gas to service the Green System-East.

Viewing this situation, the petitioners present United as out after the “fast buck”. They allege that United was perfectly willing to be regulated, or in some cases not regulated, by the Louisiana Public Service Commission until it became evident to United that it was to its distinct financial advantage to come under FPC jurisdiction. They further suggest that to obtain Commission jurisdiction, United improperly and perhaps illegally injected interstate gas into the Green System-East, as it could do because of the interconnecting valves, solely for the purpose of creating an argument for jurisdiction to present to the Commission.

United, for its part, seeks to reverse these roles and cast itself as the “good guy”. United presents a picture of greedy private industries wishing to gobble up all available gas for their own selfish use, to the detriment of other consumers and the public in general. United claims that any diversion of interstate gas into the Green System-East was because it was absolutely necessary to meet contract deliveries. United supports the Commission finding as in the best interest of the consuming public. Agreeing with United on this point, at least as far as its consumers go, is the Public Service Commission for the State of New York. New York intervened, alleging its fear that United would divert substantial amounts of gas dedicated to the interstate market, including New York consumers, to fill these Green

System-East contracts' unless the federal authorities exercised control.

Thus, the battle line is drawn and, as usual, the dispute is not over gas alone, but also money. In reviewing the Commission’s opinion, we must put away these self-serving charges and counter-charges and look to the legal issues of the requisites for federal jurisdiction. In light of the Supreme Court’s directive in Louisiana, Power & Light Co., supra, our task must begin with the FPC’s decision.

II.

Opinions 610 and 610-A

The first question which the FPC faced in entertaining United’s request was whether or not the Green System-East was indeed a jurisdictional pipeline. Noting that none of the interconnections at which United alleged interstate gas to have flowed into the Green System had been certificated by the Commission, the FPC stated that “the facts which must be used for determining jurisdiction are based on unauthorized flows of interstate gas into and out of the . . . facilities”. In its presentation, United had marked a map of its system showing the points at which interstate gas had been injected into the Green System. The amounts of gas injected at each of these points, as found by the Commission, are set out in the margin. Having found that gas which ultimately found its way into the Green System had at one time been transported in a pipeline which carried interstate gas even though all the gas was produced within Louisiana and had never physically been outside the state, the Commission went ahead to decide whether or not the amount gave it jurisdiction.

The Commission found that the amounts involved were substantial and were sufficient to give the Commission jurisdiction. On peak days for 1970 and 1971 which were chosen, the Commission figures showed that 153,376 Mcf and 189,846 Mcf, respectively, flowed into the Green System-East. The Commission rejected a de minimis argument made by several of the petitioners stating that the interstate portion of the gas on peak days represented 7.79 percent of the requirements and on an annual basis, 2.39 percent of the requirement. Several of the parties dispute these findings made by the Commission, especially the holding as to the' total amount introduced into the Green System-East. We will discuss these points in more detail later in the opinion.

Viewing the total picture presented by all the various factors in the record before it, the FPC found that the Green System was an integrated part of United’s interstate (or Black) system and that the Green System-East could no longer be left to state regulation as a purely intrastate pipeline. We note that the Commission somewhat retreated from its suggestion that Green System gas flowed out of the State of Louisiana in a physical form. In Opinion 610-A, the FPC stresses that its finding that Green System gas is introduced into Mid-Louisiana’s pipeline is simply to show that it is commingled with gas which has moved in interstate commerce. This factor, according to the FPC, gives support to its holding that the Green System has become integrated with interstate systems even though the gas itself never flows out of the state.

The FPC went on to hold that jurisdiction was not to be determined by the amounts of gas involved. They held that jurisdiction attached wherever even an infinitesimal amount of interstate gas was injected into the system. For these purposes, the Commission defines interstate gas as any gas which had ever been carried in a certificated interstate pipeline.

Section 1(c) of the Natural Gas Act, commonly known as the Hinshaw Amendment, provides an exemption from federal regulation wherever all the gas received by the system is to be consumed wholly within the state. The Commission refused to apply the Hin-shaw exception, apparently finding that the Green System-East was an integrated facility and part of United’s total system.

Relying on California v. Lo-Vaca Gathering Co., 379 U.S. 366, 85 S.Ct. 486, 13 L.Ed.2d 357 (1965), and this court’s Florida Parishes, opinion, Louisiana Public Service Commission v. FPC, 5 Cir. 1966, 359 F.2d 525, the FPC held that there had been sufficient commingling of intrastate and interstate gas to require that the Commission take jurisdiction over the Green System-East. The Commission also expressly rejected the argument that United had illegally and improperly introduced interstate gas into the Green System-East. First, it found the amounts injected were necessary to meet contract commitments, but, more importantly, stated the existence of jurisdictional facts controlled no matter what the motive.

Commissioner Carver dissented from Opinion 610. His primary reason for dissenting was his feeling that this circuit’s opinion in Louisiana Power & Light v. United Gas Pipe Line Co., 456 F.2d 326, which had not yet been passed on by the Supreme Court, was controlling and that the Commission was bound by res judicata. In his remarks, Commissioner Carver criticized the Commission for failure to take account of what he felt were the obvious reasons that United was now seeking Commission jurisdiction. He pointed out that the long-term industrial contracts were no longer beneficial to United because of the low rate structure and impending supply crisis. He also referred to the protected curtailment that United had previously sought from the Commission. See International Paper Company v. FPC, 5 Cir. 1973, 476 F.2d 121. He further stated:

Administrative bodies should not be insensitive to guiding principles of equity, and here there is a glaring lack of clean hands.

Following the petitions for rehearing, the Commission issued Opinion 610-A. In this opinion, the Commission retreated somewhat from its conclusion that Green System-East gas flowed out of the State of Louisiana. The Commission also attempted to clear up several other statements in Opinion 610 which were questionable. Commissioner Carver again dissented. He points out that the retreat as to Green System-East gas flowing out of the State of Louisiana undermined the entire finding of jurisdiction. Furthermore, he objected to the majority’s use of “official notice” in considering flow charts not made a part of the record in the case without giving the parties an opportunity to present analysis of those flow diagrams. Commissioner Carver concludes that the interstate gas which does flow into the Green System-East is so minimal and insignificant that the Commission should not take jurisdiction.

III.

At the outset, we note that the FPC has apparently decided to treat the entire Green System, formerly known as Green System-East and Green System-West, as a single unit for purposes of determining the existence of federal jurisdiction. In the past the Green System-East has been that part of United’s New Orleans division facilities lying east of United’s Napoleonville-Kosciusko interstate pipeline system. There is no abrupt stopping point for Green System gas when it reaches the Napoleonville-Kosciusko line; it simply continues to flow on toward the Baton Rouge area, but with the pipe denominated the Green System-West. Apparently this artificial division has been allowed to exist unchallenged for a number of years. In the past this one continuous pipeline has apparently been treated, for certification purposes, as two separate entities. The Green System-West has long been certificated while the Green System-East has been considered totally intrastate. As Commissioner Carver points out in his dissent to Opinion 610:

However, [United] has maintained a separate pipeline facility to serve customers in Louisiana on a strictly intrastate basis. Certification of this entity, or the purchases or sales made in connection with it, has been scrupulously avoided. No question of its jurisdictional status has been raised by the Commission staff, notwithstanding frequent audit, inspection, and review of company operations. In every way, United’s Green System-East has been held out to customers and regulators alike as a local service unit, free of Federal regulatory impact, and free to contract in any manner it chose, consistent with State law.

In Opinion 610, however, the FPC indicates that at this time the whole New Orleans facility, the entire Green System, must be considered as a unit.

The FPC, in finding jurisdiction, relies heavily on the fact that gas which must be denominated interstate gas flows into and out of the Green System. The flow charts used by the Commission for the year 1969 show that 5,419,519 Mcf of gas were supplied from interstate lines into the Green System-East, that part of the Green System east of the Napoleonville-Kosciusko line. Aside from a minuscule and irregular injection of less than 14,000 Mcf at Point “K”, this entire volume of gas was injected at Points “I” and “J”. The FPC found that this gas was interstate in nature because it was taken from a commingled stream of gas designated for the interstate market. Both Points “J” and “I” present similar factual situations since they both involve gas processing plants and the splitting of a commingled stream into two pipes, one leading to United’s interstate system, the other into the Green System-East.

The Commission also held that substantial quantities of interstate gas were delivered into the Green System at Points “L” and “M”, which are both located west of the Napoleonville-Koscius-ko line in the Green System-West. At Point “L” over 38,000,000 Mcf is delivered into what is known as the Willow Glen Loop. This loop is also supplied with almost 7,000,000 Mcf directly from the Green System-West and it should be noted that this exit for Green System gas is located very close to the alleged breakpoint between the Green System-East and the Green System-West and that this injection of almost 7,000,000 Mcf is over three-fourths of the total volume which the so-called Green System-East delivers to the so-called Green System-West. At Point “M”, the Napo-leonville-Kosciusko line delivers approximately 2,000,000 Mcf into the so-called Green System-West. This 2,000,000 Mcf joins with the almost 2,000,000 left after delivery to the Willow Glen Loop and, with various further receipts and deliveries in the so-called Green System-West, continues on to the end of that pipeline for exchange into Mid-Louisiana's interstate piepline for transportation and sale within the Baton Rouge area. It should be noted that the Mid-Louisiana line contains interstate gas flowing in from Mississippi.

Based on these injections and commin-glings of interstate gas into and within the Green System, the Commission found that it had jurisdiction over the entire system. In its opinion, the FPC noted that, even without consideration of Points “L” and “M”, after adjustments, about 3.4% of the Green System-East’s annual requirements were supplied from these interstate gas sources. For the peak day of January 6, 1970, the adjusted figures did show that 10.7% of the flow into the Green System-East facilities was injected from interstate gas. The Commission expressly found that these quantities are not de minimis. The Commission expressly found that without these injections of interstate gas there would have been a serious deficiency to serve the New Orleans area. Furthermore, the Commission found that this deficiency will seriously increase in the next few years, especially during the peak winter months, with the result that more and more interstate gas would have to be diverted to satisfy commitments. Thus, the Commission has explicitly held that the interstate injections are not minimal in amount nor are they of a temporary nature. Rather, the Commission feels that the amounts were significant, especially on peak days, and that continued delivery of interstate gas will be necessary to fill contractual obligations on the Green System-East.

Several, but not all, of the petitioners attack the Commission’s use of a commingling theory based on People of the State of California v. Lo-Vaca Gathering Co., 379 U.S. 366, 85 S.Ct. 486, 13 L.Ed. 2d 357 (1965); FPC v. Amerada Petroleum Corporation, 379 U.S. 687, 85 S.Ct. 632, 13 L.Ed.2d 605 (1965) ; and, most especially, our decision in Louisiana Public Service Commission v. FPC, 5 Cir. 1966, 359 F.2d 525 (commonly called Florida Parishes). In seeking to distinguish these cases the petitioners rely on this court’s opinion in Louisiana Power & Light Company v. United Gas Pipe Line Co., 5 Cir. 1972, 456 F.2d 326, in which we held that “the flow of gas from the Black System into the Green System in the case at bar is occasional and irregular as well as minimal”. Id. at 339. The petitioners stress that our conclusion in that case was based on substantially the same evidence presented to the Commission and that we must now reach the same result.

As previously noted, the Supreme Court vacated that part of our opinion referred to above which held that there was no FPC jurisdiction over the Green System-East. 406 U.S. at 647, 92 S.Ct. at 1841, 32 L.Ed.2d at 389. The Court held that the determination of jurisdiction was for the FPC in the first instance with our role limited to the normal processes of judicial review under the Natural Gas Act.

The Federal Power Commission was set up by Congress to bring a degree of regulatory expertise to the problems of regulating the transportation and consumption of natural gas, as well as other forms of energy. Because of their familiarity with the area in which they operate, the Commissioners are able to make substantially more accurate judgments than courts would be. Here the Commissioners have found that the injections of gas of an interstate character are not minimal and irregular, but are indeed substantial, fairly constant, likely to continue in volume, and necessary to meet contractual commitments. Because of our prior holding, it is almost certain we would not reach the same conclusion as an initial matter. However, ours is not to substitute our judgment for that of the FPC on an issue where that body’s intimate knowledge of the specific problems is concerned. We feel that determinations as to the amounts and constancy of the flow and their characterization in terms of impact and necessity therefor, once made by the Commission, cannot be lightly set aside by a court. In Louisiana Power & Light we were admonished by the Supreme Court to give the Commission the first chance to determine its jurisdiction in this case. The Commission has found that the Green System-East is a part of United’s integrated interstate pipeline system and that the amounts involved are not minimal. In making this latter determination, the Commission expressly considered and rejected the position of this court in Louisiana Power & Light as it applied to the facts found. Disagreeing with our holding that the injections were minimal, the FPC pointed out that the peak day injections were sufficient to heat over 100,000 homes. Exercising our limited review as opposed to interpreting de novo, we find that we may not overturn the Commission’s holding. We cannot say that there is no reasonable basis for the FPC’s position. See 4 Davis, Administrative Law Treatise § 30.05.

Among other things, the Commission found that any amount of interstate gas would give jurisdiction. The opinion seems to suggest that one molecule would be sufficient to automatically confer federal control. We do not reach or consider that issue in this opinion. It appears to this court that there would clearly be times when the amounts of natural gas involved would be so irregular and minimal that Commission jurisdiction would be absurd. However, as noted, the Commission has found that such is not the case as to the Green System-East and we find that to reverse the Commission on this point would simply be substituting our own judgment for that of the Commissioners, a luxury that we do not possess under our limited review.

Thus, we find we must sanction those parts of the FPC’s Opinions 610 and 610-A which establish federal jurisdiction over the Green System as an interstate pipeline. We are somewhat troubled by the assertion of Commissioner Carver and several of the petitioners concerning United’s motive in obtaining FPC jurisdiction. However, we do not feel that we have any available way to step in and sort out the competing inequities and reach what would be the fairest result for all concerned. That is the job for the Commission, and it is for the Commission to decide how to balance competing equities or how to penalize “unclean” parties in appropriate cases.

We would point, out that federal regulation is not to be considered a plaything to be turned on and off to suit a pipeline’s financial advantage. We feel confident that the FPC would not allow itself to be so used and are certain that courts would not allow such a practice to continue. Despite the innuendo and insinuation in this case, we see no direct evidence to support these suggestions of improper motive and conduct.

IV.

The Hinshaw Amendment

Section 1(c) of the Act (the “Hin-shaw Amendment”) describes certain persons and facilities whose participation in the transportation and sale of gas in interstate commerce is “primarily of local concern and subject to regulation by the several States”. 15 U.S.C. § 717(c). Under § 1(c) these persons and facilities are exempt from the jurisdiction of the Commission.

In the proceedings before the Commission the petitioners maintained that even if the gas transmitted through the Green System-East were interstate in character, the Commission would not have jurisdiction over it because the Green System-East falls' within the provisions of § 1(c). The Commission held that the Green System-East is not an exempt facility within the meaning of that section. The petitioners contend this holding was erroneous. We disagree.

Congress enacted the “Hinshaw Amendment” to preserve state control over local distributors who purchase gas from interstate pipelines. Congress did not intend the amendment to relieve the Commission of jurisdiction over local branches of integrated interstate systems.

We discern this intent in the legislative history. During the debate in both houses, supporters of the measure were at pains to emphasize that the proposed exemption was not for the benefit of interstate pipeline companies. See, e. g., 99 Cong.Rec. 10569-70 (remarks of Congressmen Hinshaw, Harris, and Yates). Critics of the measure suggested that the exemption would provide interstate pipelines with a means of defeating federal jurisdiction over portions of their operations which deliver gas for consumption wholly within a single state. One senator suggested that if an interstate pipeline placed one of its statewide delivery systems under the control of a wholly owned subsidiary and delivered gas to the subsidiary at the state line, the local system would qualify for exemption under the terms of the bill. See 100 Cong.Ree. 3173 (remarks of Senator Burke). Senator Bricker, one of the sponsors of the bill in the Senate, vehemently denied this:

“[T]here is no intent to place any pipeline company outside the jurisdiction of either the Interstate Commerce Commission or the Federal Power Commission.
“As soon as such a pipeline company were formed, it would come within the jurisdiction of the Federal Power Commission.
“This measure is not an effort — and I make this statement for the RECORD — to remove such companies from the jurisdiction of the Federal Power Commission. If such an interpretation is made, it is without basis or support or foundation upon anything stated at any of the committee hearings.” Id.

The congressional intent not to exempt local segments of integrated interstate pipeline systems from regulation by the Commission finds clear expression in the language of the statute. Thus, under § 1(c) it is not sufficient that all the gas transmitted through a given facility be consumed within a given state, or that a facility be subject to state regulation which is at least as extensive as that which the Commission would administer. Rather, the facility must be controlled (“used”) by a “person” who receives gas from “another person” at or within the state lines. It follows that a facility cannot be exempt if the “person” who receives the gas is the same “person” who transmits the gas into the facility in the first instance. In effect, the requirement of a “person-to-person” exchange at the point of receipt ensures that the statutory exemption will not extend to local branches of a single interstate system, all of which is operated by the same “person”.

In the present case we are not called upon to define with precision the degree of independence that must exist between the person who gives and the person who receives gas at or within state lines in cases where the exemption is warranted. Nor need we consider the propriety of the Commission’s prior determinations with regard to the availability or non-availability of the exemption in other cases. Under any plausible reading of the “other person” requirement, the Commission’s determination in this case must be sustained.

By virtue of the flow of interstate gas from the Black System into the Green, the Green System-East has ceased to be an intrastate facility and has become, instead, a local branch of an integrated interstate pipeline. In all its relevant parts, this pipeline system is operated by one person: United. At the points of connection between the Black System and the Green, United is the only person who gives gas, and United is the only person who receives. At those points— the points at which the exemption must take effect, if at all — the “person-to-person” requirement simply is not met.

Petitioners contend, however, that the requisite exchange from one person to another need not occur at the points where the exemption must take effect. They say that the person-to-person requirement may be satisfied by exchanges occurring at other points in the network of distribution or supply. Specifically, they claim that in this ease the requirement may be satisfied by various exchanges that occur between the Black System and certain independent procedures “upstream” of the points of connection between the Black System and the Green, or by various exchanges between the Green System and certain independent intrastate producers “downstream” of these points of connection.

The legislative history makes it clear, however, that in the contemplation of the supporters and the critics of § 1(c) the exchange between the two persons described in the statute took place at a point where an exemption was necessary to protect the receiver from federal jurisdiction that would otherwise exist under the East Ohio decision. In other words, the point of the person-to-person exchange was a point where exemption was needed, and it was a point where the proposed exemption was to take effect. See the Senate and House debates, supra.

Given this congressional understanding, we think that if the person-to-person requirement is to be met in this case, it must be met at a point of exchange where the exemption must take effect if the Green System-East is to be exempt. The point of exchange must correspond in some measure at least to the points of exemption. Here, however, the points where exemption must take effect are the points of connection between the Black System and the Green —the points where contributions of interstate gas to the Green System would otherwise confer federal jurisdiction. At none of these points is gas exchanged from one person to another.

The logic of a technical requirement that identifies the point of exemption with the point of the requisite exchange is apparent on the facts of this case. The contributions by independent producers of intrastate gas downstream of the points of connection between the Black System and the Green, or the contributions of interstate gas upstream of these points, do nothing to change the fact that the Green System is now a local branch of an integrated interstate system. Given Congress’ overriding intent not to bifurcate the regulation of such system, these contributions should not enhance the Green System’s eligibility for exemption under § 1(c). Under our interpretation of the person-to-person requirement, they do not.

The Purple System

The “Purple System” is a pipeline system in United’s Lafayette district in southwestern Louisiana. This pipeline system, like the Green System-East, has long been considered an intrastate pipeline not subject to Commission jurisdiction. Two parties, Cities Service Oil Company and Gulf States Utilities Company, challenge the FPC’s holding of federal jurisdiction over the Purple System.

The FPC,'without dissent as to these facilities, made specific findings showing that the Purple System is unquestionably an integrated part of United’s interstate system. At Point “A”, United obtained gas for the Lafayette facilities by exchange with an interstate transmission line of Texas Eastern Transmission Corporation. At Point “B” on the system map, United obtained over 1,000,000 Mcf on an annual basis from an interstate line of Texas Gas Transmission Corporation. At Point “C” on the flow chart, United delivered, on an annual basis, over 24,000,000 Mcf to Penzoil Pipeline Company for transportation across the Louisiana line into Texas. At Point “D”, United received over 1,000,000 Mcf from Tennessee Gas Pipeline Company’s interstate pipeline. At Point “H”, over 16,000,000 Mcf were supplied into two streams, with a little over one-half being delivered into one of United’s interstate pipelines for transportation out of the state, and the remainder used in the intrastate system. Finally, at Point “O”, Tennessee delivered over 22,000,000 Mcf on an annual basis to United’s Purple facilities which were commingled with locally produced gas and used in the Lake Charles area.

These facts amply establish that the Purple System is an integrated pipeline facility with many connections and exchanges of gas with interstate facilities. Gas clearly flows out of this system for interstate markets at Point “C”. Significant volumes of gas from interstate facilities are introduced into the Purple System for local sale.

Cities Service attempts to distinguish the Amerada,, Lo-Vaca and Florida Parishes cases by stating that all the facilities used for transportation for delivery to Cities Service at its refinery are located in Louisiana and all of the gas used at the Cities Service plant originates at production points or exchange points within Louisiana. Cities Service alleges that this makes the pipeline system purely intrastate.

On the contrary, we feel the evidence clearly establishes that this Purple System is part of an integrated pipeline network involving significant transportation of interstate volumes. We feel that the Amerada, Lo-Vaca and Florida Parishes cases cannot be distinguished successfully. We will not “lop off” certain parts of the otherwise integrated system to create an artificial intrastate pipeline.

For the reasons set forth above, the result reached by the FPC in Opinions 610 and 610-A with regard to jurisdiction over the Green System and Purple System is

Affirmed.

      . (b) Flow of Interstate Gas in New Orleans Facilities

      20. At point “I” United receives gas from producers in the Bastían Bay area whose sales have been certificated for interstate commei'ce. The gas enters one of United’s major certificated interstate gas pipelines extending toward Lirette, Louisiana, and also enters one of United’s 20-ineh supply lines which transports gas to New Orleans. On an annual basis the 20-inch line received 3,286,407 Mcf from the Bastían Bay area and on the peak days of March 3, 1971, and January 6, 1970, received 72,990 Mcf and 56,182 Mcf, respectively.
      21. At point “J” United receives gas from producers in the Bay Marchand, Calliou Island, and Bayou Jean la Croix fields. On an annual basis United received 20,414,367 Mcf from those fields of which 2,119,631 Mcf were transported in United’s pipeline extending to the New Orleans area while the remainder of the gas was transported to market in United’s certificated Lirette-Mobile interstate pipeline. On the peak day of January 6, 1970, 66,432 Mcf were received of which 16,437 Mcf entered the New Orleans pipeline and the remainder flowed into the Lirette-Mobile line. On the peak day of March 3, 1971, 47,116 Mcf were received and all of the gas on that clay entered the Lirette-Mobile pipeline.
      22. At point “K” United receives gas from producers in the Houma and other fields. The stream is split with some gas entering a 12-inch line extending toward New Orleans while the bulk of the gas travels in United’s certificated Lirette-Mobile interstate pipeline. On an annual basis 13,481 Mcf entered the New Orleans pipeline and on the peak days of March 3, 1971, and January 6, 1970, no gas entered the New Orleans facilities.
      23. At point “L” United’s certificated Kosciusko interstate pipeline delivers large volumes of gas into local facilities for transportation to Oulf States Utilities Company’s Willow Glen electric generating station which is located south of Baton Rouge. On an annual basis 38,177,591 Mcf were delivered at that point and on the peak days of March 3, 1971, and January 6, 1970, United delivered 64,017 Mcf and 15,744 Mcf, respectively, for consumption in the power plant.
      24. Point “M” is located very close to point “L”, but the gas flows from the certificated interstate line into an uneer-tificated pipeline extending toward the Baton Rouge area. On an annual basis 2,055,759 Mcf were delivered and on the peak days of March 3, 1971, and January 6, 1970, 52,762 Mcf and 64,868 Mcf, respectively, were delivered.
      25. At point “X” United receives gas produced in the De Large field area. After receipt, the gas stream is split with gas entering both the interstate and local markets. On an annual basis 2,773,124 Mcf were received of which 157,426 Mcf were consumed in the Dulac area. On the peak days of March 3, 1971, and January 6, 1970, 5,490 Mcf and 9,061 Mcf were received with 77 Mcf and 145 Mcf, respectively, being consumed in local markets while the remainder entered interstate pipelines.

      . This is in dispute, but it is clear that some gas once carried in the Green System-East ends up in an interstate pipeline owned by Mid-Louisiana, but in all probability this gas does not physically leave Louisiana.

      . Adjustments raise these figures to 10.7% and about 3.4%, respectively.

       Judge Bell authored Part IV, The Hin-shaw Amendment, for the court.

      . The text of the provision is the following:
      (c) The provisions of this chapter shall not apply to any person engaged in or legally authorized to engage in the transportation in interstate commerce or the sale in interstate commerce for resale, of natural gas received by such person from another person within or at the boundary of a State if all the natural gas so received is ultimately consumed within such State, or to any facilities used by such person for such transportation or sale, provided that the rates and service of such person and facilities be subject to regulation by a State commission. The matters exempted from the provisions of this chapter by this subsection are declared to be matters primarily of local concern and subject to regulation by the several States. A certification from such State commission to the Federal Power Commission that such State commission has regulatory jurisdiction over rates and service of such person and facilities and is exercising such jurisdiction shall constitute conclusive evidence of such regulatory power or jurisdiction.

      . The amendment was necessary because of an early decision of the Supreme Court which, in construing the scope of the Commission’s jurisdiction over the transportation and sale of gas “in interstate commerce”, held that interstate gas does not lose its interstate character in the hands of local distributors who buy gas for resale and ultimate consumption within the state. FPC v. East Ohio Gas Co., 338 U.S. 464, 70 S.Ct. 266, 94 L.Ed. 268 (1950).

      . See Footnote 5.

      . Because we decide the Hinshaw issue on this ground, we need not consider the other grounds asserted by the Commission as a basis for its refusal to recognize the allegedly exempt status of the Green System-East.


source: Caselaw Access Project

author: SCHATZ, District Judge.

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Dominic BIONDO and Willie Francisco Orlando, Appellants.
    Nos. 73-1003 and 73-1004.
    United States Court of Appeals, Eighth Circuit.
    Submitted June 14, 1973.
    Decided Aug. 21, 1973.
    Rehearing and Rehearing En Bano Denied Sept. 27, 1973.

      Irl B. Baris, Newmark & Baris, St. Louis, Mo., for appellants.

      Peter M. Shannon, Jr., Dept, of Justice, Washington, D. C., for appellee.
    Before Mr. Justice CLARK, HEANEY, Circuit Judge, and SCHATZ, District Judge.

       Associate Justice Tom C. Clark, United States Supreme Court, Retired, sitting by designation.

       District Judge Albert G. Schatz, District of Nebraska, sitting by designation.

   SCHATZ, District Judge.

Appellants, Dominic Biondo and Willie Francisco Orlando, were convicted of conspiracy to extort money in violation of the Hobbs Act (18 U.S.C. § 1951). A two-count indictment had been returned in the United States District Court for the Eastern District of Missouri charging Biondo and Orlando and two co-defendants, Joseph Anthony Scalise and Anthony Michael Accardi, with having obstructed, delayed and affected interstate commerce (Count One) and having conspired to obstruct, delay and affect interstate commerce (Count Two) by demanding an extortion payment of $15,000 and accepting a partial extortion payment of $5,000 from one Joseph Wozniak who had entered into a business arrangement with Accardi in the operation of three fruit and produce markets within the St. Louis area. Thereafter, Biondo, Orlando and Scalise were tried by a jury and following dismissal of Count One at the close of the government’s case in chief, Biondo and Orlando were convicted on Count Two and sentenced to five years imprisonment. Defendant Scalise was acquitted. The indictment of defendant Accardi, who had requested and was granted severance prior to trial, was subsequently dismissed.

The issues presented here are: (1) whether the evidence was sufficient to show that appellants conspired to obtain money by extortion in violation of the Hobbs Act, supra-, (2) whether the trial court erred in permitting a fatal variance between the indictment and the evidence; (3) whether appellants’ rights under the Jencks Act (18 U.S.C. § 3500) were violated; (4) whether admission of appellant Orlando’s statement, given subsequent to his refusal to sign a waiver of rights form, was proper; (5) whether severance of co-defendant Ac-cardi deprived appellants of their rights of due process under the Fifth Amendment, and, their rights to compulsory process for witnesses under the Sixth Amendment; (6) whether the court erred concerning the admissibility of certain evidence; (7) whether the trial court erred in denying appellants’ motion for a mistrial based upon a comment made by the prosecutor during his closing argument.

We affirm the judgments of conviction for reasons set forth hereafter.

Joseph Wozniak, age seventy, the victim of the purported conspiracy to extort money in violation of the Hobbs Act, had entered into a business arrangement with defendant Anthony Ac-cardi whereby three fruit and produce markets were to be operated within the St. Louis area, namely, Tony’s Colonial Market No. 1, Colonial Fruit Market No. 2, and the Woodson Market. Appellants Orlando and Biondo were employees at the markets. On May 18, 1971, Wozniak met with Orlando and Scalise and was informed that Biondo wanted a payment of $15,000 in cash from Wozniak, under threat of harm to his family and to his business interests. In this connection it was threatened that Biondo would run up bills at one of the markets, Colonial No. 2, for which Wozniak would be responsible. So far as the business arrangement is concerned between Wozniak and Accardi, the evidence shows that Colonial Market No. 1 was purchased by Accardi in September of 1970 with $20,000 advanced to him by Wozniak with no written agreement or contract. The Woodson Market was purchased by Wozniak in November of 1970 for $2,000 cash in order to expand Wozniak’s and Accardi’s fruit and vegetable business. On December 30, 1970, the Colonial Market No. 2 was purchased for $6,000, which sum was supplied by Wozniak. Wozniak signed the lease for Colonial No. 2 and paid an additional $1,450 as a security deposit and rent. Accardi managed the day-to-day operation of Colonial No. 2 and appellant Orlando managed Colonial No. 1 commencing in the fall of 1970. Sealise was one of Orlando’s employees as was Bion-do. Accardi, besides running the day-to-day operation of Colonial No. 2, also was in charge of Colonial No. 1, where Orlando was the manager. Wozniak visited Colonial No. 1 every day and made decisions, from time to time, as to the operation of this market. Wozniak participated in checking the inventory at the Woodson Market and took in the weekly receipts. At Colonial No. 2, Wozniak sometimes sold produce and at one time installed a lighting system in this market. In February of 1971, Wozniak was obliged to pay for bills which Accardi had failed to pay at Colonial No. 1 and at one time Wozniak was sued by the telephone company for an unpaid telephone bill at one of the markets, either Colonial No. 1 or Colonial No. 2.

Colonial Markets 1 and 2 sold the same products and the same type of produce, substantial quantities of the same having been brought into Missouri from Illinois and other states.

Following the May 18, 1971, meeting of Wozniak, Orlando and Sealise, Wozniak received a telephone call from Bion-do, May 19, 1971, again threatening Wozniak’s family if the money were not delivered that night. Meanwhile the evidence clearly shows that Orlando, who Wozniak thought was his friend and ad-visor, was urging Wozniak to pay Biondo the money in order to try to get Biondo on Wozniak’s side, and Orlando assured Wozniak that Biondo would not require him to pay any more money if he would pay the $15,000.

Wozniak met with Orlando and Biondo on the evening of May 20, 1971, and stated that he could not raise the entire sum. On May 21, 1971, Wozniak received two telephone calls from Orlando which were monitored by F.B.I. agents with Wozniak’s permission (on May .18, 1971, following the initial demand of $15,000, Wozniak had reported the entire matter to the F.B.I.). In these conversations, Wozniak stated that he could raise only $5,000 that day and Orlando, after contacting Biondo, told Wozniak to bring the $5,000 to a designated parking lot at 3:30 p. m. and to get the rest of the money by the following Monday. As scheduled at 3:30 p. m., Wozniak met with appellants and handed Biondo an envelope containing $5,000. This meeting was monitored and observed by F. B.I. agents and appellants Biondo and Orlando were arrested at the parking lot immediately after Wozniak’s payment.

We proceed to the issues which appellants have presented for review.

1) Appellants contend that the court erred in submitting the cause to the jury because the prosecution failed to make a submissible case against appellants for the reasons that there was no evidence that Wozniak had an ownership interest in the fruit stand, there was no evidence that Wozniak was fearful of the economic well-being of the fruit stand, and there was no evidence of an effect upon interstate commerce because there was no evidence the fruit stand was engaged in interstate commerce. We disagree. The evidence, which must be viewed in a light most favorable to the prevailing party, shows that Wozniak advanced the $20,000 to Accardi in order to buy a garbage disposal business. Instead, a fruit and produce stand known as Colonial No. 1 was purchased. Wozniak made frequent trips to the stand and participated in some of the operational decisions. The business was expanded by the purchase of two other markets including Colonial No. 2 which Wozniak paid for. He installed a lighting system and participated in the day-to-day operations of this store. He also advanced an additional $9,363 for Colonial No. 1 and paid some of the bills for both Colonial No. 1 and No. 2.

It is not necessary to precisely characterize Wozniak’s relationship as owner, partner, joint venturer, or guarantor because the evidence clearly shows that Wozniak had a definite financial interest in the business and was not a mere personal creditor. The Hobbs Act, supra, does not require .the victim to be an “owner” of a business involved in interstate commerce. Rather, it seeks to prevent harm to interstate commerce. By' directing their threats against Wozniak’s financial interest in the business, appellants, in effect, threatened the entire business. Had the threats been carried out, the resources of the business would have depleted and diminished and interstate commerce would have been affected and obstructed. The law is well settled in this regard. See United States v. Amabile, 395 F.2d 47, 49 (7th Cir. 1968), vacated and remanded on other grounds sub nom, Giorando v. United States, 394 U.S. 310, 89 S.Ct. 1163, 22 L.Ed.2d 297 (1969), where it was held that the depletion of an individual’s personal assets in this context would amount to an obstruction of the business.

Further, Wozniak’s family was threatened and we view these threats in the overall light in which they arose. When the threats to the economic well being of the business, that is, running up bills of $100,000 which Wozniak would have to pay, were combined with threats to the safety of Wozniak’s family, the evidence clearly supports the conclusion that the threats were directed against the financial interest of Wozniak. A business may be threatened through the people who operate it and a threat toward the financial interest in a business is clearly harmful to that business and, consequently, is violative of the Hobbs Act. See United States v. Augello, 451 F.2d 1167 (2nd Cir. 1971), cert. denied, 405 U.S. 1070, 92 S.Ct. 1518, 31 L.Ed.2d 802 (1972).

Appellants also argue that there was no effect upon interstate commerce here because there was no proof that the fruit stand was engaged in interstate commerce, theorizing that there was but .“slight evidence of some interstate merchandise coming to the premises” with which Wozniak was affiliated. Neither the evidence nor the law applicable thereto supports this contention. The evidence clearly shows that the produce stand in question bought substantial inventory from sellers in other states. It is not necessary that the total volume of sales of a business be broken down into what percentage relates to goods purchased from outside the state in question. See United States v. Augello, 451 F.2d at 1169-1170, and cases cited therein, and Stirone v. United States, 361 U.S. 212, 215, 80 S.Ct. 270, 272, 4 L.Ed.2d 252 (1960), wherein the Supreme Court said: “(The Hobbs) Act speaks in broad language, manifesting a purpose to use all the constitutional power Congress has to punish interference with interstate commerce by extortion, robbery or physical violence. The Act outlaws such interference ‘in any way or degree.’” (citation omitted). See also United States v. Hyde, 448 F.2d 815 (5th Cir. 1971), cert. denied, 404 U.S. 1058, 92 S.Ct. 736, 30 L.Ed.2d 745 (1972); United States v. Tropiano, 418 F.2d 1069 (2nd Cir. 1969), cert. denied, 397 U.S. 1021, 90 S.Ct. 1258, 25 L.Ed.2d 530 (1970). When the total evidence is observed in the light most favorable to the government, as it must be on appeal, United States v. Warner, 428 F.2d 730, 736 (8th Cir.), cert. denied, 400 U.S. 930, 91 S.Ct. 194, 27 L.Ed.2d 191 (1970), it is clear that the prosecution proved the commission of a federal crime and that the trial court properly submitted this issue to the jury.

2) Appellants claim that the court erred in permitting a fatal variance between the indictment and the evidence. The indictment, Count Two, charged that the defendants “did conspire ... to obstruct, delay, and affect commerce and the movement of goods or commodities in commerce, to wit: fruit and produce, by means of extortion, that is to.obtain the property of one JOSEPH WOZNIAK with his consent by the unlawful use of fear generated by threats made to the health and physical well being of his family and the economic well being of the Colonial Fruit Market No. 2 of which Wozniak was. part owner.” Appellants contend that the trial court erred in admitting evidence concerning markets other than Colonial No. 2 and, in so doing, allowed appellants to be convicted of a crime not charged in the indictment. This argument is not well taken. The indictment charges the appellants with interfering with the movement of “fruit and produce,” not with the interference of a particular branch of a business. Wozniak testified that Colonial No. 2 was operated as an expansion of the original fruit and produce business and this is amply supported by the entire record. Therefore, we find there was not such a variance in proof as to affect the substantial rights of the accused. See United States v. Schrenzel, 462 F.2d 765, 769 (8th Cir.), cert. denied, 409 U.S. 984, 93 S.Ct. 325, 34 L.Ed.2d 248 (1972). Stirone v. United States, supra, upon which defendants rely, is inapposite. In that case, William Rider owned a concrete plant and was about to build a steel plant. There was a contract for the concrete plant to supply concrete for the steel plant. The indictment charged that the interstate commerce affected was the movement of sand for the use in the concrete plant. The trial court had allowed evidence showing the effect upon the interstate transportation of steel. The Supreme Court reversed the conviction finding that the indictment could not be read as charging interference with the movement of steel. Thus, Stirone dealt with two separate businesses while the instant case involves one business dealing in the same goods and commodities. We find there was no fatal variance between the indictment and the evidence.

3) Jencks Act (18 U.S.C. § 3500). Appellants contend that their rights under the Jencks Act were violated because the government failed to record the grand jury testimony of F.B. I. agent Jones, that the court allowed government witness Mercurio to testify despite the unavailability of her grand jury testimony and thé court denied appellants’ request for the report of an interview with a co-employee of government witness Mercurio. The evidence clearly shows that not all the grand jury testimony was recorded. After the F. B.I. .agent Jones testified during trial, appellants requested production of his grand jury testimony and, when the prosecutor announced that his testimony had not been recorded, appellants moved to strike his trial testimony which was denied. The United States in its brief concedes that it would be “better practice” to record all grand jury testimony, and although the Second Circuit (United States v. Cianchetti, 315 F.2d 584, 591 (1963)) and the Ninth Circuit (United States v. Thoresen, 428 F.2d 654 (1970)) might agree, nevertheless, there is no constitutional or statutory requirement that grand jury testimony be recorded and we are unaware of any precedent in this Circuit to invoke a ruling making the recording or transcribing of grand jury testimony mandatory. In this instance, we see no reason to depart from our previous rulings on this subject. See United States v. Schrenzel, supra-, United States v. Harflinger, 436 F.2d 928 (8th Cir. 1970), cert. denied, 402 U.S. 973, 91 S.Ct. 1660, 29 L.Ed.2d 137 (1971).

Mrs. Mercurio testified before the grand jury and at trial as to the interstate commerce aspects of the produce market. Her testimony before the grand jury was recorded but, by the time of the trial, the stenographer was no longer employed by the government. Consequently, the government was unable to produce a transcript of her grand jury testimony upon request, although it claims to have made diligent efforts to do so. After the trial, the stenographer and notes were located and the transcript was made a part of the record. Appellants contend that it was error to refuse to strike her testimony. This assertion raises two questions: Was the grand jury testimony “in the possession” of the government? If so, what efforts must the government make to produce the transcript? It is not necessary to decide the possession question or the standard to which the government is held, for if error were committed, it was clearly harmless error. The only difference between Mrs. Mer-curio’s testimony before the grand jury and at trial is that in her grand jury testimony she admits that some of the sales may have involved locally grown produce. Appellants claim that they were harmed because they were not allowed to get into the intrastate, aspects of the business. However, that is not important because the statute is only concerned with the interstate commerce portion of the business. Furthermore, a great deal of her grand jury testimony dealt with laying a foundation for exhibits evidencing interstate sales, which exhibits the appellants had an opportunity to examine. The following statement by the Supreme Court applies: “Since the same (relevant) information that would have been afforded had the document (transcript) been given to defendant was already in the possession of the defense by way of the witness’ admissions while testifying, it would deny reason to entertain the belief that defendant could have been prejudiced by not having had opportunity to inspect the letter (transcript).” Rosenberg v. United States, 360 U.S. 367, 371, 79 S.Ct. 1231, 1234, 3 L.Ed.2d 1304 (1959).

On cross-examination of Mrs. Mercurio, it was revealed that another employee of Mercurio Produce, who neither testified at the grand jury or at trial, had been interviewed by the government. Appellants attempted to obtain production of this person’s statement and now claim error because the attempt was denied. This contention is clearly without merit. The Jencks Act speaks only in terms of a witness who has testified at trial. Defendants do not have a right under that act to demand such production. See United States v. Pope, 415 F.2d 685 (8th Cir. 1969), cert. denied, 397 U.S. 950, 90 S.Ct. 973, 25 L.Ed.2d 132 (1970). United States v. Borelli, 336 F.2d 376 (2nd Cir. 1964), cert. denied, 379 U.S. 960, 85 S.Ct. 647, 13 L.Ed.2d 555 (1965), as cited by appellants, does not apply because in that case the government sought to elude the Jencks Act by having a federal agent testify before the grand jury as to what the key witness had told him. Here, the unidentified employee in question had testified neither before the grand jury nor at trial.

4) The Orlando statement. After appellant Orlando was taken into custody, he was presented with a form involving his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), which he declined to sign. Further questioning ensued and Orlando stated that he had not been in the Normandy Shopping Center on a particular day. Later Orlando indicated that he did not wish to be questioned further and the interview was terminated. Orlando’s exculpatory statement was contradicted by F.B.I. agent Jones who testified that he had seen Orlando at that shopping center on the day in question. The trial judge instructed the jury that if a defendant voluntarily makes a statement tending to show his innocence which is later proved to be false, the jury may consider it as circumstantial evidence tending to show consciousness of guilt. Appellants contend that it was error to admit Orlando’s statement since he refused to sign a waiver of his rights. Miranda v. Arizona, supra, at page 475, 86 S.Ct. at page 1628 held that: “a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination . . .” Determination of whether a defendant knowingly and intelligently waived his rights depends upon the facts and circumstances of each case. Howard v. Swenson, 404 F. 2d 469 (8th Cir. 1968), and this court is fully aware that refusal to sign a waiver is only one factor to be considered. United States v. Ellis, 457 F.2d 1204 (8th Cir. 1972). However, the record in the instant case, in our opinion, clearly supports the trial judge’s conclusion that appellant Orlando knew his rights and voluntarily and intelligently waived his Miranda privilege. It is evident from his reading of the form in question, his declination to 'sign the same, and his subsequent refusal to answer further questions that Orlando was well aware of his rights and, notwithstanding, continued to answer questions. This is not to say that the mere fact that a statement was eventually obtained indicates that the accused waived his rights, see Miranda v. Arizona, supra, at 475, 86 S. Ct. 1602. However, that he understood the warning and waived his rights is seen from his subsequent statement that he did not wish to answer any more questions and decided to conclude the interview. See Klingler v. United States, 409 F.2d 299 (8th Cir.), cert. denied, 396 U.S. 859, 90 S.Ct. 127, 24 L.Ed.2d 110 (1969); United States v. Lomprez, 472 F.2d 860 (7th Cir. 1972), cert. denied, 411 U.S. 965, 93 S.Ct. 2144, 36 L.Ed.2d 685 (1973).

5) Appellants contend that the court erred in permitting the government to keep the defendant Accardi from testifying for the appellants herein. We find no merit in this contention. Anthony Accardi was named in the indictment as a co-conspirator and co-defendant. Prior to the appellants’ trial, Aecardi’s motion for severance was sustained. Appellants contend that Accardi would have given testimony beneficial to the defense and that the only purpose for the governmént’s naming him as a co-defendant was to insure that Accardi would take the Fifth Amendment, thus denying them the opportunity of presenting evidence favorable to their defense. In support thereof, defendants show: (1) the indictment against Ac-cardi was dismissed after the trial of the defendants; (2) a letter from Ac-eardi’s counsel stating that he would advise Accardi not to testify in defendants’ trial.

There is nothing in the record to show whether Accardi would have taken his attorney’s advice and declined to testify or if he would have testified, what his testimony would be. This court will not speculate as to whether Accardi would have testified or what might have happened had he taken the stand. See Bar-ba-Reyes v. United States, 387 F.2d 91 (9th Cir. 1967).

6) Appellants next assert that the court erred in receiving hearsay evidence of F.B.I. agent Jones as to statements made by Wozniak and, further, that the court erred in permitting Wozniak to testify as to telephone calls allegedly received from appellant Biondo without adequate foundation that the voice was that of Biondo. We do not agree. F.B.I. agent Jones was allowed to testify as to what Wozniak had told him concerning his (Wozniak’s) fears. Appellants first contend that this constituted hearsay and should not have been admitted and, second, that if the testimony was admitted to prove the state of mind, the testimony should have been excluded because .there was other evidence as to Wozniak’s state of mind and this evidence was prejudicial to appellants. The victim’s state of mind is an essential element of the crime charged. Nick v. United States, 122 F.2d 660, 671 (8th Cir.), cert. denied, 314 U.S. 687, 62 S.Ct. 302, 86 L.Ed. 550 (1941); United States v. Hyde, supra. The testimony in question was admitted as evidence of Wozniak's state of mind, not for the truth of Wozniak’s statements, and the hearsay rule has no application. 6 Wig-more on Evidence (3d Ed.) Section 1766. Furthermore, the trial judge specifically instructed the jury after the testimony was given that they were not to consider the testimony for the truth of Mr. Wozniak’s statement. In light of this instruction there was no prejudice to appellants. See United States v. Stirone, 311 F.2d 277 (3rd Cir. 1962), on remand from 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed. 2d 252 (1960), cert. denied, 372 U.S. 935, 83 S.Ct. 881, 9 L.Ed.2d 766 (1963).

On direct examination, Mr. Wozniak testified about two phone calls allegedly from Biondo, which threatened him and arranged a meeting for the payoff. Defendants claim that there was no sufficient foundation for the introduction of the evidence. A telephone conversation is admissible provided that the identity of the speaker is satisfactorily established. New York Life Ins. Co. v. Silverstein, 53 F.2d 986 (8th Cir. 1931). In determining whether a sufficient foundation has been established, the trial judge should consider whether the proof is such that the jury, acting as reasonable men, could find its authorship as claimed. United States v. Alper, 449 F.2d 1223 (3rd Cir. 1971), cert. denied, 405 U.S. 988, 92 S.Ct. 1248, 31 L. Ed.2d 453 (1972). Wozniak testified that he had two earlier conversations with Biondo and he stated at least twice that he could recognize Biondo’s voice and that Biondo had a manner of speaking “so different from anybody else’s in the world that I ever heard, and for that reason I would swear by my testimony that it was his (Biondo’s) voice.” Furthermore, identity may be proved by circumstantial evidence, Cwach v. United States, 212 F.2d 520 (8th Cir. 1954). Biondo’s May 20th presence at the meeting place and at the time arranged by the caller would certainly constitute circumstantial evidence as to the identity of the caller. Despite Wozniak’s admission that he had a hearing defect and that one of the phone calls was long distance, the evidence in this case clearly authorized the trial court’s submitting this issue to the jury.

7) Appellants also contend that the court erred in refusing to declare a mistrial when the prosecuting attorney commented in closing argument on failure of the appellants to testify. We disagree and find there was no prejudicial error resulting to the appellants in the court’s denying their motion for mistrial. The prosecuting attorney in his closing statement argued as follows:

• “Now, let’s go to May 25th, which is four days after Orlando and Biondo were arrested. The FBI has an interview with Joe Boy Scalise. Now, Joe Boy was very quick to say that he left the conversation with Willie Orlando and Joe Wozniak on May 18th and went shopping. This is four days after they were arrested for extortion. Very quick to inject that. Now, unless he were involved in the extortionate scheme why would he try to disassociate himself with a conversation that occurred on May 18th ?
“Now, it’s up to you folks to determine whether Mr. Wozniak, his testimony from that witness stand, is the truth. He’s the only participant in that May 18th meeting that’s testified here. Now, you wonder why . . . ”

At this point the defense objected on the grounds that the only other participants at the meeting were Scalise and Orlando and this was an improper comment on their failure to testify. After a short recess the trial court denied a motion for a mistrial and instructed the jury that if they were able to recall the last two statements in the closing statement, they were to disregard them. The court further instructed that “defendants never have any duty of calling any witnesses or producing any evidence.” The United States Attorney stated that the interrupted sentence was not going to be a comment on the failure to testify. That, however, does not seem to' be the question. The question should be whether the statements on the record, read in context, amounted to a comment on appellants’ failure to take the stand and, if so, whether said statements were prejudicial to the defendants. In determining whether the statements were improper comments, the appropriate standard is set forth as follows:

“The facts and circumstances of each case must be carefully analyzed to determine ‘whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.’ ” (citations omitted) United States v. Mahanna, 461 F.2d 1110, 1114-1115 (8th Cir. 1972).

Even if the court construes the statement to have had any relationship with appellants’ failure to testify, the indirectness of the comment when combined with the specific instruction to the jury renders it harmless error. See United States v. Mahanna, supra.

We have carefully and painstakenly examined the entire record of this protracted trial, and all errors raised by appellants. We find that no reversible error has been shown and that appellants have had a fair trial.

Accordingly, the judgments and sentences are affirmed.


author: OAKES, Circuit Judge:

text:
    ROYAL TYPEWRITER CO., DIVISION LITTON BUSINESS SYSTEMS, INC., Plaintiff-Appellant, v. M/V KULMERLAND, her engines, etc., v. HAMBURG-AMERIKA LINIE, Defendant-Appellee.
    No. 446, Docket 72-2067.
    United States Court of Appeals, Second Circuit.
    Argued April 2, 1973.
    Decided Aug. 13, 1973.
    F. Herbert Prem, New York City (Bigham, Englar, Jones & Houston, New York City, on the brief), for plaintiff-appellant.

      Michael J. Ryan, New York City (Ci-chanowicz & Callan, New York City, on the brief), for defendant-appellee.
    Before KAUFMAN, Chief Judge, and ANDERSON and OAKES, Circuit Judges.
   OAKES, Circuit Judge:

This is a suit in admiralty by a consignee to recover damages for the loss of 350 cartons of adding machines shipped in a container. It raises in a somewhat different context from that of previously decided cases the question whether the limitation of $500 damages “per package” in the Carriage of Goods by Sea Act (“COGSA”), 46 U.S.C. §§ 1300, 1304(5), applies only to the overall container itself, thus limiting the carrier’s liability, cf. Encyclopedia Britannica, Inc. v. S. S. Hong Kong Producer, 422 F.2d 7, 20 (2d Cir. 1969) (Hays, J., dissenting) (the majority decided the case on a basis which precluded the use of the $500 package limitation), cert. denied sub nom. Universal Marine Corp. v. Encyclopedia Britannica, Inc., 397 U.S. 964, 90 S.Ct. 998, 25 L.Ed.2d 255 (1970); Standard Electrica, S. A. v. Hamburg Sudamerikanische Dampfschifffahrts-Gesellschaft, 375 F.2d 943 (2d Cir.), cert. denied, 389 U.S. 831, 88 S.Ct. 97, 19 L.Ed.2d 89 (1967), or to each of the individual cartons so as to warrant recovery by the shipper for the loss of all its cartons. Cf. Leather’s Best, Inc. v. S. S. Mormaclynx, 451 F.2d 800, 814-816 (2d Cir. 1971). Judge Tyler below in a thoroughly reasoned opinion held that the entire container was the “package” in this case so that absent a declaration by the shipper of “the nature and value” of the goods therein, 46 U.S.C. § 1304(5), with payment of the accompanying higher transportation charge, the $500 package limitation was applicable. 346 F.Supp. 1019 (S.D.N.Y. 1972). We agree, on a slightly different basis, and, since a brief statement of the facts is necessary to analysis of the question presented, proceed to that statement.

The adding machines in question, worth approximately $29,000, were ordered and paid for by the consignee, Royal Typewriter Co. (“Royal”), from a Berlin manufacturer, Willi Feiler, GmbH (“Feiler”). Feiler delivered the 350 machines, together with 700 other machines, in single-wall corrugated cartons each approximately 15"xl0"xl0" in dimension, 12*4 pounds in weight, and sealed with thin paper tape, to a freight forwarder in West Berlin. There was evidence that shipment overseas of the machines in the individual cartons would have been totally impracticable and that before containers came into use the cartons were shipped overseas in lots of 12, 18 or 24 cartons packed in crates or wooden cases secured by metal bands.

Following Feiler’s delivery to the freight forwarder, the latter pursuant to direction from the shipper placed the cartons in three Contrans containers, each containing 350 cartons, weighing about 4200 pounds and with sealed doors. These containers were loaded aboard the S. S. Kulmerland. This vessel was owned by Hamburg-Amerika Linie, which was the predecessor of ap-pellee Hapag/Lloyd A.G. (“Lloyd”), a West German corporation and appellee here.

An ocean bill of lading was issued for all three containers including the one in question, No. 89. Under the heading “Number and kind of packages; description of goods” there is typed on the bill of lading as to each numbered container “1 Container said to contain Machinery,” without any reference to the number of cartons of adding machines or to the fact that the “Machinery” consisted of adding machines. There is also the notation “Shipped on board and stowed under deck.” The ocean freight chargeable for the shipping of Container 89 was $324.

While stored on arrival in New York in a “farm area” at a terminal at the foot of 17th Street, Container 89 was rifled of its contents. It is conceded on this appeal that the carrier is liable for the loss, Leather’s Best, Inc., supra, 451 F.2d at 807; David Crystal, Inc. v. Cunard Steam-Ship Co., 339 F.2d 295, 297-298 (2d Cir. 1964), cert. denied, 380 U. S. 976, 85 S.Ct. 1339, 14 L.Ed.2d 271 (1965), the only question being the amount of the loss in light of the COGSA damage limitation. For purpose of this appeal also the parties have agreed to dispose of the third party claims involving the terminal operator, its subcontractor and a protection service, among themselves so that the only issue to which we need direct our attention is the “package” one.

Appellant consignee strenuously urges that this case is governed by Leather’s Best, supra, although the bill of lading there specifically referred to “1 container s.t.c. 99 bales of leather”; the container there was 40/x8’x8/ in dimension and weighed about 10 tons, and the agent furnishing the container was the ocean carrier’s rather than the shipper’s and the agent gave a receipt specifically covering the 99 bales. Appellant argues that these are distinctions without a difference. It urges that containers vary in size. Appellant claims that it is immaterial whose agent obtains the container since the container is not an integral part of the shipment and does not become the property of the consignee. And, appellant suggests, whether the bill of lading specifies the number of cartons contained is of no importance, because the applicable freight rate is the same whether or not the bill of lading refers to the number of bales or cartons in the container. We incline to agree that these distinctions do not create as great a difference as the district court thought, although we recognize that the district court was steering a difficult course between Standard Eléctrica on the one hand and Leather’s Best on the other, with Judge Hays’ dissent in Encyclopedia Britannica, supra, thrown in for good measure, all in a field crying for new legislative action in the light of economic and transportation developments. We also realize that the learned district judge has changed his own position on the law somewhat: as his subsequent opinion in Rosenbruch v. American Export Isbrandtsen Lines, Inc., 357 P.Supp. 982 (S.D.N.Y.1973), explicates, he now seeks a test with ease of predictability in litigation involving shipper-packed containers — calling a container a § 4(5) “package” when it contains the goods of a single shipper, without regard to “[t]he accident of notations on the bill of lading.” He does this on the basis of the underlying policy that COGSA was intended to let the shipper obtain at his option marine insurance coverage, if he prefers the cheaper freight rates of larger packages. But we think this approach tends to beg the statutory question of what is a “package.” Moreover, the real parties in interest in this kind of case may be the marine insurers themselves, so that it is no answer to say that the availability of marine insurance is the determinative factor. As Chief Judge Friendly points out in Leather’s Best, 451 F.2d at 815: “ . . . for all we know, a ruling that each bale constituted a ‘package’ may simply be conferring a windfall on the cargo insurer . . . if it based its premium on the assumption that [the carrier’s] liability was limited to $500.”

The statutory purpose here leads us to suggest what for want of a better term we will call the functional economics test. In this regard, the first question in any container case is whether the contents of the container could have feasibly been shipped overseas in the individual packages or cartons in which they were packed by the shipper. Here it is plain that they could not feasibly have been shipped in those individual cartons ; adding machines are a delicate product — their little cardboard cartons, stapled and paper-taped, had never been shipped as such; in the days before containers they were shipped in wooden crates or cases containing 12 to 24 each. The metal containers in which the cartons were shipped in lots of 350 per container are essentially to be likened to the wooden crates or cases of days past; the use of the metal container of convenience to shipper and carrier alike was selected by the shipper and used without carrier objection. This court, in a different factual context in Nichimen Co. v. M.V. Farland, 462 F.2d 319, 334 (2d Cir. 1972), referred to Black’s Law Dictionary 1262 (4th ed. 1951), which defines a package as a “bundle put up for transportation or commercial handling a thing in form suitable for transportation or handling.” Until the adding machine cartons were packed in the container in question they were not suitable for ocean transportation or handling.

We suggest that underlying Leather’s Best, supra, is the concept that the “bales” there could have been shipped individually rather than in the container ultimately held not to be a “package.” See note 9 supra. Here, however, the individual cartons containing one adding machine each were simply not packing units suitable for overseas shipment. We view Leather’s Best as holding that, where the shipper’s own packing units are functional, a presumption is created that a container is not a “package” which must be overcome by evidence supplied by the carrier that the parties intended to treat it as such. Thus, this case is clearly distinguishable from Leather’s Best. When, as here, the shipper’s own individual units are not functional or usable for overseas shipment the burden shifts to the shipper to show why the container should not be treated as the “package.” The shipper has not met that burden here. While in Standard Eléctrica it is unclear whether or not the cartons could have been shipped as a practical matter in the absence of pallets, note 9 supra, we treat that case in its own language as one in which the parties’ apparent intent was given “considerable weight,” 375 F.2d at 946: the pallets there were characterized by the parties as packages.

Absent shipment in a functional packing unit, the burden is on the shipper to show by other evidence that his units are themselves “packages.” Only then does custom and usage in the trade, the parties’ own characterization or treatment of the items being shipped in supporting documentation or otherwise, and any other factor bearing on the parties’ intent become relevant, as in Standard Eléctrica or Leather’s Best.

The “functional package unit” test we propound today is designed to provide in a case where the shipper has chosen the container a “common sense test” under which all parties concerned can allocate responsibility for loss at the time of contract, purchase additional insurance if necessary, and thus “avoid the pains of litigation.” Standard Eléctrica, supra, 375 F.2d at 945.

Judgment affirmed.

      . The abbreviation “s.t.c.” means “said to contain.”

      . Judge Tyler did note that “[t]he physical appearance of container 89 was unlike that of the metal containers so widely used in recent years by ocean carriers; as stated, the container looked like the typical general cargo package.” 346 F.Supp. 1019, 1024. See also Leather’s Best, Inc. v. S.S. Mormaclynx, 451 F.2d 800, 815 (2d Cir. 1971). But a divided panel of this court has held that two floored 3'x3' wooden pallets (containing visible cartons of TV tuners) were packages, Standard Eléctrica, S.A. v. Hamburg Sudamerikanische Dampfschifffahrts-Gesellschaft, 375 F.2d 943 (2d Cir.), cert. denied, 389 U.S. 831, 88 S.Ct. 97, 19 L.Ed. 2d 89 (1967), so that unusual appearance is not of too great weight. Both the Convention for International Transport of Goods Under Cover of T.I.R. Carnets, art. 1(c) (v) [1967], 2 U.S.T. 185, T.I.A.S. No. 6633, and its proposed supplement, Customs Convention on Containers Ch. I, art. 1 (c) (vi), E/CONF. 59/46 (1972), define containers in part as “having an internal volume of one cubic metre or more.” The container here in question was 10 cubic meters in volume. Containers are obviously available from suppliers as they were here, in varying sizes (apparently generally 8' wide and 8' high, but varying in length).

      . Containers are a handling, loading and stowing device of great convenience to the carrier. Leather's Best, Inc., supra, 451 F.2d at 815-816 n. 19. They also may provide benefit to the shipper in the form of lower shipping costs.

      . When packages are stowed in a container which is then locked and sealed, as is the practice, the number of packages is not verifiable. Under COGSA, 46 U.S.C. § 1303(3) (c), the bill of lading need not show a quantity which the carrier “has had no reasonable means of checking.” Hence it can be argued that the quantity of packages contained may be irrelevant. Freight rates, moreover, are based on the nature of the goods and weight or dimensions of rhe container, not the number of packages. This court did say, however, in Nichimen Co. v. M.V. Farland, 462 F.2d 319, 335 (2d Cir. 1972), that “While the description on the bill of lading is not controlling . . . it is important evidence of the parties’ understanding . . . . ”

      . The decision below has been sharply criticized in Simon, Latest Developments in the Law of Shipping Containers, 4 J.Mar.L. & Com. 441 (1973). Attorney Simon, who was counsel for the losing appellant in Standard Eléctrica, supra, applauds Leather’s Best, supra, as holding under “sagacious and correct reasoning,” id. at 442, that “a container is not a ‘package.’ ” The Leather’s Best opinion, however, is not as broad as Simon states, as it left open the result if the shipper had packed the goods “in a container already on its premises and the bill of lading had given no information with respect to the number of bales.” 451 F.2d at 815.

      . The United States has with the United Kingdom and 18 other countries signed the 1968 Brussels Protocol, raising the rather unrealistic COGSA package limitation. The Protocol, however, has within it in Article 4(5) a “container clause,” see DeGurse, The “Container Clause” in Article 4(5) of the 1968 Protocol to the Hague Rules, 2 J.Mar.L. & Com. 131 (1970), and there is considerable doubt whether it will be ratified as a result. See the exchange of correspondence between the State Department and an interested party set forth in Editor’s Note, 3 J.Mar.L. & Com. 209, 210-11 (1971). The State Department there appeared to take the position that the clause and the Protocol might need to be changed in part depending on the outcome of Leather’s Best (then on appeal) and specifically said “it does not appear to us that it would be prudent to proceed with ratification until the international and domestic legal situation is clearer.” Id. at 211.

      . One economic development is, of course, the decrease in the value of the dollar between 1936 when COGSA was adopted and the present. One transportation development, surely not envisaged by Congress in 1936, was the use of containers as we know them for shipping.

      . We do not of course pass upon Rosenbruch, now on appeal. That case involves the still different factual question of household goods being shipped in a single 40'x8'x8' container and it does not appear how they were packed therein.

      . See Encyclopedia Britannica, supra, 422 F. F.2d at 20 (Hays, J., dissenting) : “I would thus hold that the parties intended each individual container to be considered as the functional packing unit . . . . ” Standard Eléctrica is by no, means inconsistent with a “functional packing unit” test; there “the shipper . . . chose to make up the cartons into a pallet, apparently for the reasons of greater convenience and safety in handling.” 375 F.2d at 946. But see 375 F.2d at 947-948 (Feinberg, J., dissenting) : “Strapping six cartons together on a platform with a board on top ‘to prevent other cargo and the [four metal] straps from cutting into the top two cartons’ did not make a package out of the six cartons, since the pallet was not also enclosed on the sides.” So too in Leather’s Best, the court (Friendly, C. J.) says that “ ‘package’ is thus more sensibly related to the unit in which the shipper packed the goods and described them than to a large metal object, functionally a part of the ship, in which the carrier caused them to be ‘con-tainecl.’ ” 451 F.2d at 815. The leather "bales” in Leather’s Best were cartons 4'x2'x 1½' with steel straps. Thus the court in Nichimen Co. v. M.Y. Farland, supra, 462 F.2d at 334, held that coils of steel were packages, whether or not they were wrapped in burlap, where sheet steel was rolled, strapped and tied with steel bands so as to be easier to handle.