author: HAYNSWORTH, Chief Judge:

text:
    ALFRED A. KNOPF, INC., et al., Appellees, v. William COLBY, as Director of Central Intelligence of the United States, and Henry Kissinger, as Secretary of State of the United States, Appellants. ALFRED A. KNOPF, INC., et al., Appellants, v. William COLBY, as Director of Central Intelligence of the United States, and Henry Kissinger, as Secretary of State of the United States, Appellees.
    Nos. 74-1478, 74-1479.
    United States Court of Appeals, Fourth Circuit.
    Argued June 3, 1974.
    Decided Feb. 7, 1975.
    Certiorari Denied April 14, 1975.
    See 95 S.Ct. 1555.
    Certiorari Denied May 27, 1975.
    See 95 S.Ct. 1999.

      Floyd Abrams, New York City (Eugene R. Scheiman, Loretta A. Preska and Cahill Gordon & Reindel, New York City, on brief), for Alfred A. Knopf, Inc.
    Melvin L. Wulf, New York City (John H. F. Shattuck, American Civil Liberties Union Foundation, New York City, on brief), for Marchetti and Marks.
    Irwin Goldbloom, Atty., U. S. Dept, of Justice (Carla A. Hills, Asst. Atty. Gen., Brian P. Gettings, U. S. Atty., David J. Anderson and Raymond D. Battocchi, Attys., U. S. Dept, of Justice, John S. Warner, Gen. Counsel, Lawrence R. Houston and John K. Greaney, Attys., C. I. A., Mark B. Feldman, Deputy Legal Adviser, and K. Eugene Malmborg, Asst. Legal Adviser, Dept, of State, on brief), for William Colby and Henry Kissinger.
    Before HAYNSWORTH, Chief Judge, and WINTER and CRAVEN, Circuit Judges.
   HAYNSWORTH, Chief Judge:

This is a sequel to United States v. Marchetti, 4 Cir., 466 F.2d 1309 in which, because of a secrecy agreement he had executed, we upheld an injunction prohibiting Marchetti’s public disclosure of classified information acquired by him during the course of his employment by the Central Intelligence Agency and requiring him to submit any material he intended to publish to that agency for its review in advance of publication.

After our earlier decision, Marchetti, in collaboration with John Marks, a former employee of the State Department who had bound himself not- to disclose classified information acquired by him during the course of his employment, prepared the manuscript of a book which the plaintiff, Alfred A. Knopf, Inc. intended to publish. After review in the CIA, a letter was written specifying the deletion of 339 items said to contain classified information. Later, after a conference with Marchetti and his lawyer, the CIA agreed to release. 114 of the deletions. Later another 29 deletion items were released and still later another 57, leaving 168 deletion items upon which the CIA stood fast.

This action was filed by Alfred A. Knopf, Inc., Marchetti and Marks in the United States District Court for the Southern District of New York, seeking an order which would permit the publication of the then remaining deletion items. On motion of the defendants, the action was transferred to the Eastern ■ District of Virginia where the Marchetti case had been tried and where it could come before the same judge who had tried Marchetti.

I.

At the trial, the four deputy directors of the CIA were presented as witnesses. Collectively they covered all of the 168 deletion items, each covering certain of them. Each testified, in effect, that the deletion item revealed information which was classified, that the information was classified from the inception of the program or from the time of the witness’ first contact with it and was still classified. With respect to most, if not all of the items, however, the witness was unable to say who classified the information, for Executive Order No. 10501, in effect in the relevant times, did not require the classifying officer to record his identity, as Executive Order No. 11652 now does. Nor were they certain about when a particular matter had been classified except certain of the items with respect to which the witness stated the information had been classified from the beginning or from the time of his first contact with it.

These witnesses were questioned about the manner in which they determined that particular items had been classified. Typically, the response was that the witness read the Marchetti-Marks manuscript, marked passages which he thought revealed classified information and then called upon members of the staff for research assistance. The witness indicated that he wished to be certain of his grounds and to make no mistake. The witness then reviewed classified documents produced by the staff, and, after consultation with staff assistants, made his determination or judgment that particular information was, indeed, classified. There were indications that the witness considered his own recollection, institutional history, reports of staff members and classified documents in deciding whether or not particular information was classified.

The District Judge was persuaded that information, which might be sensitive to our national defense or to our relations with foreign nations, is not classified until a classifying officer makes a conscious determination that the governmental interest in secrecy outweighs a general policy of disclosure and applies a label of “Top Secret” or “Secret” or “Confidential” to the information in question. The testimony of the deputy directors, with its imprecision and the generality of the considerations which they said underlaid their determinations seemed insufficient to persuade him that undisclosed individuals had gone through such conscious processes during the time of Marchetti’s employment. It seemed to him that the deputy directors were making ad hoc classifications of material after having read the Marchetti-Marks manuscript, though he recognized that the deputy directors denied that they were doing any such thing.

Late in the trial, the United States offered a batch of documents, most of them bearing “Top Secret” stamps and collectively containing information relating to the deletion items. Some of these documents dealt with the actual classification of certain information. When a document, for instance, specified that certain information relating to a particular program should be classified as “Top Secret” while other information respecting that program should be classified as “Secret”, the Judge accepted the document as showing that someone had gone through the conscious process of deciding whether, and in what degree, particular information should be classified. On this basis the District Judge found that the information embodied in 26 of the 168 items was classified during the time of Marchetti’s employment. As to the remainder of the 168 deletion items, however, he found the submitted documents of no persuasive value. He was of that opinion because he had been told that a document properly classified as “Top Secret” may contain some bits of information which are not classifiable at all. His difficulty was compounded by the fact that many of the documents marked “Top Secret” had been reproduced with all of their contents blocked out except for one paragraph, sentence or message relating to a deletion item. He reasoned that only the classifying officer could say what information in a particular document led him to classify the entire document “Top Secret” and that a limited disclosure of something extracted from a document classified as “Top Secret” did not establish classification of that information as “Top Secret” or even as being classified in any degree. Recognizing that the deputy directors, at the very least, had testified that the disclosed information was classifiable, he still was of the view that the testimony and the documents in combination did not prove that the disclosed classifiable information had in fact been classified by the unidentified and possibly unidentifiable classifying officer. Though recognizing that some or much of the disclosed information, revealed in the. deletion items, was “sensitive”, the District Judge concluded that the United States had not shown that the remaining 142 deletion items had been classified. He felt, in short, since reasonableness of classification was proscribed, as we held in Marchetti, appropriate recognition of the first amendment rights of Marchetti and of Marks required strict proof of classification which he found wanting under the standards developed at the trial.

When writing in Marchetti, we did not foresee the problems as they developed in the district court. We had not envisioned any problem of identifying classified information embodied in a document produced from the files of such an agency as the CIA and marked “Top Secret”, “Secret” or “Confidential”. Of course, a document containing the results of tests of highly secret equipment may contain an incidental reference to the weather on a given day at a designated place in the United States, but we foresaw no particular problem in separating the grain from such chaff. With our strictures against inquiry into the reasonableness of any classification, however, we perhaps misled the District Judge into the imposition upon the United States of an unreasonable and improper burden of proof of classification.

When the earlier case was before us, we had supposed that all information in a classified document in the possession of the CIA, except rather obvious chaff of the sort we have mentioned, should be held to be classified and not subject to disclosure. We were influenced in substantial part by the principle that executive decisions respecting the classifying of information are not subject to judicial review. See, e. g., EPA v. Mink, 410 U.S. 73, 93 S.Ct. 827, 35 L.Ed.2d 119 (1972). The October 1974 amendments to the Freedom of Information Act introduced new considerations. Title 5, Section 552(b)(1) of the United States Code has been amended to provide for non-disclosure of matters that are “(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order.” Furthermore, a new subsection was introduced into Section 552(a), paragraph (B) of the new subsection now numbered (4) specifically providing for judicial review de novo and specifically providing that the judge “may examine the contents of such agency records in camera to determine whether such records or any part thereof shall be withheld under any of the exemptions set forth in subsection (b) of this section, and the burden is on the agency to sustain its action.” The legislative history makes it clear that the Congress intended to overthrow the result of Mink. See, e. g., Conference Report No. 93-1200, U.S.Code Cong. & Admin.News, 93rd Cong., 2d Sess. pp. 6221 at 6223, 6226. That history also discloses a congressional intention that the judge need not inspect the document in camera or require its production. He may act on the basis of testimony or affidavits but, in appropriate cases, he now has a right by virtue of the statute to require production of the document for his inspection in camera.

Since the Freedom of Information Act as now amended clearly provides for judicial review of questions of classifiability, any citizen now can compel the production of information actually classified if its classification was not authorized by the Executive Order. These plaintiffs should not be denied the right to publish information which any citizen could compel the CIA to produce and, after production, could publish. We thus move to the conclusion that the deletion items should be suppressed only if they are found both to be classified and classifiable under the Executive Order.

We observed in Marchetti that the Congress has required the Director of the CIA to protect intelligence sources and methods from unauthorized disclosure. In keeping with the Congressional directive, Executive Order No. 11652, Classification and Declassification of National Security Information and Material, as amended by Executive Order No. 11714 provides in § (1)(A) that information shall be classified “Top Secret” if its disclosure would disrupt “foreign relations vitally affecting the national security,” would compromise “vital national defense plans * * * communications intelligence systems,” would reveal “sensitive intelligence operations” or disclose “scientific or technological' developments ■vital to national security.” Subparagraph B provides that information shall be classified as “Secret” if it reveals “significant military plans or intelligence operations.” This would encompass any significant intelligence operations not otherwise classifiable under Subparagraph A as “Top Secret.” Subparagraph C requires the classification as “Confidential” of all other information the unauthorized disclosure of which might reasonably be expected to damage the national security.

The author of this opinion has examined some, but not all, of the 142 deletion items. The information in at least some of them does relate to sensitive intelligence operations and to scientific and technological developments useful, if not vital, to national security. Such items would seem clearly to be classifiable under the authorization of the Executive Order; others may relate to intelligence sources or methods, the protection of which Congress has decreed in the National Security Act of 1947 and classifiable under the Executive Order.

The statutory requirement is not directed to any procedure. It simply requires protection of intelligence sources and methods against unauthorized disclosure, and provision of such protection may require a variety of activity. One obviously appropriate tool in providing that protection, however, is a system of classification required under a succession of Executive orders. Under the statute and those orders, a classifying officer is required to classify a document containing classifiable information and to determine the degree under the guidelines of the current Executive order. Under Executive Order No. 10501, he performed his duty by affixing the appropriate stamp, “Top Secret”, “Secret” or “Confidential.”

There is a presumption of regularity in the performance by a public official of his public duty. “The presumption of regularity supports the official acts of public officers, and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.’' United States v. Chemical Foundation, Inc., 272 U.S. 1 at 14, 15, 47 S.Ct. 1 at 6, 71 L.Ed. 131. That presumption leaves no room for speculation that information which the district court can recognize as proper for top secret classification was not classified at all by the official who placed the “Top Secret” legend on the document. This is so whether or not the document contains or may contain other information which should have been classified in the same degree. Under the prevailing practice of classifying a document in accordance with the most sensitive information it contains, the presumption, in the absence of affirmative proof to the contrary, requires the conclusion that all information within it, required by the Executive Order to be classified, was classified when the legend was affixed to the document, even though the particular bit of relevant information, alone, may be properly classified only in a lower degree than the document’s classification. In short, the government was required to show no more than that each deletion item disclosed information which was required to be classified in any degree and which was contained in a document bearing a classification stamp.

The presumption dispenses with another problem which bothered the District Judge, the time of classification. He took the view that the government must show that the document was classified before Marchetti left the service. We are dealing, however, with information acquired by Marchetti during his employment by the CIA. It simply cannot be supposed that no one performed the duty of classification until after his employment had terminated.

It would have been nice, of course, if, in each instance, the government could have identified and produced the classifying officer who, from other records or extraordinary memory, could have testified that he classified the document on a certain day and that, in doing so, he consciously intended to classify the relevant item of information. That was a practical impossibility, but, in light of the presumption, unnecessary. The office of the presumption, however, is supported by the testimony of the deputy directors that information was classified from the beginning of the operation to which it relates or from the time the Agency first received it.

Nor was it necessary for the government to disclose to lawyers, judges, court reporters, expert witnesses and others, perhaps, sensitive but irrelevant information in a classified document in order to prove that a particular item of information within it had been classified. It is not to slight judges, lawyers or anyone else to suggest that any such disclosure carries with it serious risk that highly sensitive information may be compromised. In our own chambers, we are ill equipped to provide the kind of security highly sensitive information should have. The national interest requires that the government withhold or delete unrelated items of sensitive information, as it did, in the absence of compelling necessity. It is enough, as we have said, that the particular item of information is classifiable and is shown to have been embodied in a classified document. This approach is consistent with the Freedom of Information Act which, as we have noticed, provides the judge only with discretionary authority even to require production of the document for his in camera inspection; he may find the information both classified and classifiable on the basis of testimony or affidavits.

It is said, however, that some classifiable information is not classified. Reference is made to disclosure of this country’s development of Multiple Independently Targeted Reentry Vehicles and the release of information about North Vietnamese forces operating in South Vietnam, including the identity of units, their strength and the routes they took to reach their operating areas. These disclosures, however, were the result of high level executive decisions that disclosure was in the public interest, to counter popular and congressional pressure for more missiles, in the first instance, and, in the second instance, to bolster domestic support for our own military effort in South Vietnam. They are instances of declassification by official public disclosure. There has been no such disclosure of any of the information with which we are concerned, and there is nothing in the record to suggest that any of this classified information has, otherwise, been officially declassified. In the absence of declassification and of any countervailing evidence, the testimony of the deputy directors and the presumption of regularity compel a finding that information properly classified under the guidelines of the applicable Executive Order and embodied in a document bearing a classification stamp was classified at the time the information first came into the possession of the Agency or Department.

Moreover, if the documents in evidence, the testimony of the deputy directors and the presumptions compel a judicial finding that the material is both classifiable and classified, the plaintiffs are not without an avenue of relief within the Executive Branch. Under § 7 of Executive Order 11652, the National Security Council was given the responsibility of monitoring the implementation of the Order. To assist the Council, an Interagency Classification Review Committee, was created. It is authorized to consider and act upon suggestions and complaint from persons within and without government. Composed of representatives of the Departments of State, Defense, and Justice, the Atomic Energy Commission, the Central Intelligence Agency and the Staff of the Security Council, it would not be expected to serve any parochial interest of a particular agency unless it coincided with the national interest. The members of the Review Committee, far more than any judge, have the background for making classification and declassification decisions. If, therefore, any of the items in dispute are thought to be properly declassifiable now, there appears to be an available administrative remedy which is far more effective than any the judiciary may provide, which can function without threat to the national security and which can act within the Executive’s traditional sphere of autonomy.

For such reasons, we conclude that the burden of proof imposed upon the defendants to establish classification was far too stringent and that it is appropriate to vacate the judgment and remand for reconsideration and fresh findings imposing a burden of proof consistent with this opinion and including the additional element of classifiability.

II.

We decline to modify our previous holding that the First Amendment is no bar against an injunction forbidding the disclosure of classifiable information within the guidelines of the Executive Orders when (1) the classified information was acquired, during the course of his employment, by an employee of a United States agency or department in which such information is handled and (2) its disclosure would violate a solemn agreement made by the employee at the commencement of his employment. With respect to such information, by his execution of the secrecy agreement and his entry into the confidential employment relationship, he effectively relinquished his First Amendment rights.

III.

The District Judge properly held that classified information obtained by the CIA or the State Department was not in the public domain unless there had been official disclosure of it. This we strongly intimated in our earlier opinion. Rumors and speculations circulate and sometimes get into print. It is one thing for a reporter or author to speculate or guess that a thing may be so or even, quoting undisclosed sources, to say that it is so; it is quite another thing for one in a position to know of it officially to say that it is so. The reading public is accustomed to treating reports from uncertain sources as being of uncertain reliability, but it would not be inclined to discredit reports of sensitive information revealed by an official of the United States in a position to know of what he spoke. The problem is highlighted and the appropriateness of the answer we reach emphasized by the fact that Marks, on Fifth Amendment grounds, on five different occasions declined to answer whether he was the undisclosed source of information contained in five magazine articles offered by the plaintiffs to show that the information was in the public domain. A public official in a confidential relationship surely may not leak information in violation of the confidence reposed in him and use the resulting publication as legitimating his own subsequent open and public disclosure of the same information. The same rule must apply though there be no basis for suspicion that one of the plaintiffs was the undisclosed source of the previously published information, for security of all official secrets would break down if speculative and unattributed reports were held to have removed all of their protection from them.

It is true that others may republish previously published material, but such republication by strangers to it lends no additional credence to it. Marchetti and Marks are quite different, for their republication of the material would lend credence to it, and, unlike strangers referring to earlier unattributed reports, they are bound by formal agreements not to disclose such information.

One may imagine situations in which information has been so widely circulated and is so. generally believed to be true, that confirmation by one in a position to know would add nothing to its weight. However, appraisals of such situations by the judiciary would present a host of problems and obstacles. It may readily be done by the Interagency Classification Review Committee. If a particular item is held by the court to be not in the public domain because not officially disclosed, the Review Committee may still find that it has so far entered the public domain that it should be declassified. As long as it remains classified, however, there should be no further judicial inquiry.

IV.

On the basis of what the District Judge described as “an extremely subjective judgment” he found that seven of the deletion items contained information which was either learned by them outside of their employment or was learned both during their employment and after-wards and would have been learned afterwards “in any event.” He concluded that they could publish the information contained in those items.

The agreement, of course, covers only information learned by them during their employment and in consequence of it. It does not cover information gathered by them outside of their employment or after its termination. They may not publish information first received by them during the course of their employment even though they later learned of it by communications which did not place the information in the public domain. In a sense, they may be said to have later learned all of the information contained in articles and other materials offered by them in an attempt to show that certain information was in the public domain, but that is not the kind of knowledge acquisition which places the material beyond the reach of the secrecy agreements. Information later received as a consequence of the indiscretion of overly trusting former associates is in the same category. In short, the individuals bound by the secrecy agreements may not disclose information, still classified, learned by them during their employments regardless of what they may learn or might learn thereafter.

Moreover, neither should be heard to say that he did not learn of information during the course of his employment if the information was in the Agency and he had access to it. At least, a substantial presumption should be raised against him in those circumstances. With whatever apparent sincerity a fallible recollection may be expressed, one in Marchetti’s high position in the CIA should be presumed to have been informed of all important items of information to which he had access.

On remand the District Judge should review these general findings in light of this opinion, authorizing disclosure of those items of information only which first came to them unofficially after the termination of their employment.

V.

The judgment is affirmed in part, vacated in part and remanded for such further proceedings as may be necessary in accordance with this opinion.

Affirmed in part; vacated in part; remanded.

      . November 10, 1953, 18 Fed.Reg. 7049.

      . March 10, 1972 as amended April 26, 1973, 38 Fed.Reg. 10245.

      . Pub.L.No. 93-502, 88 Stat. 1561.

      . § 552(b)(3) was not amended. It exempts matters “specifically exempted from disclosure by statute.” The statutory direction to the Director to protect intelligence sources and methods from unauthorized disclosure m.ay be such a statute, but such information is also clearly authorized to be classified by the Executive order. The problems that will arise therefore will be concerned with the application of (b)(1) rather than (b)(3).

      . 50 U.S.C.A. § 403(d)(3). See Marchetti, 466 F.2d 1309 at 1316.

        . 38 Fed.Reg. 10245.

      . 50 U.S.C.A. § 403(d)(3).


source: Caselaw Access Project

author: FEINBERG, Circuit Judge:

license: Public Domain

text:
    Sidney DANIELSON, Regional Director of the National Labor Relations Board, Region 2, for and on behalf of the National Labor Relations Board, Petitioner-Appellant, v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL UNION NO. 501, AFL-CIO, Respondent-Appellee.
    No. 345, Docket 74-1927.
    United States Court of Appeals, Second Circuit.
    Argued Dec. 11, 1974.
    Decided Jan. 31, 1975.

      Marvin Roth, Deputy Asst. Gen. Counsel, National Labor Relations Bd., Washington, D. C. (Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Gerald Brissman, Associate Gen. Counsel, Eric Moskowitz, Atty., Washington, D. C., on the brief), for petitioner-appellant.
    Ralph P. Katz, New York City (Delson & Gordon, New York City, on the brief), for respondent-appellee.
    Before FEINBERG and MULLIGAN, Circuit Judges, and BRYAN, District Judge.

       Of the United States District Court for the Southern District of New York, sitting by designation.

   FEINBERG, Circuit Judge:

Sidney Danielson, Regional Director of the National Labor Relations Board, Region 2, appeals from an order of the United States District Court for the District of Connecticut, Jon O. Newman, J., denying a petition for an injunction sought by appellant under section 10(7) of the National Labor Relations Act, 29 U.S.C. § 160(7) pending resolution of unfair labor practice charges against respondent International Brotherhood of Electrical Workers, Local Union No. 501, AFL-CIO. Concluding that the Board’s petition rested on an erroneous legal theory, the district judge denied injunctive relief. We affirm the judgment of the district court, but on other grounds.

I

The charges against the Union were filed in April 1974 by the Associated General Contractors of Connecticut, Inc., an employer bargaining association, on behalf of Atlas Construction Company, alleging that the Union had violated section 8(b)(4)(B) of the Act, 29 U.S.C. § 158(b)(4)(B), which prohibits secondary boycotts. Secondary boycott claims usually involve complicated facts and this case is no exception. For our purposes, however, the facts may be briefly summarized as follows: In March 1974, Atlas was functioning as the general contractor for construction of two buildings in Stamford, Connecticut. Atlas had subcontracted the electrical work, exclusive of the provision of temporary power for construction purposes, to Peter M. Santella Co. and Rice Electrical Contracting Co. The electricians employed by these subcontractors were all members of, or represented by, the Union. A clause in the Union contract with Santella and Rice1 provided that:

Where wiring systems and equipment are required for lighting, power, heat, etc., during the period of construction of a building, these systems and equipment shall be installed, maintained and operated by electrical workers.

When the Union discovered that non-electrician employees of Atlas were assigned to operate the switch controlling the temporary power supplies at the construction sites, it removed its members briefly from the jobs, claiming a violation of this clause. The electricians returned to work for Santella when he agreed to pay out of his own pocket the overtime salary of an electrician to stand by while Atlas’s employees turned off the temporary power after the electricians’ usual quitting time. Thus, as Judge Newman pointed out, the Union secured “at least the economic benefit” of its contract with Santella “without any action on the part of the general contractor [Atlas].” The dispute with Rice apparently was never formally resolved, but the electricians soon returned to work.

Appellant Regional Director maintains that the Union’s actions amounted to a secondary boycott intended to force Atlas to subcontract the temporary electrical work to Santella and Rice, instead of performing it more cheaply for itself. According to the Regional Director, Santella and Rice are mere neutrals caught in the crossfire of this dispute. The Union, on the other hand, contends that the quoted contract language is merely a work preservation clause, which requires employers like Santella and Rice to see to it that their agreements with general contractors like Atlas entitle them to perform the temporary electrical work so that Union members will be able to do it. The failure of Santella and Rice to drive such a bargain with Atlas is all that the strike was directed against.

Judge Newman rejected what he regarded as the Regional Director’s assertion that an unlawful secondary boycott can be established by showing only that coercive pressure was exerted upon an employer which at the time of the dispute had no right of control over assignment of the disputed work. According to the judge:

The Board has repeatedly sought to assert secondary activity on the basis of a per se right of control test, and has been rebuffed by the Courts of Appeals of five circuits, all of which have viewed right of control as only one relevant but not the determining factor in identifying secondary activity-

The district court concluded that:

[W]hen an employer is subjected to coercive pressure after he has negotiated the contract that places him in violation of his own agreement with a union, that pressure, in the absence of activity directed at third parties, is primary within the meaning of § 8(b)(4)(B).

Relying on our decision in Danielson v. Joint Board, ILGWU, 494 F.2d 1230, 1239 — 1245 (1974), Judge Newman denied the injunction because in his view the Board was relying on an incorrect legal theory unlikely to be accepted by this court, and dismissed the action.

The Regional Director filed his notice of appeal on June 26, five weeks later. Some time after that, the construction projects were completed. The Regional Director sought no stay of any kind and made no effort to expedite the appeal. Consequently, it was not argued until December 11, 1974.

Commendably, however, the unfair labor practice charge before the Board was processed very promptly. After the consolidated complaint against the Union was issued, a hearing before the administrative law judge was held on May 21. Apparently, the evidence included only the record made before Judge Newman in the last week of April and the testimony of a single witness; the briefs consisted essentially of the memoranda submitted to the district court. On June 27, the administrative law judge (a former General Counsel of the Board) dismissed the complaint in its entirety. Exceptions were filed and the case was submitted to the Board by the last week of August. No decision has yet been rendered.

II

The case now stands just short of being moot. A decision in the unfair labor practice proceeding, now pending before the Board for over five months, would render an opinion by us advisory. Sears Roebuck & Co. v. Carpet Layers Local 419, 397 U.S. 655, 90 S.Ct. 1299, 25 L.Ed.2d 637 (1970); Los Angeles Herald-Examiner v. Kennedy, 400 U.S. 3, 91 S.Ct. 12, 27 L.Ed.2d 2, vacating, 430 F.2d 317 (9th Cir. 1970). But cf. Solien v. Miscellaneous Drivers Local 610, 440 F.2d 124, 127 — 128 (8th Cir.), cert. denied, 403 U.S. 905, 91 S.Ct. 2206, 29 L.Ed.2d 680 (1971). Even if this case is not technically moot, however, we are not disposed to reverse the district court on the present record.

On a number of occasions, we have discussed the standards to be used in deciding whether a district court should issue a 10(i) injunction. Almost ten years ago, in McLeod v. IBEW Local 25, 344 F.2d 634, 638 (2d Cir. 1965) (Marshall, J.), we held that:

In § 10(7) proceedings the function of the federal district court consists of determining (1) whether the temporary injunctive relief would be “just and proper” in terms of general equitable principles and (2) whether there is “reasonable cause” for the Regional Director “to believe such [unfair labor practice] charge is true and that a complaint should issue . . ..”

In Danielson v. Laborers Local 275, 479 F.2d 1033, 1036 (2d Cir. 1973), we reaffirmed this holding, saying:

We see no reason here to depart from this statement of the law. Section 10(7) in haec verba provides that the District Court shall have jurisdiction to grant such injunctive relief “as it deems just and proper.” The Section therefore does not mandate the preliminary injunction simply because the District Court concludes that the Regional Director has reasonable ground to believe that an unfair labor practice has occurred. The Act gives the Court discretion by employing the “just and proper” language. See United Brotherhood of Carpenters & Joiners v. Sperry, 170 F.2d 863, 869 (10th Cir. 1948). In Local 25, supra, our Court simply held that in applying the “just and proper” norm the District Court should be guided by the application of general equitable principles. We see no impropriety in this since the District Court albeit authorized by the statute to grant injunctive relief, is exercising its equity powers.

See also Danielson v. Joint Board, ILGWU, supra.

With these statements in mind, one factor we should consider in this ease is whether there is a pressing need for extraordinary equitable relief. Appellant has recently emphasized to us that

the purpose of 10(7) was not to prevent irreparable damage to the Employer but to protect the public interest in maintaining the free flow of commerce and to encourage collective bargaining.

Danielson v. Laborers Local 275, supra, 479 F.2d at 1035. Assuming arguendo that this is so, one wonders how significant the public interest sought to be vindicated by an injunction now is, in the face of appellant’s leisurely prosecution of the present appeal. This court stands ready, if the circumstances justify it, to give the fastest consideration consonant with sound judgment to cases in which the Government (or any party) seeks review of the grant or denial of preliminary relief. See, e.g., Socialist Workers Party v. Attorney General of the United States, 509 F.2d 253 (2d Cir. 1974); United States v. New York Times Co., 444 F.2d 544 (2d Cir.) (en banc), rev’d, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971). Section 10(7) itself provides that “the preliminary investigation” of the charge here against the Union “shall be made forthwith and given priority-over all other cases except cases of like character . . . ” and if “the officer or regional attorney” handling the matter “has reasonable cause to believe such charge is true and that a complaint should issue, he shall, on behalf of the Board, petition” the district court for interim relief. [Emphasis added.] It cannot be that the command to Board personnel to give priority to cases of this sort somehow loses its force once a petition has been filed in the district court and the injunction has been denied.

We feel justified, then, in taking appellant’s failure to seek expedited review as a recognition that there is no real danger of irreparable harm to the public interest in the limited period until the Board rules in the pending unfair labor practice proceeding. See Fuchs v. Steel-Fab, Inc., 356 F.Supp. 385, 388 (D.Mass.1973). Cf. Getreu v. International Typographical Union, 205 F.Supp. 931 (S.D.Ohio 1962). Indeed, appellant’s prime purpose in taking this appeal seems to be to obtain from still another circuit a ruling on application of the right of control doctrine, assertedly the underlying legal issue here. In view of the Board’s unhappy experience to date on this issue in many other cases, we can understand why appellant seeks to obtain a holding which might stimulate a grant of certiorari. But we do not see why, on an appeal from denial of a preliminary injunction, we should encourage appellant in this quest when the need for interim relief is doubtful, appellant’s position on the merits is questionable in view of the district court’s decision, and the issue will ultimately be presented in fuller and final form after the Board has acted on the unfair labor practice charge. The fact that the review of that order may be in another circuit and the Board prefers to take its chances here is not an overpowering reason to grant equitable relief.

The need for preliminary relief is further diminished by the completion of the construction projects with which the Union was allegedly interfering. Although appellant cites cases which hold that a suit for section 10(7) injunctive relief is not mooted by the cessation of a claimed unfair labor practice, these cases, if anything, make — rather than harm — the point we regard as determinative. For example, in Laborers Local 275, supra, the Regional Director had been, as here, unsuccessful in the district court. But then he moved in this court, a month later, for a temporary injunction and for an expedited appeal. Both were granted and argument was heard less than a month after the motion. See also Kaynard v. Independent Routemen’s Ass’n, 479 F.2d 1070 (2d Cir. 1973) (motion of Regional Director for temporary injunction and expedited appeal made within one month after district court denied injunction; injunction pending appeal granted; appeal heard one month after motion); National Maritime Union v. Commerce Tankers Corp., 457 F.2d 1127 (2d Cir. 1972). In other cases relied upon by appellant, the appeal by the Regional Director seems to have been taken much more expeditiously than this one or the cases are distinguishable for other reasons. It is true that in Douds v. International Longshoremen’s Ass’n, 242 F.2d 808 (2d Cir. 1957), we reversed an order denying section 10(7) injunctive relief although apparently the Regional Director did not press for a speedy appeal. In Douds, however, a union had engaged in particularly offensive strong-arm conduct which, if repeated, threatened to disrupt the whole New York waterfront. In addition, we there relied, 242 F.2d at 812, on a construction of section 10(7) that the Supreme Court has since made clear was erroneous. Sears Roebuck & Co. v. Carpet Layers Local 419, supra; see also Vincent v. Teamsters Local 294, 424 F.2d 124, 129 n. 10 (2d Cir. 1970).

Appellant does claim in his brief that because “the Union’s primary dispute has not been resolved, it may fairly be anticipated . . . that the Union will resume or repeat its unlawful conduct or similar or like acts and conduct.” But appellant cites no support for this assertion in the record. The district judge made no finding of fact on the issue. As we indicated above, a key consideration for us is whether the public interest now requires us to direct the district judge to grant an injunction for the period — the duration of which is determined by the Board — until the Board decides the unfair labor practice proceeding. Under all the circumstances, we are unwilling to do so. Of course, our decision here should not be construed as indicating any view on the underlying question whether the Union’s activity is properly characterized as primary or secondary.

The judgment of the district court is affirmed.

      . The section provides:
      (1) Whenever it is charged that any person has engaged in an unfair labor practice within the meaning of paragraph (4)(A), (B), or (C) of section 158(b) of this title, or section 158(e) of this title or section 158(b)(7) of this title, the preliminary investigation of such charge shall be made forthwith and given priority over all other cases except cases of like character in the office where it is filed or to which it is referred. If, after such investigation, the officer or regional attorney to whom the matter may be referred has reasonable cause to believe such charge is true and that a complaint should issue, he shall, on behalf of the Board, petition any United States district court within any district where the unfair labor practice in question has occurred, is alleged to have occurred, or wherein such person resides or transacts business, for appropriate injunctive relief pending the final adjudication of the Board with respect to such matter. Upon the filing of any such petition the district court shall have jurisdiction to grant such injunctive relief or temporary restraining order as it deems just and proper, notwithstanding any other provision of law

      . The contract was with an association of electrical contractors, to which Santella and Rice belonged.

      . The Regional Director maintains that the Board does not use a per se right of control test, but looks to all the circumstances — with the right of control taking a significant place — in determining whether a boycott is secondary.

      . The district court cited the following authorities: Carpenters Local 742 v. NLRB, 144 U.S. App.D.C. 20, 444 F.2d 895, cert. denied, 404 U.S. 986, 92 S.Ct. 447, 30 L.Ed.2d 371 (1971); Beacon Castle Square Bldg. Corp. v. NLRB, 406 F.2d 188, 192 n. 10 (1st Cir. 1969); NLRB v. IBEW Local 164, 388 F.2d 105, 109 (3d Cir. 1968); American Boiler Mfrs. Ass’n v. NLRB, 404 F.2d 556, 560-561 (8th Cir. 1968); Western Monolithics Concrete Prods., Inc. v. NLRB, 446 F.2d 522, 526 (9th Cir. 1971); Danielson v. Painters Dist. Council 20, 305 F.Supp. 1108 (S.D.N.Y.1969). Since the district judge’s opinion, the Court of Appeals for the District of Columbia Circuit has again ruled squarely against the Board, Carpenters Local 433 v. NLRB, 509 F.2d 447 (1974). But see George Koch Sons, Inc. v. NLRB, 490 F.2d 323 (4th Cir. 1973), which Judge Newman distinguished.

      . See note 4 supra.

      . That the very issue on which a decision is now sought can thus be presented for review serves to distinguish Solien v. Miscellaneous Drivers Local 610, supra, relied on by appellant. In that case, the issue was not a substantive one, as it is here, but rather was whether the charging party could appear or intervene as a party in a section 10(7) proceeding in the district court, a question which the Eighth Circuit assumed would not be reviewable in any other proceeding.

      . Counsel for the Union candidly admitted at oral argument that he would advise his client to seek review of an adverse Board ruling in the District of Columbia Circuit since decisions there make it seem unlikely that the court would uphold an unfair labor practice finding.

      . Retail Clerks Local 137 v. Food Employers Council, Inc., 351 F.2d 525 (9th Cir. 1965) (less than four months from grant of injunction to which Regional Director objected until decision of court of appeals).

      . E.g., it was clear that the particular charge was but a specific instance of a general pattern of unlawful union conduct, see Slater v. Denver Bldg. & Constr. Trades Council, 175 F.2d 608, 610-611 (10th Cir. 1949), or the courts had found the illegal action likely to recur, see Shore v. Building & Constr. Trades Council, 173 F.2d 678, 682 (3d Cir. 1949); cf. McLeod v. Local 25, IBEW, supra, 344 F.2d at 639.

      . Appellant’s. Brief, 55-56.

      . This does not mean that the placement of the burden of showing the likelihood of repetition would be the same were we asked to enforce a Board order. See NLRB v. Raytheon Co., 398 U.S. 25, 90 S.Ct. 1547, 26 L.Ed.2d 21 (1970).


author: ROSENN, Circuit Judge:

text:
    V. A. DAVIS et al., Plaintiffs-Appellees, v. M/V ESTER S, her engines, boilers, tackle, etc., and the BARGE AUNT MAME, Defendants, Steuart Transportation Company, Movant-Appellant.
    No. 74-1933.
    United States Court of Appeals, Fifth Circuit.
    March 24, 1975.
    Rehearing and Rehearing En Banc Denied April 30, 1975.

      James F. Moseley, Jacksonville, Fla., W. B. Ewers, John A. Prokop, Jr., Washington, D. C., for movant-appellant.
    W. O. Birchfield, Jacksonville, Fla., James N. Jacobi, Washington, D. C., for plaintiff s-appellees.
    Jack C. Rinard, Tampa, Fla., for other interested parties.
    Before THORNBERRY, COLEMAN and ROSENN, Circuit Judges.

       Of the Third Circuit, sitting by designation.

   ROSENN, Circuit Judge:

This appeal presents issues of interest to maritime' navigation in the delicate waters of federal-state relations. Florida requires that certain vessels, upon entering or leaving her ports, take on state-licensed pilots, for whose services a fee is charged. In order to discourage noncompliance, Florida holds vessels liable for the fee whether or not pilots actually are utilized. We must determine whether, insofar as the Florida pilotage statute applies to nonself-propelled barges carrying inflammable or combustible liquid cargo in bulk, it is preempted by federal legislation.

The St. Johns Bar Pilot Association (Pilot Association) instituted this in rem admiralty action to recover a fee of $156.00 for pilot services which were offered to but refused by the tug ESTER “S” and her tow, the barge “AUNT MAME.” The Pilot Association served process only on the “AUNT MAME,” which was claimed by Steuart Transportation Company (Steuart). The United States District Court for the Middle District of Florida heard the case as on cross-motions for summary judgment. In connection with their motions, the parties submitted exhibits and a stipulation of facts, the relevant portions of which we shall summarize.

The “AUNT MAME,” towed by the ESTER “S,” left Philadelphia, Pennsylvania, bound for Jacksonville, Florida. Although the crew members of the “AUNT MAME” were federally licensed, none held a valid federal or state, pilot’s license for the Port of Jacksonville. When the barge and tug reached the mouth of the St. Johns River, the Pilot Association offered to provide a state-licensed pilot for the inbound passage to the Port of Jacksonville. The pilot’s services were refused.

The “AUNT MAME” is a federally enrolled and inspected tank barge, specially constructed to transport liquid bulk cargo. At the time of its voyage to Jacksonville, the “AUNT MAME” was transporting asphalt, an inflammable or combustible liquid cargo in bulk.

The district court held that the “AUNT MAME” was not a “coastwise seagoing steam vessel” on which federal pilots are required and that, since federal law did not require a pilot, Florida’s pilotage statute is not preempted as applied to the “AUNT MAME” and similar vessels. We reverse.

I.

The Pilot Association acknowledges that the constitutional grant of power to the federal government to regulate commerce with foreign nations and among states includes the power to regulate pilotage. U.S.Const. art. I, § 8. It contends, however, that at the time the Constitution was adopted the maritime states regulated pilotage and that Congress in 1789 plainly indicated that state regulation was to continue until Congress specifically provided otherwise. Act of Aug. 7, 1789, ch. 9, § 4, 1 Stat. 54, 46 U.S.C. § 211 (1970). The Pilot Association asserts that Congress has not withdrawn from the states regulatory power over pilotage of nonself-propelled vessels. We disagree.

Congress has required that “coastwise seagoing steam vessels,” with certain exceptions not here relevant, be manned by federally licensed pilots in coastal waters.

[E]very coastwise sea going steam vessel subject to the navigation laws of the United States, and to the rules and regulations aforesaid, not sailing under register, shall, when under way, except on the high seas, be under the control and direction of pilots licensed by the Coast Guard.

46 U.S.C. § 364 (1970), formerly 52 R.S. § 4401; see Olsen v. Smith, 195 U.S. 332, 343, 25 S.Ct. 52, 49 L.Ed. 224 (1904); Spraigue v. Thompson, 118 U.S. 90, 96, 6 S.Ct. 988, 30 L.Ed. 115 (1886). Thus, the threshold question is whether the “AUNT MAME” is a “coastwise seagoing steam vessel” for purposes of section 364.

Congress broadened the definition of a “steam vessel” as that term was employed in title 52 of the Revised Statutes to include barges transporting certain hazardous cargoes.

Sec. 4417a. (1) All vessels, regardless of tonnage, size, or manner of propulsion, and whether self-propelled or not, and whether carrying freight or passengers for hire or not, that shall have on board any inflammable or combustible liquid cargo in bulk, except public vessels owned by the United States, other than those engaged in commercial service, shall be considered steam vessels for the purposes of this title [52] and shall be subject to the provisions thereof

Act of June 23, 1936, ch. 729, 49 Stat. 1889, 52 R.S. § 4417a, as amended, 46 U.S.C. § 391a(l) (1970). Because on this voyage to Jacksonville the “AUNT MAME” was transporting asphalt, an inflammable or combustible liquid cargo in bulk, the district court concluded, as do we, that the “AUNT MAME” was a “steam vessel.” The district court went on to hold, however, that, even though Congress expressly expanded the definition of “steam vessel” “for purposes of this title [52],” it intended the broadened definition to apply only to the inspection provisions of title 52 and not to provisions of the same title governing operation and manning, including piloting, of such vessels. We. disagree.

We are persuaded that Congress, in enacting section 391a, was concerned with the operation and manning of steam vessels as well as with their inspection. One year earlier, during the first session of the Seventy-fourth Congress, similar legislation was passed which proved inadequate to achieve the objectives intended by its drafters. Act of Aug. 26, 1935, ch. 697, 49 Stat. 868. This legislation, Public 343, as it was known, was intended to “bring about a reasonable and uniform set of rules and regulations concerning . . . operation and manning” of vessels transporting hazardous cargoes. H.R.Rep. No. 2962, 74th Cong., 2d Sess., at 2 (1936). The Solicitor of the Department of Commerce ruled, however, that under Public 343

no rules and regulations could be made regarding manning or the operation or movement of the vessel, its cargo, or any of its equipment. Inasmuch as these items constituted a great part of the hazard against which protection was needed, it was deemed best to secure this legislation [section 391a].

Id. Congress thereupon authorized the Department of Commerce to promulgate regulations “with respect to the operation of such vessels; and with respect to the requirements of the manning of such vessels and the duties and qualifications of the officers and crews thereof . .” Act of June 23, 1936, ch. 729, 49 Stat. 1889, as amended, 46 U.S.C. § 391a(2) (1970). In so doing, we believe it evinced an overall intent to legislate beyond the sphere of inspection.

Section 391a(l) expressly provides a broadened definition of “steam vessel” “for purposes of this title [52].” This language plainly extends the expanded definition to all of title 52, including present section 364 requiring federally-licensed pilots. The Pilot Association has not brought to our attention, nor have we found, legislative history which, in the face of section 391a(l)’s unequivocal language, would justify a more restrictive interpretation. We therefore conclude that the “AUNT MAME” was a “steam vessel” for purposes of section 364. Since the “AUNT MAME” is enrolled as a “coastwise” vessel, we hold that it was a “coastwise seagoing steam vessel” on which a federally-licensed pilot is required.

II.

The question remains whether Congress, in requiring that “coastwise seagoing steam vessels” be under the “control and direction” of federally-licensed pilots, intended to exempt such vessels from state pilotage laws.

Congress has provided substantial guidance in this regard.

No State or municipal government shall impose upon pilots of steam vessels any obligation to procure a State or other license in addition to that issued by the United States, or any other regulation which will impede such pilots in the performance of the duties required by title 52 of the Revised Statutes; nor shall any pilot charges be levied by any such authority upon any steamer piloted as provided by title 52 of the Revised Statutes; and in no case shall the fees charged for the pilotage of any steam vessel exceed the customary or legally established rates in the State where the same is performed. Nothing in title 52 of the Revised Statutes shall be construed to annul or affect any regulation established by the laws of any State, requiring vessels entering or leaving a port in any such State, other than coast-wise steam vessels, to take a pilot duly licensed or authorized by the laws of such State, or of a State situate upon the waters of such State.

46 U.S.C. § 215 (1970), formerly Act of Feb. 28, 1871, ch. 100, § 51, 16 Stat. 455. We believe section 215 precludes enforcement of Florida’s pilotage statute with respect to “coastwise steam vessels” such as the “AUNT MAME.”

We are aware that the “AUNT MAME,” in violation of section 364, did not have a federally-licensed pilot on board. However, we do not interpret the proscription against levying a fee against “any steamer piloted as provided by title 52” as exempting from state pilotage laws only those vessels actually piloted in compliance with section 364. The last sentence of section 215, at least by implication, precludes state regulation of pilotage insofar as coastwise steam vessels are concerned. Only state pilotage regulations concerning “other than coastwise steam vessels” are not to be annulled or affected. Moreover, if a state could require a state-licensed pilot on coastwise steam vessels not piloted in accordance with federal law, the state in effect would be arrogating unto itself the role of enforcing the federal pilotage requirement. We are unwilling to ascribe to Congress such an intent. Congress has entrusted the Coast Guard with authority to license pilots and enforce section 364. See 46 U.S.C. § 224 (1970). Congress also has provided penalties for noncompliance with section 364. See id. We therefore conclude that state involvement in overseeing compliance with section 364 would conflict with the regulatory and enforcement scheme created by Congress.

The judgment of the district court will be reversed and the case remanded with directions to dismiss the complaint.

      . The Florida pilotage statute provides in pertinent part:
      All steamers or vessels entering any port or leaving the same shall be subject to pay to any licensed pilot performing duty on board, or to the pilot who shall first speak to such steamer or vessel, the following rates of pilotage: . . . . These minimum rates shall apply to all steamers or vessels whether owned wholly by citizens of this state or not, except that all steamers or vessel drawing less than six feet of water and having a coastwise license shall be exempt from paying pilotage unless they employ a pilot.
      12 Fla.Stat.Ann. § 310.1 l(Supp. 1974).
      The vessel involved in this appeal had a mean draft of approximately 18 feet 9 inches.

      . Steuart and the Pilot Association stipulated that the ESTER “S” was not served and is not a party to this action.

      . Neither party attaches significance to the word “seagoing” in the context of this case.

      . The Department of Commerce, through the Bureau of Marine Inspection and Navigation, administered the federal inspection and pilotage statutes at the time section 391a was enacted. Act of May 27, 1936, ch. 463, 49 Stat. 1380. The Bureau’s functions were transferred to the Coast Guard in 1946. 1946 Reorg.Plan No. 3, § 101, 60 Stat. 1097.

      . See note 3 supra.

      . The Pilot Association’s reliance on Askew v. American Waterways Operators, Inc. is misplaced. 411 U.S. 325, 93 S.Ct. 1590, 36 L.Ed.2d 280 (1973). That case concerned the federal Water Quality Improvement Act which imposes liability on shipowners and terminal facilities for cleanup costs incurred by the federal government as a result of oil spills. See 33 U.S.C. § 1161 et seq. (1970). Congress there provided for cooperation with the states and specifically reserved to the states the power to create causes of action to compensate parties other than the federal government. Thus the Supreme Court held that a state law which rendered shipowners and terminal facilities liable for damages incurred by the state or private persons did not conflict with federal law.

      . See note 4 supra.

        . The Coast Guard has promulgated regulations governing the examination and licensing of pilots. 46 C.F.R. § 10.05-42 to -43 (1974).


author: GEE, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. George B. PARR, Defendant-Appellant.
    No. 74-2378.
    United States Court of Appeals, Fifth Circuit.
    March 24, 1975.

      Douglas Tinker, Corpus Christi, Tex., Charles A. McNelis, Washington, D. C., Nago Alaniz, San Diego, Tex., for defendant-appellant.
    Anthony J. P. Farris, U. S. Atty., Edward B. McDonough, Jr., George A. Kelt, Jr., James R. Gough, Asst. U. S. Attys., John Clark, Special Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.
    Before DYER, MORGAN and GEE, Circuit Judges.
   GEE, Circuit Judge:

George Parr, a longtime political figure in the South Texas County of Duval, was found guilty of four counts of attempted tax evasion and four of filing returns, under penalty of perjury, which he did not believe correct in all material respects. Counts 1 and 2 for attempted evasion and perjury were founded on the same income items for the year 1966, counts 3 and 4 for 1967, etc. Finding the perjury counts lesser included offenses within the corresponding attempt counts in each case, the district court imposed no sentence upon any of them. Identical sentences of five years imprisonment and a $3,500 fine were imposed on each of the four attempt counts for the years 1966-69. The incarceration sentences for the years 1966 and 1967 were made concurrent; the other two were suspended, and Parr was placed on probation for five years consecutive to his imprisonment. The fines were made cumulative for a total of $14,000. He appeals each conviction. The government’s case rests on specific items of unreported income for each year in question, and we consider Parr’s complaints about each count in order of time.

Count One: The Year 1966.

The two items of additional income for this year were payments allegedly extorted from one Stautz, an architect-contractor working on public buildings in the Duval County area and an immunized witness. On two occasions during that year, Stautz testified, he responded to anonymous telephone messages that Parr or Papacito wanted “some money” in one instance and in another “wanted $40,000 that night” by delivering currency to Parr. Each amount,-first $20,000 and next $40,000, was delivered by him directly to Parr. Parr did not testify, and no explanation of Stautz’ assertions was attempted by the defense. Instead, Stautz was subjected to lengthy and severe cross-examination under which, among other things, he admitted to untruthful statements to the grand jury. The jury, nevertheless, believed him, perhaps partly because he was able to produce contemporaneous diary entries and expense vouchers which bolstered his account. This was a straight credibility choice, well within the province of the jury and reasonably supported by entirely sufficient evidence.

Appellant Parr, however, suggests that his conviction on this count may have been the result of cross-count prejudice, claiming that the other counts are of such a prejudicial nature' as to infect the entire trial. We have recognized the possibility of such prejudice, at the same time indicating that only in an unusual case would it be grounds for reversal, since in all multi-count indictments there is the possibility of an inference of guilt from one count to another. United States v. Meriwether, 486 F.2d 498, 504 (5th Cir. 1973). This is nothing like such a case. The Stautz episode stands alone, has connections with the year 1966 only, and concerns an entirely different sort of income item than the other years. As such, we think it most unlikely that Stautz’ testimony could have been taken by the jury to establish guilt under any other count, or the evidence under any other to indicate guilt under the first. United States v. Febre, 425 F.2d 107, 113 (2d Cir.), cert. denied, 400 U.S. 849, 91 S.Ct. 40, 27 L.Ed.2d 87 (1970).

Count Two: The Year 1967.

Two disparate items make up the asserted additional income for 1967 of seventy-three thousand-odd dollars. One is a forty thousand dollar payment from Harris Fender, a municipal bond dealer; the other represents the value of irrigation equipment purchased with public funds and installed on a ranch which belonged to the widow of Parr’s brother but was operated by Parr. Since this second item typifies others which we will meet in later years and requires rather thorough discussion, we commence with the Fender payment.

This was in the form of a check dated May 24, 1967, drawn by Fender in favor of Parr and carrying the notation “Legal” on its face. Parr reported this amount as representing long-term capital gain on the sale of a zero-basis asset. It was the United States’ contention that it represented ordinary income. For several years prior to 1967 Fender, through his wholly-owned corporation, James C. Tucker & Co., Inc., had been seeking to control all City of Benavides Refunding Bonds and certain of its earlier bond issues. In early January 1967, the Duval County Conservation and Reclamation District (DCCRD), to which Parr was on retainer for legal advice, purchased the entire outstanding indebtedness of that city. Fender’s accountant testified that the payment was part of Fender’s cost in acquiring these bonds, but refused to go so far as to characterize it as payment for the purchase of any bond. Parr’s accountant testified that he was never shown any instrument indicating Parr’s ownership of any City of Benavides bond but merely took Parr’s word for the nature of the item. Parr’s return indicated that he acquired the purported bonds in 1939, but his 1957 petition in bankruptcy listed no City of Benavides bonds. Bondholders lists for the Benavides refunding bonds did not reflect Parr as a bondholder, and all earlier bond series were barred and uncollectible unless exchanged for the refunding bonds by middle 1959 — long before the time of Parr’s supposed “sale” on May 27, 1967. Moreover, as noted, DCCRD had purchased all Benavides’ outstanding indebtedness months before this. On the above considerations, we think the government’s case on this item was well made. Proof beyond all possible doubt was not required, and viewing the above evidence in the light most favorable to the United States, Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), United States v. Fairchild, 505 F.2d 1378, 1381 — 82 (5th Cir. 1975), we agree the jury could have concluded no reasonable doubt remained. Parr paid a tax of several thousand dollars for the year 1967; it is obvious that the application of ordinary income treatment, rather than capital gain, to this large item would have produced a substantial increase in tax.

As noted earlier, the second item of income for 1967 is of a sort with similar items for the remaining years: an expenditure by a public body for equipment or services for the Atlee Parr Ranch. The facts of George Parr’s relationship to this land are, in essence, undisputed; the question is what they make out.

Parr’s brother Atlee died in 1967, leaving a wife and young son who lived on his ranch about six miles south of Benavides. At the time of his death, the ranch was brush-choked and carrying less than 250 head of cattle, though it comprised 14,000 acres. Atlee Parr willed the ranch to his widow, Hilda, who had never participated in operating the ranch and knew little about it. She agreed with Parr for him to operate the ranch and market her cattle for her. In return for these services, he was to have the right to run two cows on the place for every one of hers. Mrs. Parr testified to no real control by her over Parr’s operations at the ranch except directing him to sell such of her cattle as could be sold from time to time, apparently on the basis of her financial needs, since she testified, “usually it was before income tax” that her instructions to sell were given. She made Parr free of all ranch supplies and equipment on hand, but as for any purchased by him thereafter for use on the place, they would be his. Mrs. Parr also testified that she had no hopes of adding to her herd and that her husband died owing a $50,000 note to a local bank which she would be unable to pay unless she sold the ranch. There was testimony to extensive brush-clearing, fertilizing and irrigation activity at the ranch after Atlee Parr’s death; and that within three years the ranch had gone from a “heavily-timbered” condition to looking very nice, with at least tenfold increase in cattle carried on it.

For the year 1967, the ranch improvement sought to be charged to Parr as additional income was a $33,000-odd well and sprinkler system, installed there at Parr’s direction and paid for by DCCRD.

As the above recitation indicates, the jury can hardly have avoided the conclusion that Parr, commencing with his brother Atlee’s death, began a private ranching operation on Hilda Parr’s land which was conducted in large part at public expense. On long-settled principles, such as that the term “gross income” as used in the tax statutes is to be broadly interpreted and measured by the full extent of Congress’ taxing powers, that items of such income need not be in form of currency so long as they can be valued in its terms, and that unlawful as well as lawful gains are taxable as income, it is plain that the receipt of benefits such as these may be the receipt of gross income. Capital improvements made by a corporation on a. shareholder’s property have been held, for example, to constitute taxable income to the shareholder in their full amount.

Granting all the foregoing, however, it remains the fact that actual title to the Atlee Parr Ranch has at no time been in Parr, nor is it ever likely to be.

Thus, Parr’s main argument before us on this point seems to be that since formal title in him was not shown, the full amount of these improvements cannot be laid at his door and the United States has failed to establish with precision the amount of additional income received by him in 1967, thus making a showing of a substantial tax deficiency impossible. Rental value is all that could be charged as income received by him, he says, and no evidence of rental value of the well and sprinkler system for the year 1967 was introduced. But the error, if any, in this year is irrelevant since the government had proved a substantial tax owing due to the $40,000 Fender transaction. The government need not prove the exact income alleged in the indictment nor evasion of the entire .tax charged, so long as it is shown that a substantial portion of tax was evaded. However, we need not rely on these settled principles, and indeed will not, given the similarity between this transaction and others in subsequent years which bear more substantially on the validity of conviction on the count. It is familiar law that the revenue scheme “. . . is not so much concerned with the refinements of title as it is with actual command over the property taxed — the actual benefit for which the tax is paid.” The jury was well warranted in concluding that Parr demonstrated a de facto ownership — plenary control, exercised for his own benefit — over the DCCRD funds expended in 1967 on the Atlee Parr Ranch, as well as over the ranch itself, with Hilda Parr figuring on the premises as little more than a resident client or pensioner. Full value of the equipment being a readily realizable economic gain attributable to Parr, the count will stand. Finally, even if Parr had received only rental value as income, a debatable proposition on the evidence, substantial unreported income and tax due would still have been shown. It would not have affected his guilt or innocence. See White v. United States, 216 F.2d 1, 5 (5th Cir. 1954) and United States v. Smith, 206 F.2d 905, 910 (3d Cir. 1953).

Count Three: The Year 1968.

The claimed items of additional income for this calendar year total over $68,000 and consist of helicopter services to the Atlee Parr Ranch (counting and driving cattle, chemical distribution, varmint control), 100 tons of fertilizer delivered there, and additional irrigation equipment. All were ordered by Parr and, by his procurement, paid for by DCCRD. Whether deemed additions to the income of Parr or of Parr Cattle Company, these benefits would have produced substantial additional tax due by Parr in 1968; and our observations regarding 1967’s similar items apply here.

Count Four: The Year 1969.

The additions to income charged for 1969 consist of additional and similar equipment and services to the Atlee Parr Ranch, paid for by DCCRD and totalling well over $100,000, plus a salary advance and a “check swap” by which Parr received, in his capacity as legal advisor to DCCRD, $15,000 in additional funds; and finally the purchase by DCCRD of the bank’s $50,000 note which Atlee Parr died owing and which Hilda Parr testified she’d have had to sell the ranch to pay.

As to the benefits furnished by DCCRD to the Atlee Parr Ranch, Parr’s situation in 1969 differs in no material respect from that obtaining in 1967 and 1968. Our prior observations on the earlier items similar to these apply with full force here. The other items present differing and in some instances closer questions. However, even should we assume them entirely wanting in evidentiary support, the ranch benefits alone constitute proof of a substantial portion of the claimed deficiency, and one sufficient to support the jury verdict of guilty on Count Seven. These additional items are not of an especially prejudicial nature by comparison with the others charged, nor, in view of the sentence imposed under Count Three, do we think it likely that the court’s judgment would have been affected even by the omission of these additional charges.

Parr advances several additional minor points — an assertion of plain error in the jury charge, a supposed absence of evidence of willfulness, etc. — which we find wanting in sufficient merit to require discussion. Recognizing the insurmountable difficulties attending a direct attack on his conviction under Count One, he also urges that we eschew the concurrent sentence doctrine, find prejudice under other counts affecting the Count One verdict, and require a retrial of Count One. We have indeed placed no reliance upon that doctrine, but we likewise find no such prejudice. Finally, he advances a claim of prosecutorial misconduct in which we find no merit.

Affirmed.

      . 26 U.S.C. § 7201.

      . 26 U.S.C. § 7206(1).

      . “Little father,” in Tex-Mex.

      . Comm’r v. Glenshaw Glass Co., 348 U.S. 426, 75 S.Ct. 473, 99 L.Ed. 483 (1955).

      . James v. United States, 366 U.S. 213, 81 S.Ct. 1052, 6 L.Ed.2d 246 (1961).

      . See, e. g., Comm’r v. John Smith, 324 U.S. 177, 65 S.Ct. 591, 89 L.Ed. 830 (1945), 2 Mertens, Federal Income Taxation Ti 11.03 (1974).

      . James, supra, note 5; Rutkin v. United States, 343 U.S. 130, 72 S.Ct. 571, 96 L.Ed. 833 (1952).

      . See, e. g., Elmer J. Benes, 42 T.C. 358 (1964), aff’d, 355 F.2d 929 (6th Cir. 1966); Estate of Clarke, 54 T.C. 1149 (1970); and Western Supply and Furnace Co., 18 CCH Tax Ct.Mem. 288, 301-02 (1959).

      . Hilda Parr testified that at her death the ranch would pass to her young son.

      . United States v. Cole, 463 F.2d 163, 167 (2d Cir.), cert. denied, 409 U.S. 942, 93 S.Ct. 238, 34 L.Ed.2d 193 (1972); United States v. Burdick, 221 F.2d 932 (3d Cir.), cert. denied, 350 U.S. 831, 76 S.Ct. 65, 100 L.Ed. 742 (1955); White v. United States, 216 F.2d 1, 5 (5th Cir. 1954); Gendelman v. United States, 191 F.2d 993, 996 (9th Cir. 1951), cert. denied, 342 U.S. 909, 72 S.Ct. 302, 96 L.Ed. 680 (1952); Schuermann v. United States, 174 F.2d 397, 399 (8th Cir.), cert. denied, 338 U.S. 831, 70 S.Ct. 69, 94 L.Ed. 541 (1949).

      . United States v. Schenck, 126 F.2d 702, 704 (2d Cir. 1942); Tinkoff v. United States, 86 F.2d 868, 878-79 (7th Cir. 1936), cert. denied, 301 U.S. 689, 57 S.Ct. 795, 81 L.Ed. 1346 (1937). See also Reynolds v. United States, 225 F.2d 123, 127 (5th Cir.), cert. denied, 350 U.S. 914, 76 S.Ct. 197, 100 L.Ed. 801 (1955), citing Tinkoff, supra.

      . That being the relevant element of § 7201. Sansone v. United States, 380 U.S. 343, 351, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965); Lawn v. United States, 355 U.S. 339, 361, 78 S.Ct. 311, 2 L.Ed.2d 321 (1958). And we have noted that a showing of some omitted items of income in the year in question suffices for this element of the crime. Kowalsky v. United States, 290 F.2d 161 (5th Cir.), cert. denied, 368 U.S. 875, 82 S.Ct. 120, 7 L.Ed.2d 76 (1961).

      . E. g., Corliss v. Bowers, 281 U.S. 376, 378, 50 S.Ct. 336, 74 L.Ed. 916 (1930).

      . Rutkin, supra, note 7.

      . Even disregarding the $40,000 Fender transaction, reclassified as ordinary income, and giving due allowance to Parr’s argument that if he did derive benefits he did so only as a member of Parr Cattle Company, a partnership with his nephew, Archer. The partnership returns for 1967 do not indicate positively whether they include the Atlee Parr Ranch operation or not, but to a degree contra-indicate, since they claim a substantial deduction —$3,000—for rent, presumably land rent.

      . United States v. Cole, supra, note 10. Cf. Marks v. United States, 391 F.2d 210, 211 (9th Cir.), cert. denied, 393 U.S. 839, 89 S.Ct. 116, 21 L.Ed.2d 109 (1968). See cases cited in notes 10 and 11.

      . The applicability of which is doubtful as to these sentences, anyhow.


author: PER CURIAM.

text:
    John T. DUNLOP, Secretary of Labor, U. S. Department of Labor, Plaintiff-Appellant, v. LEDET’S FOODLINER OF LAROSE, INC., and Sterling Ledet, Defendants-Appellees.
    No. 74-2076.
    United States Court of Appeals, Fifth Circuit.
    March 24, 1975.

      William J. Kilberg, Sol. of Labor, Carin Ann Clauss, Associate Sol., Jacob I. Karro, Marcia A. Lurensky and Darryl J. Anderson, Dept, of Labor, Washington, D. C., for plaintiff-appellant.
    Sterling Ledet, pro se.
    Before GOLDBERG and RONEY, Circuit Judges, and LYNNE, District Judge.
   PER CURIAM.

The instant appeal is taken from a judgment entered in a civil contempt proceeding for violation of an injunction issued under the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. § 201 et seq. Therein it was adjudicated that appellee was in civil contempt, that he should make restitution in the amount of $6,570.91, representing wages .unlawfully withheld since the service of such injunction, and that he should pay court costs in the sum of $269.08.

In his petition in the court below, appellant joined his claim for compensation “for the deprivation of the relief granted to him by the” injunction with a claim for reimbursement “for the costs and expense of instituting and maintaining [the contempt] proceeding.” Thus, two different claims were presented by the petition. See 10 Wright and Miller, Federal Practices and Procedure § 2657 (1973). Appellant assigns as error the denial of his claim for additional costs and expenses. The judgment is silent as to this claim. We dismiss the appeal for lack of a final order.

Finality is a condition of federal appellate review. It is departed from cautiously; otherwise we would invite piecemeal review. See Catlin v. United States, 324 U.S. 229, 65 S.Ct. 631, 89 L.Ed. 911 (1945); 28 U.S.C. §§ 1291, 1292; F.R.Civ.P. 54.

A judgment or order is final for purposes of appealability when it ends the litigation on the merits and comprehends only execution of the court’s decree. Johnson v. Combs, 471 F.2d 84 (5th Cir. 1972), cert. den., 413 U.S. 922, 93 S.Ct. 3063, 37 L.Ed.2d 1044, reh. den., 414 U.S. 882, 94 S.Ct. 37, 38 L.Ed.2d 129 (1973). Since by its judgment the court below did not adjudicate the Secretary’s claim to recover his enforcement expenses, such judgment lacks the requisite finality to be appealable within the meaning of 28 U.S.C. § 1291. Austracan (U.S.A.) Inc. v. M/V Lemoncore, 500 F.2d 237 (5th Cir. 1974).

The Secretary has argued that it is clear from the record as a whole that the trial court intended that its order dispose of both claims. This argument, of course, lacks merit since this Court will not search a record to clarify an unambiguous judgment. Moreover, we note that the Secretary failed to request the court below to amend its order by motion made under F.R.Civ.P. 59(e), to reflect by its terms a judgment on both claims. Finally, our own examination of the record reveals that, insofar as the record before us shows, the trial court has not yet expressed itself upon the question of the additional expenses claimed by the Secretary.

Thus, appellant’s claim for expenses remains viable. He may move the court below for the entry of judgment, pursuant to F.R.Civ.P. 58, upon his claim therefor. An appealable order will then be generated. State National Bank of El Paso v. United States, 488 F.2d 890 (5th Cir. 1974).

Until such time as we are presented with a record properly raising the issue of the collectibility of expenses such as those claimed here, we are not prepared to pass upon the question. Nor are we in a position, at this point, to declare that such expenses must be allowed in every contempt proceeding instituted by the Secretary. Cf. Tobin v. LaDuke, 190 F.2d 677 (9th Cir. 1951); McComb v. Norris, 177 F.2d 357 (4th Cir. 1949).

Dismissed.

      . There is no attack by either party upon the determination by the court below that appellee had violated the injunction. Nor has either party appealed the amounts adjudged to be owing for unpaid compensation and costs.

      . Because of the disposition we make of this appeal, the Secretary’s costs and expenses connected herewith are, in any event, not collectible against appellee.