author: GEE, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Michael William CLEGG, Defendant-Appellant.
    No. 74-2557.
    United States Court of Appeals, Fifth Circuit.
    March 5, 1975.

      Donald Gunn, Houston, Tex., for defendant-appellant.
    Anthony J. P. Farris, U. S. Atty., Joe Doucette, Mary L. Sinderson, Asst. U. S. Attys., Houston, Tex., for plaintiff-appellee.
    Before RIVES, GODBOLD and GEE, Circuit Judges.
   GEE, Circuit Judge:

Michael W. Clegg was convicted of thirteen counts of wirefraud violations of 18 U.S.C. § 1343. He believes that his convictions must be reversed for a number of reasons, some of which are weighty but several of which are totally without merit. The latter will be touched upon but briefly. Primary among the reasons which warrant discussion is his contention that certain evidence introduced against him at trial was obtained and used both in violation of his Fourth Amendment right to be free from unreasonable searches and seizures and in violation of 47 U.S.C. § 605. Clegg argues that since the evidence was illegally obtained, it should have been suppressed and that the trial court’s failure to exclude it was reversible error.

In May, 1972, Billy D. Hubbard, a Southwestern Bell security supervisor, received information from a Victor Brookshire that appellant Clegg might be using an electronic device called a “blue box” to circumvent the toll call billing system of the phone company. After a meeting with Brookshire at which Special Agent R. W. Suter of the FBI was present, Hubbard attached a TTS 176 device to Clegg’s business and residence telephone lines. This device, which is capable of detecting blue box calls, monitors the line to which it is attached and produces a paper tape record of the time and date of all outgoing telephone calls, local and long distance, complete and incomplete. On the day following its installation, the TTS 176 detected illegal long distance calls emanating from Clegg’s business phone. Later the machine noticed that similar calls were being placed from his residence telephone. In all, over two hundred blue box calls were discovered by the TTS 176 during the period of approximately four months that it was used to keep tabs on Clegg’s calls.

Once Hubbard had established that blue box calls were being placed from Clegg’s telephone, he took steps to verify that the calls were being completed and to identify the illegal caller. This he did by attaching a recorder, as well as the TTS 176, to Clegg’s lines and recording audibly the ringing and salutations only of fifteen to twenty blue box calls. From the salutations alone the caller was identified as appellant.

Hubbard testified that during the period that the TTS 176 was monitoring Clegg’s calls there was an ongoing nationwide investigation being conducted by both the FBI and Bell security investigators. The purpose of this investigation was to identify the source of the blue boxes. For it to succeed, coordination was required, and it was necessary that the arrest of all blue box users be as nearly simultaneous as possible. Thus, Hubbard kept Agent Suter, who was conducting an investigation on his own, informed of the status of the telephone company’s investigation and of the fact that blue box calls were being detected. He denied that he informed Suter of any of his procedures or informed him that he was making voice recordings of the salutations. Suter provided Hubbard no advice or guidance.

Special Agent Suter testified that as a result of prior anonymous tips and the information provided by Brookshire he undertook his own investigation of Clegg. His investigation was conducted in conjunction with the FBI office in Minneapolis. At a time coordinated with the Minneapolis office, search warrants for Clegg’s home and office, as well as a warrant for his arrest, were obtained. When the warrants were executed on September 11, 1972, Clegg was discovered in the act of using a blue box. He was arrested, and pursuant to the search warrant the blue box and several pamphlets explaining its use were seized.

Clegg’s argument that the paper tapes printed by the TTS 176 and the voice recordings were obtained in violation of his Fourth Amendment right to be free from unreasonable searches and seizures is bottomed on either the assumption that Investigator Hubbard was for all purposes a de facto agent of the FBI, or that Agent Suter participated in every aspect of Bell’s investigation. If either were true, there would be governmental action involved and a serious possibility that the warrantless monitoring of Clegg’s telephones with the TTS 176 and the voice recorder would have violated his Fourth Amendment rights. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967). However, Hubbard and the FBI were conducting separate investigations. Although Hubbard kept Agent Suter informed of the status and to some degree the results of his investigation, there is no indication in the record that he acted at the behest or suggestion, with the aid, advice or encouragement, or under the direction or influence of the FBI. When we consider all the circumstances of the case, as we are directed to do by Coolidge v. New Hampshire, 403 U.S. 443, 487, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), we must conclude that Hubbard was not an instrument or agent of the FBI. This is not a case, in which the FBI, by secretly (or even unintentionally but effectively) deputizing the telephone company and its investigator, attempted to avoid the restrictions against wiretapping placed upon the government by the Constitution and by statute. Rather, it is the case of a private, statutorily authorized investigation by the employee of a corporation intent upon protecting its property rights.

The fact that United States law enforcement authorities were informed that the investigation was underway and that it had uncovered evidence of criminal activity does not automatically change its private nature. Nor does the fact that Suter knew of the existence and nature of Hubbard’s investigation necessarily make him a participant in all of it. It is only when the govern-" ment has preknowledge of and yet acquiesces in a private party’s conducting a search and seizure which the government itself, under the circumstances, could not have undertaken . that the problem discussed in United States v. Mekjian, 505 F.2d 1320 (5th Cir. 1975) arises. Preknowledge and acquiescence make a search by a private party a search by the government. Fourth Amendment standards must be complied with. Any evidence which, for Fourth Amendment reasons, would have been excluded had it been gathered by the government pro se would, of course, have to be excluded if gathered by the only nominally private party. It would be excluded with the aim of deterring the government from further attempts to utilize knowingly the services of a private party to do for it that which it is forbidden to do for itself. However, any reason for exclusion and, as well, for attributing the search to the government disappears when the activity of the private party is nothing more than activity which the government itself could legally have pursued. In such a case the government has not used a private party to circumvent anything except, perhaps, work.

In the case under consideration it is important to note that Agent Suter of the FBI had no foreknowledge that Investigator Hubbard intended to or would aurally acquire any of the content of Clegg’s conversations. It is undisputed that all that the FBI knew was that Hubbard intended to and subsequently did successfully monitor Clegg’s telephone lines with the TTS 176. As mentioned, this device, which is similar in function to a pen register, notes only the existence (including the time of a call and the number dialed) of telephonic communications. It discloses nothing of the content. The Fourth Amendment, however, protects only the content of a telephone conversation and not the fact that a call was placed or that a particular number was dialed. United States v. Baxter, 492 F.2d 150, 167 (9th Cir. 1973). This is so because telephone subscribers have no reasonable expectation that records of their calls will not be made. It is, in fact, well known that such records are kept. United States v. Covello, 410 F.2d 536, 542 (2d Cir. 1969). For this reason, the acquisition by the government by means of a pen register or a TTS 176 of nothing more than information concerning the dates and times of calls placed from a particular telephone and the numbers dialed does not offend the Fourth Amendment. Korman v. United States, 486 F.2d 926 (7th Cir. 1973). Thus, when Suter was informed only that Bell intended to use and later did use the TTS 176, 'he was told nothing which did or should have put him on notice that Hubbard was engaged in activities which, if undertaken by the government, would have violated the Fourth Amendment. Specifically, Suter was not put on notice that Hubbard planned to intercept the salutations of some of Clegg’s conversations. This being the case, there is no reason-to exclude any of the evidence gathered by Hubbard on the ground that it was obtained by means of illicit government conduct. The information concerning the number of illegal calls placed by Clegg, as well as the times and dates of these calls and the telephone numbers dialed, is admissible because, even if Hubbard’s use of the TTS 176 is attributed to the government so as to make its employment “government action,” there is no bar to governmental action of this type. Exclusion of the salutations is not mandated by United States v. Mekjian, supra, because these were acquired by private actions of which the government had no foreknowledge.

Since forbidden governmental action was absent, Fourth Amendment considerations are inapplicable to the question of the admissibility of either the TTS 176 paper tapes or the voice recordings. Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 (1921). There remains, however, a question as to whether, because of telephone company action, either 47 U.S.C. § 605 or 18 U.S.C. § 2515 mandates their exclusion.

Clegg contends that the evidence of his use of the blue box was obtained in violation of 47 U.S.C. § 605 and, thus, in accordance with the line of eases interpreting that statute and Nardone v. United States, 302 U.S. 379, 58 S.Ct. 275, 82 L.Ed. 314 (1937), was inadmissible at his trial. He appears to recognize that, with respect to communication by wire, the first sentence of § 605 exempts from the prohibitions of that section those intercepts and disclosures authorized by 18 U.S.C. § 2511(2)(a)(i) and (ii) but takes the position that the exemptions are inapplicable here because the signals monitored by Hubbard were radio communications. This is so, he says, because the routes over which his illegal long distance calls traveled included microwave links. Since microwave transmission is a form of radio communication, he argues that his calls were, at least in part, radio rather than wire communications. Although ingenious, the argument is merit-less. It is quite clear that the signals intercepted by the TTS 176 and the voice recorder were béing transmitted over wire within the meaning of both 47 U.S.C. § 605 and 18 U.S.C. § 2511. Thus, the question of whether or not the evidence acquired by Hubbard, an employee of a communication common carrier, was permissibly intercepted and disclosed to the FBI and the jury is controlled by 18 U.S.C. § 2511(2Xa)(i), not by 47 U.S.C. § 605.

18 U.S.C. § 2511(2)(a)(i) provides that: (2)(a)(i) It shall not be unlawful under this chapter for an operator of a switchboard, or an officer, employee, or agent of any communication common carrier, whose facilities are used in the transmission of a wire communication, to intercept, disclose, or use that communication in the normal course of his employment while engaged in any activity which is a necessary incident to the rendition of his service or to the protection of the rights or property of the carrier of such communication: Provided, That said communication common carriers shall not utilize service observing or random monitoring except for mechanical or service quality control checks.

This subsection, which is an amended version of its 1968 predecessor,

[Pjrovides that it shall not be unlawful for an operator of a switchboard or employees of a common carrier to intercept, disclose, or use wire communications in the normal course of their employment while engaged in any activity which is a necessary incident to the rendition of his service or the protection of the rights of property of the carrier. It is intended to reflect existing law. (United States v. Beckley, 259 F.Supp. 567 (D.C.Ga.1965). 1968 U.S.Code Cong. & Admin.News, p. 2182. (Emphasis added.)

The reference in legislative history to Beckley is significant. That case, like ours, involved the question of the admissibility of certain evidence obtained by a phone company wiretap. It holds that the then current version of 47 U.S.C. § 605 (old § 605) did not prohibit the telephone company from monitoring its own lines to protect the integrity of its regular billing. It also holds that old § 605 afforded those telephonic communications which are illegal no protection from disclosure by the monitoring company. The case cites as authority both Casey v. United States, 191 F.2d 1 (9th Cir. 1951), reversed on other grounds, 343 U.S. 808, 72 S.Ct. 999, 96 L.Ed. 1317 (1952), and Sugden v. United States, 226 F.2d 281 (9th Cir. 1955), aff’d, 351 U.S. 916, 76 S.Ct. 709, 100 L.Ed. 1449 (1956). This Court, itself, like the Beckley court, has recognized that the Supreme Court’s terse per curiam affirmance of Sugden indicates that old § 605 was never intended to protect the existence or content of messages illegally transmitted over communication facilities. Hanna v. United States, 404 F.2d 405 (5th Cir. 1968), cert. denied, 394 U.S. 1015, 89 S.Ct. 1625, 23 L.Ed.2d 42 (1969).

It is unnecessary for us at this juncture to decide whether 18 U.S.C. § 2511(2)(a) continues to allow a telephone company to. divulge the entire content of illegally placed telephone calls. However, we feel that it is quite clear and we do hold that § 2511(2)(a), at a minimum, authorizes a telephone company which has reasonable grounds to suspect that its billing procedures are being bypassed to monitor any phone from which it believes that illegal calls are being placed. If, by the use of a device similar to a TTS 176, it discovers the existence of illegal calls, § 2511(2)(a), again at a minimum, authorizes it to record, audibly, the salutations. Additionally, § 2511(2)(a) allows a telephone company to divulge, at least, the existence of the illegal calls and the fact that they were completed (the salutations) to law enforcement authorities and ultimately to the courts, since such disclosures are a necessary incident to the protection of the company’s property rights. As authorized disclosures, such evidence is admissible in court. 18 U.S.C. § 2517(3).

Our holding in this respect is nothing more than a recognition that Congress did not intend that the enactment of Title III of the Omnibus Crime Control Act of 1968 would eliminate the court-created exception to old § 605 which allowed telephone companies to conduct that limited amount of monitoring of their subscribers’ telephones and to disclose those results of such monitoring reasonably necessary to protect their property rights. To achieve this end, Congress amended 47 U.S.C. § 605 in 1968 and included § 2511(2)(a) in the Omnibus Crime Control and Safe Streets Act with the obvious purpose, as the legislative history indicates, of statutorily enacting this already judicially" recognized exception to the language of old § 605. Our faith in the correctness of our holding is reinforced by the fact that similar results and conclusions have been reached by the district courts which have been called upon to interpret 18 U.S.C. § 2511(2)(a). United States v. Freeman, 373 F.Supp. 50 (S.D.Ind-.1974); United States v. Shah, 371 F.Supp. 1170 (W.D. Pa.1974); United States v. DeLeeuw, 368 F.Supp. 426 (E.D.Wis.1974).

Clegg questions whether the fruits of Bell’s investigation of him would have been admissible under the case law which created the protection-of-the-telephone-company-property exception to old § 605. Relying on no case in particular but probably influenced by some of the court’s language in Bubis v. United States, 384 F.2d 643 (9th Cir. 1967) and Brandon v. United States, 382 F.2d 607 (10th Cir. 1967), he argues that Hubbard’s whole investigation was tainted because, prior to installation of the TTS 176, the investigator did not have reasonable cause to suspect that blue box calls were in fact being placed. We accept the proposition that a telephone company must have some reason to suspect that its property rights are being abused by a particular subscriber before it begins to monitor that subscriber’s phone, but differ with Clegg’s interpretation of what is necessary to create reasonable cause. Clegg would have us hold that the telephone company must demonstrate the same degree of Fourth Amendment probable cause that a law enforcement agency would have to show in order to obtain a search warrant before it may act — in the only way reasonably available to it, by monitoring — to protect its property rights. We decline the invitation to import the Fourth Amendment into 28 U.S.C. § 2511(a), a section of the Code which authorizes limited monitoring by private persons — real and corporate. Without attempting to establish comprehensive standards for determining when the phone company has reasonable cause to suspect wire-fraud, we hold that under the facts of this case the telephone company acted reasonably and within the authority granted it by 18 U.S.C. § 2511(2)(a)(i) when it commenced TTS 176 operations in reliance upon the information provided by Clegg’s former employee Brook-shire. This is true even though Bell did not run a check into the background of Mr. Brookshire or otherwise attempt to establish his reliability.

Clegg next asserts that the telephone company exceeded the permissible bounds of both the judicially created exception to old § 605 and those of § 2511(2)(a) by continuing to monitor his telephone long after it had obtained enough evidence to have him indicted for wirefraud. He relies upon the Ninth Circuit’s holding in Bubis, supra, as support for this contention. The Bubis court held that

the monitoring and tape recording for ... [a three month period], after ample evidence had been secured of the illegal use by appellant of the company’s facilities, was unreasonable and unnecessary. Bubis, supra, 384 F.2d at 648.

Bubis, however, is not in point; for it concerned lengthy and continuous monitoring of the contents of the calls. It is our conclusion that, taking all circumstances into account, Bell’s four-month investigation was reasonably necessary for the protection of its property rights. We stress in so holding that Hubbard’s investigation was so limited that there was minimal intercept of the audible content of Clegg’s telephone calls.

Admittedly, it is likely that Bell could have procured the arrest, indictment and probably the conviction of Clegg on the basis of evidence which it collected during the first few days of its investigation. The conviction of Clegg for wire-fraud would, of course, have had the effect of eliminating him as an abuser of the long distance lines. However, the arrest of Clegg in May would also have had the effect of possibly alerting the manufacturer and other users of the blue box to the nationwide investigations of both the telephone company and the FBI. It is not reasonable to interpret § 2511(2)(a) as demanding that Southwestern Bell should choose to protect its property right from abuse by one man and thereby destroy the possibility that it might prevent similar abuse by scores of others. Nor would it be reasonable to read it as demanding that Bell stop monitoring an abuser as soon as it has enough evidence to procure his arrest if it decides to wait until later to report him to law enforcement authorities. On the contrary, telephone companies have a duty to note all long distance calls and to attempt to collect the tolls and taxes prescribed in their tariffs. 47 U.S.C. §§ 202, 203(c), 220; 26 U.S.C. § 4251. See Hanna, supra, 404 F.2d at 406-07. For the full four-month period Hubbard’s monitoring of Clegg’s phone was activity which was “a necessary incident . to the protection of the rights or property” of a communications common carrier because telephone companies have the right (in fact the duty) to bill all users of the long distance lines for all calls completed. Therefore, in accordance with the plain language of § 2511(2)(a)'(i), Bell was free to disclose the results of its entire four-month investigation.

Also included among Clegg’s reasons why his conviction should be reversed are (1) that the introduction of tapes of his voice at his trial violated his Fifth Amendment right to stand mute before the jury, (2) that, in spite of the fact that he was prosecuted in a federal court by the federal government, his Fourteenth Amendment rights were violated because Texas courts would have excluded the TTS 176 paper tapes and the voice tapes, (3) that the search and arrest warrants obtained by Agent Suter were issued without probable cause, (4) that the search warrant did not describe his blue box with sufficient particularity, and (5) that there was no proof that Southwestern Bell’s billing procedures were bypassed. All these points of error are meritless and are rejected.

Affirmed.

      . 47 U.S.C. § 605. Unauthorized publication or use of communications
      Except as authorized by chapter 119, Title 18, no person receiving, assisting in receiving, transmitting, or assisting in transmitting, any interstate or foreign communication by wire or radio shall divulge or publish the existence, contents, substance, purport, effect, or meaning thereof, except through authorized channels of transmission or reception, (1) to any person other than the addressee, his agent, or attorney, (2) to a person employed or authorized to forward such communication to its destination, (3) to proper accounting or distributing officers of the various communicating centers over which the communication may be passed, (4) to the master of a ship under whom he is serving, (5) in response to a subpoena issued by a court of competent jurisdiction, or (6) on demand of other lawful authority. No person not being authorized by the sender shall intercept any radio communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person. No person not being entitled thereto shall receive or assist in receiving any interstate or foreign communication by radio and use such communication (or any information therein contained) for his own benefit or for the benefit of another not entitled thereto. No person having received any intercepted radio communication or having become acquainted with the contents, substance, purport, effect, or meaning of such communication (or any part thereof) knowing that such communication was intercepted, shall divulge or publish the existence, contents, substance, purport, effect, or meaning of such communication (or any information therein contained) for his own benefit or for the benefit of another not entitled thereto. This section shall not apply to the receiving, divulging, publishing, or utilizing the contents of any radio communication which is broadcast or transmitted’ by amateurs or others for the use of the general public, or which relates to ships in distress.

      . Verification that the calls were completed was necessary in order to make a case against Clegg. This is so because a telephone company does not bill for dialing. It only charges for completed calls. Thus, in order to prove that it has been fraudulently deprived of monies due it, a telephone company must necessarily be able to show both that its billing procedures were bypassed and that completed calls were made. The identity of the person placing the illegal call is, of course, also essential.

      . Apparently both Bell’s and the FBI’s investigations were being coordinated from their respective Minneapolis offices.

      . In wiretap situations the strictures placed upon the government by Title III of the Omnibus Crime Control and Safe Streets Act of 1968 would also have to be complied with.

      . For a definition and discussion of the capabilities of a pen register, see In re Joyce, 506 F.2d 373, 377, fn. 4 (5th Cir. 1975).

      . Since a pen register or, we conclude, a TTS 176, again, used alone, does not intercept communication within the meaning of 18 U.S.C. § 2510(4) governmental use of such a device is not proscribed by Title III of the Omnibus Crime Control and Safe Streets Act of 1968. United States v. Falcone, 505 F.2d 478 (3rd Cir. 1974); United States v. Finn, 502 F.2d 938 (7th Cir. 1974); United States v. Brick, 502 F.2d 219 (8th Cir. 1974); Korman, supra; United States v. Lanza, 341 F.Supp. 405 (M.D.Fla.1972); United States v. Vega, 52 F.R.D. 503 (E.D.N.Y.1971); United States v. Escandar, 319 F.Supp. 295 (S.D.Fla.1970); see also United States v. Giordaho, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341, 374 (1974) (Justice Powell concurring in part and dissenting in part). The legislative history of the Act clearly indicates that Congress did not intend for pen register or other similar monitoring to be controlled by the provisions of Title III. See 1968 U.S.Code Cong. & Admin.News, p. 2178.

      . Or Title III of the Omnibus Crime Control and Safe Streets Act of 1968. See footnote 6 above.

      . The salutations were, of course, part of the aural content of Clegg’s conversations. Had government action been involved in recording them, there is no doubt that both the Fourth Amendment and Title III would have been violated.

      . 18 U.S.C. § 2510 defines wire communication:
      “As used in this chapter—
      (1) ‘wire communication’ means any communication made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception furnished or operated by any person engaged as a common carrier in providing or operating such facilities for the transmission of interstate or foreign communications; . .”

      . 47 U.S.C. § 605 was amended in 1968. The text of the amended or “new” version is set out in Footnote 1, infra. The pre-1968 or “old” version reads as follows:
      § 605. Unauthorized publication or use of communications
      No person receiving or assisting in receiving, or transmitting, or assisting in transmitting, any interstate or foreign communication by wire or radio shall divulge or publish the existence, contents, substance, purport, effect, or meaning thereof, except through authorized channels of transmission or reception, to any person other than the addressee, his agent, or attorney, or to a person employed or authorized to forward such communication to its destination, or to proper accounting or distributing officers of the various communicating centers over which the communication may be passed, or to the master of a ship under whom he is serving, or in response to a subpena issued by a court of competent jurisdiction, or on demand of other lawful authority; and no person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person; and no person not being entitled thereto shall receive or assist in receiving any interstate or foreign communication by wire or radio and use the same or any information therein contained for his own benefit or for the benefit of another not entitled thereto; and no person having received such intercepted communication or having become acquainted with the contents, substance, purport, effect, or meaning of the same or any part thereof, knowing that such information was so obtained, shall divulge or publish the existence, contents, substance, purport, effect, or meaning of the same or any part thereof, or use the same or any information therein contained for his own benefit or for the benefit of another not entitled thereto: Provided, That this section shail not apply to the receiving, divulging, publishing, or utilizing the contents of any radio communication broadcast, or transmitted by amateurs or others for the use of the general public, or relating to ships in distress.
      The legislative history of the 1968 amendment makes clear the congressional purpose for the modification of § 605:
      This section amends section 605 of the Communications Act of 1934 (48 Stat. 1103, 47 U.S.C. sec. 605 (1958)). This section is not intended merely to be a reenactment of section 605. The new provision is intended as a substitute. The regulation of the interception of wire or oral communications in the future is to be governed by proposed new chapter 119 of title 18, United States Code. 1968 U.S.Code Cong. & Admin. News, p. 2196.

      . Recording of the salutations is necessary to protect the property rights of a telephone company. Completion of the call must be shown both in a prosecution for wirefraud and to entitle the company to charge the caller for the use of its long distance service. See footnote 2. Infra.

      . Clegg argues mightily in his brief that use by the telephone company of the TTS 176, a device which he characterizes as superior to a pen register, was unreasonable and unnecessary. He points out that this device makes a record not only of blue box calls but also of legitimate long distance calls and local calls. It notes all calls, whether they are complete or incomplete. We are unwilling to hold that in such circumstances as these, where illegitimate calls are being made, it was incumbent on the company to install either no device or one so sophisticated — if such there be — 'as to select out and pass over Clegg’s legitimate uses of the telephone. What the company did here was not unreasonable. And, as mentioned above, we see no viable distinction between the TTS 176 and the pen register.

      . -That Congress intended this restriction is obvious from the language of the proviso of 18 U.S.C. § 2511(2)(a)(i).

      . In Bubis the telephone company had recorded the entire content of all calls placed.

      . We note that § 2511(2)(a)(i), by its terms, contains no limitation as to time.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Gary Lee MACK, Appellant.
    No. 74-2123.
    United States Court of Appeals, Ninth Circuit.
    Dec. 24, 1974.
    Certiorari Denied April 14, 1975.
    See 95 S.Ct. 1578.
    John Cleary (argued), of Federal Defenders, Inc., San Diego, Cal., for appellant.
    Jeff Arbetman, Asst. U. S. Atty., San Diego, Cal., for appellee.
    Before CHAMBERS and GOODWIN, Circuit Judges, and EAST, District Judge.

       The Honorable William G. East, United States District Judge for the District of Oregon, sitting by designation.

   OPINION

PER CURIAM:

Gary Lee Mack urges that the imposition of a three-year prison term and a two-year special parole term pursuant to 21 U.S.C. § 841 in a corrective sentence following a successful appeal to this court violated the Double Jeopardy Clause of the Fifth Amendment. On the prior appeal we stated that imposition of an identical sentence did not violate the Double Jeopardy Clause. United States v. Mack, 494 F.2d 1204, 1206-1208 (9th Cir. 1974). Mack contends that this statement must be deemed dictum since we went on to hold that a valid sentence had not been imposed.

Mack argues that, because the sentencing judge had pronounced only a three-year sentence in the first, defective sentence, this three-year term became the upper limit for all punishment, including any mandatory parole period necessary to make the sentence legal. In other words, he argues that the sentencing court was bound by double-jeopardy principles to carve the mandatory special parole term out of the three years first pronounced. In the first appeal we found nothing in the cases cited by appellant to require such a result, and he has offered no new support for his argument. It is clear that Congress, in enacting the mandatory special parole term, did not intend that it be carved out of the custodial portion of a sentence arrived at by the sentencing court in the exercise of its sentencing discretion. The statute says that the parole term must be added to the term of imprisonment.

Affirmed.


author: PER CURIAM.

text:
    Vernon MOLBREAK et al., Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Appellee.
    No. 74-1688.
    United States Court of Appeals, Seventh Circuit.
    Argued Jan. 7, 1975.
    Decided Jan. 15, 1975.
    Bryan D. Woods and Vernon Molbreak, Madison, Wis., for appellants.
    Scott P. Crampton, Asst. Atty. Gen., Carolyn R. Just, Atty., Tax Div., Dept, of Justice, Washington, D. C., for appellee.
    Before PELL and TONE, Circuit Judges, and PERRY, Senior District Judge.

       Senior District Judge Joseph Sam Perry of the I rthern District of Illinois is sitting by designation.

   PER CURIAM.

This is an appeal from decisions of the United States Tax Court determining deficiencies in income tax for the appellants for the years 1967 and 1968. Molbreak v. Commissioner of Internal Revenue, 61 T.C. 382 (1973).

The basic issue presented on the appeal is whether the appellants held a parcel of real estate which they sold May 19, 1967 for more than six months within the meaning of 26 U.S.C. § 1223. Taxpayers had treated the profit under section 1223 as long-term capital gain. The Commissioner disagreed on the holding period and assessed the deficiencies and the Tax Court agreed with the Commissioner.

The resolution of the basic issue in turn depends upon whether the taxpayers accomplished an exchange of property rights in 1967 within the meaning of 26 U.S.C. § 1031. The facts are not disputed.

Upon the basis of briefs and oral argument and upon consideration of the record, we are satisfied that the Tax Court reached the correct result for the proper reasons. Accordingly, we adopt as the opinion of this court the decision of the Tax Court and affirm.


text:
    A. Louise DALY, Executrix of the Estate of Donald A. Daly, Deceased, Plaintiff-Appellant, v. McNEIL LABORATORIES, INC., et al., Defendants-Appellees.
    No. 74-1654.
    United States Court of Appeals, Sixth Circuit.
    Jan. 21, 1975.
    Walter Bortz, Beall, Hermanies & Bortz, Cincinnati, Ohio, for plaintiff-appellant.
    Ralph F. Mitchell, Rendigs, Fry, Kiely & Dennis, Cincinnati, Ohio, T. E. Jenks, Robert Alexander, Young & Alexander, Dayton, Ohio, William H. Thornburgh, Curtner, Selva, Parkin & Seller, Dayton, Ohio, Beall, Hermanies & Bortz, George F. Gore, III, Cleveland, Ohio, David C. Greer, Bieser, Greer & Landis, Dayton, Ohio, for defendants-appellees.
    Before PHILLIPS, Chief Judge, WEICK and CELEBREZZE, Circuit Judges.
   PER CURIAM.

Appellant, A. Louise Daly, Executrix of the estate of her deceased husband, Donald A. Daly, appeals from a judgment entered on a jury verdict for the defendants, in her diversity action in the District Court, wherein she sought damages for his pain and suffering and for his wrongful death. The defendants are McNeil Laboratories, Inc. (the manufacturer of an anesthetic called “Innovar”), Doctor Joseph C. Brown, an anesthesiologist, and Doctor Richard J. Dobies, an ophthalmologist.

On August 6, 1970 Donald Daly was operated on in Kettering Memorial Hospital in Dayton, Ohio, for removal of a cataract in his right eye. The anesthesiologist administered Innovar as an anesthetic agent. During the course of the surgery Mr. Daly suffered a cardiac arrest and consequent brain damage; he died on August 21, 1970.

The suit charged that McNeil Laboratories failed to adequately warn and advise the users of the drug regarding its effects, possible adverse reactions, and counteracting drugs in case of adverse effects. The alleged negligence of the two doctors was based on their selection of Innovar, and on their efforts to resuscitate Daly after his cardiac arrest.

On appeal Mrs. Daly contends that the Court erred in permitting the two doctors and their experts to testify concerning their experience with Innovar both before and after the operation, while restricting her to offering evidence of experiences, events and adverse reactions with the drug only prior to the operation.

The trouble with this contention is that no objection was made to the questions on this subject addressed to the two doctors and their experts. The liability of the defendants with respect to the use of the drug could be measured only by their knowledge of its characteristics obtained prior to the operation and not on after-acquired knowledge.

In our opinion the factual issues were sharply in dispute and were fairly submitted to the jury.

We find no prejudicial error in the admission or rejection of evidence, in the conduct of the trial, or in the instructions to the jury.

The judgment of the District Court is therefore affirmed.


text:
    Tallulah MORGAN et al., Plaintiffs-Appellees, v. John J. KERRIGAN et al., Defendants-Appellants.
    No. 75-1001.
    United States Court of Appeals, First Circuit.
    Jan. 7, 1975.

      Francis J. DiMento, Boston, Mass., with whom James J. Sullivan, Jr., and DiMento & Sullivan, Boston, Mass., were on application for stay, for defendants-appellants.
    John Leubsdorf, Boston, Mass., for plaintiffs-appellees.
    Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.
   PER CURIAM.

Defendants, three members of the Boston School Committee, seek to stay the sanctions imposed by a civil contempt order of the district court pending disposition of their appeal from that order. Our inquiries must be directed to the likelihood of defendants’ ultimate success and a balancing of harm in the interim to them with the harm suffered by plaintiffs and the public if the stay were granted.

The critical order was issued by the district court on October 31, 1974. It required the School Committee to file a plan for student desegregation by December 16, 1974. Broad guidelines as to objectives, techniques, and implementation schedules were set forth. Defendants were instructed to use the most reliable available data, with allowance for later revisions. The resulting plan was to be approved by the Committee before submission to the court. It was to be distributed to other interested persons and community groups, which should then have the right to submit alternative plans and proposals to all or part of the Committee’s plan.

No objection was made to or appeal taken from this order. On the deadline date for reception of the plan, defendants voted against its submission. Hearing was had on plaintiffs’ subsequent motion for civil contempt on December 27. The court found that defendants were in contempt and on December 30 issued an order of contempt and imposed sanctions — a coercive daily fine yet to be imposed; non-participation in any Committee discussion, decision or function pertaining to desegregation; and institution of an inquiry into the possibility of suspension of two of the defendants from practice as lawyers before the court. This being a judgment of civil contempt, the defendants may at any time avoid further sanctions by the simple expedient of complying with the order. The court recognized that defendants construed the requirement of “approval” as offending their personal convictions and conditioned the sanctions on failure to vote to “authorize” the prompt submission of a plan.

Defendants do not challenge the power or even the wisdom of the court in ordering that the resources of the Boston School Department be used in formulating a plan. But they challenge the power of the court to require that the Committee be identified with any plan. They point to the facts that counsel for the Committee filed a plan with the court, that this action was not disavowed by the Committee, and that copies of the plan were printed for distribution, and assert that there has been a “ratification by silence”.

The first hurdle confronting defendants is “The longstanding rule that a contempt proceeding does not open to reconsideration the legal or factual basis of the order alleged to have been disobeyed . . . . [W]hen it has become final, disobedience cannot be justified by re-trying the issues as to whether the order should have issued in the first place.” Maggio v. Zeitz, 333 U.S. 56, 69, 68 S.Ct. 401, 408, 92 L.Ed. 476 (1948). Nothing has been presented to us which would suggest that the court’s order of October 31 is now open to challenge.

There is a second obstacle to defendants’ ultimate success. They misconceive the thought of the court’s directive, particularly as it was rephrased in its order of December 30. If, for reasons of conscience, they felt they could not “approve” any citywide desegregation plan, the court has made it clear that what it' requires is a plan “authorized” by the Committee to be submitted to it. This .does not connote approval but a representation, made under the court-imposed limitations and restraints of the order of October 31, that a plan as developed by school department staff and reviewed by School Committee members is their best effort to respond to the objectives and guidelines of the court. While this implies no more of an act of personal endorsement than a “ratification by silence”, it does signify that intelligence and judgment as to ways and means have been applied.

We find the act of submitting an authorized plan under these circumstances likely to prove indistinguishable from the carrying out of any other lawful orders of the court — which defendants have declared their intention of doing. In school desegregation cases, courts have frequently required school boards to submit plans which can serve as a useful focus for analysis, criticism, and improvement. See, e. g., Brown v. Board of Education [Brown II], 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955); Green v. County School Board of New Kent County, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968); United States v. Board of School Commissioners of the City of Indianapolis, 503 F.2d 68 (7th Cir. 1974); Adams v. Mathews, 403 F.2d 181 (5th Cir. 1968); Vaughns v. Board of Education of Prince George’s County, 355 F.Supp. 1034 (D.Md.1972). Indeed, this is but a manifestation of the principle that “School authorities have the primary responsibility for elucidating, assessing, and solving [desegregation] problems”. Brown II, 349 U.S. at 299, 75 S.Ct. at 756.

Requiring a plan from the School Committee would seem as sensible and necessary as involving any governmental agency in drafting proposals for regulations mandated by a court. Indeed, to isolate a city’s elected school officials from the desegregation planning process would seem an exercise in needless frustration.

We therefore are not persuaded of the likelihood that defendants will ultimately succeed in their challenge to the order they are presently defying. And while defendants face the prospect of coercive fines and other sanctions if they continue to refuse to submit any plan, the step necessary to purge them of contempt places no unreasonable burden on them. In contrast, the delay and disruption in the planning process and the continued deprivation of otherwise available federal education funds seem a disproportionate price to pay.

The motion for stay pending appeal is denied.


text:
    Tommy Lee WILBRON, Appellant, v. Terrell Don HUTTO, Commissioner, Arkansas Department of Correction, et al., Appellees.
    No. 74-1866.
    United States Court of Appeals, Eighth Circuit.
    Submitted Jan. 10, 1975.
    Decided Jan. 28, 1975.
    Tommy Lee Wilbron, pro se.
    James Guy Tucker, Atty. Gen., and Michael S. Gorman, Asst. Atty. Gen., Little Rock, Ark., for appellee.
    Before MATTHES, Senior Circuit Judge, and STEPHENSON and WEBSTER, Circuit Judges.
   PER CURIAM.

Tommy Lee Wilbron, an inmate at the Cummins Unit of the Arkansas Department of Correction, brought this civil rights complaint against the Commissioner of Correction alleging the denial of adequate medical care.

Specifically, appellant claims that a physician at the Arkansas State Hospital informed appellant that he would need an operation on his injured hand; that the prison officials have not returned him to the hospital for the required surgery; that prison officials have refused appellant any further medical treatment; and that they have forced him to work in the fields causing further pain and injury to his hand.

The district court secured appellant’s medical records from the prison. Upon examination of the records along with appellant’s pro se complaint the court determined that no federal claim had been stated and dismissed the complaint, saying in part:

The medical records of the Cummins Unit reveal that the physician at the Arkansas State Hospital stated that the petitioner might require an exploratory operation, but that he had doubts as to the benefits to be derived from such an operation. These records also reveal that the petitioner has been seen by prison medical personnel several times since his last trip to State Hospital and was examined and Xrayed by the prison physician as recently as June 4, 1974.
In light of this record and inasmuch as it appears that petitioner is receiving medical attention from the respondents, what remains is a mere disagreement between the petitioner and the prison physician as to what treatment is necessary for his care. In such cases, the Court should rely on the reports of the prison physician and leave the matter to his judgment. (Citing cases.)

Of course, a prisoner’s pro se petition should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972).

This court has recognized that “a charge of deliberate indifference by prison authorities to a prisoner’s request for essential medical treatment is sufficient to state a claim.” Freeman v. Lockhart, 503 F.2d 1016 (8th Cir. 1974), citing Corby v. Conboy, 457 F.2d 251 (2d Cir. 1972).

Allegations of mere negligence in the treatment of a prisoner’s condition or claims based upon differences of opinion over matters of medical judgment fail to state a federal constitutional question absent exceptional circumstances. Jones v. Lockhart, 484 F.2d 1192 (8th Cir. 1973); Cates v. Ciccone, 422 F.2d 926 (8th Cir. 1970).

We find that the district court acted properly in securing appellant’s medical records. Cf. Cates v. Ciccone, supra. It may well be, as the trial court found, that in light of the record what remains is a mere disagreement between the petitioner and the prison physician as to what treatment is necessary. Under such circumstances the petitioner could obviously prove no set of facts which would entitle him to relief in federal court.

However, from the record before this court it is impossible to determine the truth or falsity of appellant’s claim that he was “forced to go to work as though he had no injury” without the requisite medical release. Judge Henley made no specific finding on this point.

We remand. The district court should determine on remand whether appellant was returned to work without medical authorization from the prison physician.

Remanded.

      . Other contentions are raised for the first time on appeal. We express no view on these contentions.

      . The Honorable J. Smith Henley, Chief Judge, United States District Court for the Eastern District of Arkansas.


text:
    Scott C. RETHORST, Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Appellee. VEHICLE RESEARCH CORPORATION, Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Appellee.
    Nos. 73-1925, 73-1926.
    United States Court of Appeals, Ninth Circuit.
    Dec. 3, 1974.
    Rehearing Denied Jan. 7, 1975.
    Certiorari Denied June 2, 1975.
    See 95 S.Ct. 2404.
    William J. Currer, Jr. (argued), Currer, Kayaian & Kakita, Los Angeles, Cal., for appellant.
    Dennis M. Nonohue (argued), Tax Div., Internal Revenue Service, Washington, D. C., for appellee.
    Before CARTER, TRASK and GOODWIN, Circuit Judges.
   OPINION

PER CURIAM:

The taxpayer appeals a decision of the Tax Court finding him liable for unpaid income taxes for the years 1961, 1962, 1963 and 1964. T.C. Memo. 1972-222, 31 CCH Tax.Ct.Mem. 1101 (1972). We affirm.

The facts are set out in detail in the Tax Court Memorandum. We have examined the lengthy record and are satisfied that there is substantial evidence to support the Tax Court’s finding that the taxpayer constructively received the income paid by the taxpayer’s wholly owned California corporation to a Swiss corporation controlled by the taxpayer.

The record also supports the assessment of an addition to tax under Section 6653(a), Internal Revenue Code of 1954, for “negligence or intentional disregard of rules and regulations”.

Affirmed.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. YOURITAN CONSTRUCTION COMPANY, a corporation, et al., Defendants-Appellants.
    No. 73-2445.
    United States Court of Appeals, Ninth Circuit.
    Jan. 14, 1975.

      Judith Wolf (argued), Dept, of Justice, Housing Section, Washington, D. C., for plaintiff-appellee.
    Gerald B. Ferrari (argued), Palo Alto, Cal., for defendants-appellants.
    Before HAMLEY, MERRILL and DUNIWAY, Circuit Judges.
   OPINION

PER CURIAM:

The defendants appeal from a judgment enjoining them from violating, and requiring certain actions to ensure their complaince with, the Fair Housing Act of 1968, 42 U.S.C. §§ 3601-3631. The trial judge’s findings of fact, conclusions of law, and judgment are reported in United States v. Youritan Construction Co., N.D.Cal., 1973, 370 F.Supp. 643.

Appellants mount a broadside attack on the trial court’s findings, conclusions and judgment, but we find no sufficient substance in any of them, with one exception, to require a reversal. The attack on the findings is largely based on conflicting evidence, and conflicting inferences that can be drawn from the evidence. We find no clear error in the judge’s resolutions of these conflicts. Assuming that, as appellants argue, certain evidence was erroneously admitted, we are convinced that its exclusion would not have affected the result. We therefore affirm the judgment for the reasons stated by the trial judge, except in one respect.

The action was filed pursuant to 42 U.S.C. § 3613 to enforce the Fair Housing Act. There is not one word in the complaint charging violation of Title VII of the Civil Rights Act of 1964 (Pub.L. 88-352, Title VII, 78 Stat. 253-266), since amended by the Equal Employment Opportunity Act of 1972 (Pub.L. 92 — 261, 86 Stat. 103) and codified at 42 U.S.C. §§ 2000e to 2000e~17. There is almost nothing in the record about appellants’ employment practices, and what little there is was admitted only to show the appellants’ state of mind. The trial judge found that all of appellants’ resident managers and other persons employed to assist in the tenant application process have been white persons. There is evidence to support this finding. (Finding 3, 370 F.Supp. at 646). However, the court did not find that appellants had violated the Equal Employment Opportunity Act, and there is almost nothing in the record to sustain such a finding, if it had been made.

Nevertheless, paragraph 5 of the injunction (370 F.Supp. at 652) orders compliance with 42 U.S.C. § 2000e et seq.

We leave to another day the question whether the Attorney General could have combined in one action a proceeding to enforce the Fair Housing Act and a proceeding to enforce the Equal Employment Opportunity Act. We note, for example, that the primary enforcer of the latter Act is now the Equal Employment Opportunity Commission, not the Attorney General. See 42 U.S.C. §§ 2000e-5 and 2000e-6(c). The fact is that in this action the Attorney General did not even purport to be enforcing the Equal Employment Opportunity Act. We think that basic requirements of notice and opportunity to defend require that paragraph 5 of the injunction be stricken.

The case is remanded to the district court with directions to strike paragraph 5 of the injunction. In all other respects, the judgment is affirmed.


text:
    In re Grand Jury Witness, Joseph Bernard DROBACK, Appellant, v. UNITED STATES of America, Appellee.
    No. 74-3096.
    United States Court of Appeals, Ninth Circuit.
    Dec. 26, 1974.
    Rehearing Denied Feb. 24, 1975.
    Application for Bail Denied March 17, 1975.
    Certiorari Denied May 12, 1975.
    See 95 S.Ct. 1952.
    John W. Keker of Kipperman, Shawn & Keker, San Francisco, Cal., for appellant.
    Charles Fanning, Asst. U. S. Atty., San Diego, Cal., for appellee.
    Before KOELSCH, CHOY, and GOODWIN, Circuit Judges.
   OPINION

PER CURIAM:

Joseph Bernard Droback appeals an order adjudging him in contempt of court for refusing to testify before a federal grand jury after the court granted him immunity under 18 U.S.C. §§ 6002-6003, and ordered him to testify. We affirm.

The only issue is whether a grand-jury witness whose identity and possible knowledge of crime have been discovered through a court-ordered wiretap may, by refusing to testify, delay the proceedings while he conducts a plenary challenge of the electronic surveillance. He may not. In re Persico, 491 F.2d 1156 (2d Cir.), cert. denied, 419 U.S. 924, 95 S.Ct. 199, 42 L.Ed.2d 158 (1974).

Droback contends that In re Lochiatto, 497 F.2d 803 (1st Cir. 1974), compels a contrary result. We disagree. But even if Lochiatto conflicts in part with Pérsico, we believe that Pérsico more accurately reflects congressional policy authorizing a narrow range of court-ordered wiretaps than does Lochiatto.

Droback’s interpretation of the cases would require the grand-jury investigation of any witness to come to a halt any time the witness chooses to assert some latent defect in the court order or its underlying papers, or some defect in the conduct of the surveillance.

We decline to hold that an immunized witness can stop the investigation, assert his list of objections, proceed with comprehensive discovery, and ultimately have a full-fledged suppression hearing to determine whether or not the court order allowing the surveillance or the manner of its execution is vulnerable to some attack.

The immune witness is, in effect, seeking to convert his contempt proceeding into a bystander’s action to test the legality of a surveillance program which is likely to produce evidence against one or more of his associates. We doubt that Congress intended to permit such delays, and, in the absence of Supreme Court direction to do so, we will not reach that result.

Affirmed.


author: McCREE, Circuit Judge.

text:
    Ramona FREEMAN, etc., Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.
    No. 73-2231.
    United States Court of Appeals, Sixth Circuit.
    Jan. 24, 1975.

      Frederick M. Coleman, U. S. Atty., Cleveland, Ohio, Ronald Glancz, Michael Stein, Dept, of Justice, Washington, D. C., Carla A. Hills, New York City, Morton Hollander, Washington, D. C., for defendant-appellant.
    Norman W. Shibley, Donald P. Traci, Spangenberg, Hasenflue, Shibley, & Traci, Cleveland, Ohio, for plaintiff-appellee.
    Before CELEBREZZE and McCREE, Circuit Judges, and CECIL, Senior Circuit Judge.
   McCREE, Circuit Judge.

This appeal requires us to determine whether the federal government is liable, under the Federal Tort Claims Act, for the deaths of sixteen persons and for injuries to two others who parachuted through a cloud cover into Lake Erie at the direction of their jump master and their pilot who had been misinformed by a federal air traffic controller that his airplane was over the Ohio airport where the parachutists were scheduled to land. The Government does not dispute that the air traffic controller was negligent in ascertaining the airplane’s location, nor does it contest the reasonableness of the damage awards. Instead, the Government contends first, that the air controller owed no duty of care to the parachutists; second, that the actions were barred by the contributory negligence of the parachutists in jumping through a cloud cover; and, third, that the pilot and jump master, in directing a jump through a cloud cover were negligent and that their intervening negligence relieved the Government from any liability for the deaths and the injuries of the parachutists. The district court entered a judgment for plaintiffs. Dreyer v. United States, 349 F.Supp. 296 (N.D.Ohio 1972). We affirm.

These consolidated cases arise from the tragic drowning of 16 parachutists and from injuries to two survivors who were participating in. a high altitude parachute jump on August 27, 1967. In all, 20 parachutists took off from Ortner Airfield, near Oberlin, Ohio, in a converted World War II B-25 airplane, to make a mass jump over the airport. Eighteen of the parachutists planned to jump together from 20,000 feet in a free fall maneuver, and the remaining two planned to jump from 30,000 feet.

The aircraft took off at 3 p. m. when there was only scattered cloud cover. It took approximately one hour for it to climb to 20,000 feet. During this time, the pilot maintained radio contact with the air traffic controller for the purpose of determining the plane’s location and insuring that the jump would take place directly over Ortner Airfield.

At about the same time that the B — 25 went aloft, a Cessna airplane took off with a photographer who planned to take motion pictures of the parachutists as they made their descent. The Cessna was flying at 12,000 feet. The district court found that the air traffic controller confused the Cessna with the B — 25 on his radarscope and gave flight directions to the B-25 based on his observation of the flight path of the Cessna.

Shortly before the B-25 pilot, Karns, made his final preparation to drop the jumpers, he called the traffic controller for final verification of his heading and location. The traffic controller informed Karns that he was headed in the right direction and was only three miles from Ortner. In fact, the B-25 was headed in a northeasterly direction away from Ortner and over Lake Erie. Neither the pilot nor the passengers were aware that the plane was over water because there was a solid cloud cover below the plane.

Inside the plane, the jumpers, sitting on benches in the cargo section of the plane or in the bomb bays, were squeezed together in nearly total darkness. There were no windows permitting them to see below the aircraft. Shortly before the jump, the pilot throttled back the engines, thus giving the jumpers their first indication that it was nearly time to jump. When the time for the jump came, the bomb bay doors opened and the inside of the plane was flooded with light. The jumpers experienced difficulty adjusting their eyes to this intense light and because of temporary blindness were unaware of the clouds beneath them and the lake below the clouds. At approximately the same time that the doors were opened, Karns relayed a hand signal to the jump master, Hartman, that they were over the target. Hartman then gave the signal for the jump and 18 parachutists evacuated the plane as quickly as they could. In fact, the district court found that they were all out of the plane within 30 seconds. It was only after they had jumped that they discovered the clouds beneath them. At 4,000 feet, when they broke through the cloud cover, they realized they were over Lake Erie approximately four miles offshore instead of over Ortner Airfield. Although a valiant rescue effort was made at the initiative of an off-duty Coast Guardsman, only two of the 18 parachutists were saved from drowning.

These negligence actions were brought against the United States under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), by the two survivors and by the estates of the 16 deceased jumpers for the negligence of the federal government air traffic controller. The district court, applying the law of Ohio where the negligent act occurred, Richards v. United States, 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962), found that the proximate cause of the deaths and the injuries was the negligent misidentification of the B-25 by the traffic controller.

Although the district court did not determine whether the pilot and the jump master were negligent in directing the jumpers to leave the plane without ascertaining that the plane was above a cloud cover, it ruled that any negligence on their part would not be imputed to the parachutists. The district court also rejected the Government’s contention that the jumpers were contributorily negligent because they jumped into a cloud cover in violation of a federal aviation regulation.

The first issue we consider is whether the air traffic controller owed a duty to parachutists. The appellant, citing no authority, claims that an air traffic controller’s duty is limited to regulating air traffic and to advising planes of their location in order to avoid aircraft crashes, but that the duty does not extend to advising parachutists whether it is safe to jump.

Although we have found no cases concerning the duty of controllers to parachutists, other courts have concluded that a controller’s duty to exercise reasonable care extends to the aircraft, passengers, crews and cargoes. Stork v. United States, 430 F.2d 1104 (9th Cir. 1970); Ingham v. Eastern Air Lines, 373 F.2d 227 (2d Cir.), cert. denied, 389 U.S. 931, 88 S.Ct. 295, 19 L.Ed.2d 292 (1967); Hennessey v. United States, 12 Av.Rep. U 17410 (N.D.Cal.1971). We see no reason here to exclude parachutists who are only a special kind of passenger.

The law of Ohio is that actionable negligence occurs when an injury results from conduct that a reasonably prudent and careful person should anticipate would cause injury to the plaintiff or to those in a similar situation. Gedeon, Administrator v. East Ohio Gas Co., 128 Ohio St. 335, 190 N.E. 924 (1934). Here, because the air traffic control center had been advised of the high altitude mass jump, the controller knew or should have known of the purpose of the flight, and he should have anticipated that any mistake with respect to the plane’s position could lead to disastrous consequences for the jumpers. Accordingly, we hold that the controller owed a duty to the jumpers to exercise due care.

The second issue we consider is whether the parachutists were guilty of contributory negligence. Ohio law bars recovery to any plaintiff whose negligence contributed as a proximate cause to the occurrence of the accident. Bahm v. Pittsburgh & Lake Erie R.R., 6 Ohio St.2d 192, 217 N.E.2d 217 (1966). The district court found that the skydivers aboard the B-25 were not contributorily negligent because they had no reason to suspect that the jump master would signal them to jump into solid cloud cover and because they had no reasonable means for making an independent observation of the cloud conditions below the plane.

The appellant contends, however, that the jumpers were guilty of negligence per se because they violated a federal aviation regulation, 14 C.F.R. § 105.29, that forbids parachute jumping through clouds. The regulation in effect at the time of the accident provided:

§ 105.29 Clearance from clouds requirements.
(a) No person may make' a parachute jump into or through a cloud and no person may make a parachute jump—
(1) Within the continental control area, at a distance of less than 1,000 feet under, 1,000 feet over, or one mile horizontally from any cloud formation; or
(2) Outside the continental control area, at a distance less than 500 feet under, 1,000 feet over, or 2,000 feet horizontally from any cloud formation.
(b) No pilot in command of an aircraft may allow any person to make a parachute jump from that aircraft unless cloud conditions allow that person to comply with the requirements of paragraph (a) of this section. [Doc. 1491, 27 F.R. 11636, Nov. 27, 1962, as amended by document 4057, Arndt. 105-1, 29 F.R. 14920, Nov. 4, 1964.]

Appellees contend that the district court was correct because the violation of the administrative regulation was not negligence under the circumstances. It was intended to provide protection only for persons, objects or other aircraft from injury caused by parachutists jumping through clouds. It was not intended to insure the safety of parachutists as a class. Accordingly, it is argued, the violation of the administrative regulation is not negligence per se.

We observe that the federal air regulations have been adopted by the State of Ohio as its own. Ohio Rev.Code §§ 4561.05, 4561.14 (1973). Thus, violation of a federal air regulation constitutes a violation of Ohio law and is, under appropriate circumstances, negligence per se. See Bibler v. Young, 492 F.2d 1351 (6th Cir. 1974). If an injury caused by an action which violates a safety statute is of the kind that the statute was intended to prevent, the action constitutes negligence per se. Gorris v. Scott, L.R. 9 Ex. 125 (1874). In that case defendant violated a statute requiring ships to provide separate pens for stock. During a storm, plaintiff’s sheep were washed overboard. It was clear that the pens required by statute would have prevented the loss of the sheep, but the defendant was not liable because the statute was intended only to guard against “the possibility of sheep or cattle being exposed to disease on their way to this country.” This limitation of the negligence per se principle has been recognized by Ohio courts. See Miller v. East Ohio Gas Co., 35 Ohio App. 113, 172 N.E. 300 (1930). Accordingly, if the regulation in this case was not intended to protect parachutists, its violation by them would not be the legal cause of injury to them.

The purpose of the parachute regulations whose applicability is at issue is to protect air traffic and persons or property on the ground. Thus, an introductory section to Part 105 of the Code of Federal Regulations, dealing with parachute jumping, provides:

§ 105.13 General.
No person may make a parachute jump, and no .pilot in command of an aircraft may allow a parachute jump to be made from that aircraft, if that jump creates a hazard to air traffic or to persons or property on the surface.

Moreover, a hearing conducted by the Senate Aviation Subcommittee concerning parachute jumping regulation supports the view that the regulations were not designed to protect the parachutist. In a letter to Senator Warren G. Magnuson, Chairman of the Senate Commerce Committee, John L. Sweeney, Assistant Secretary for Public Affairs for the Department of Transportation, stated that the rules in existence at the time of the accident were “designed primarily to prevent the jumper from creating a hazard to aircraft operating in the airspace or to persons and property on the ground.” In another letter from the Chairman of the National Transportation Safety Board, Department of Transportation, it was suggested that “to direct the FAA to undertake a program designed primarily to protect the parachutists would involve a basic change in the theory of federal responsibility in this area.” Finally, David D. Thomas, Deputy Administrator of the FAA testified that none of the regulations in effect at the time of the accident were designed to protect parachute jumpers because such regulation was beyond the scope of the Administrator’s authority under the federal act. Hearings on S. 2137 before the Aviation Subcomm. of the Senate Comm. on Commerce, 90th Cong., 1st Sess. (1967).

Both the regulations and the testimony before the Senate Subcommittee on Aviation require the conclusion that the purpose of the regulations governing parachute jumping is to insure the safety of aircraft traffic and persons and property on the ground, not the safety of parachutists. Therefore, we conclude that the parachutists do not fall within the class intended to be benefited by the regulations and that their violation by the jumpers does not constitute negligence per se.

The government contends that even if it is not negligence per se to jump through a cloud, it is nonetheless contributory negligence as a matter of law. In Ohio, a plaintiff’s disregard of reasonable standards of conduct which, if followed, would have prevented his injury will preclude his recovery. Canter v. Valley, 168 Ohio St. 590, 157 N.E.2d 113 (1959); Mills v. City of Springfield, 75 Ohio Abs. 150, 142 N.E.2d 859 (1956). However, it is also Ohio law that one need not anticipate the negligence of another until he becomes aware of that negligence. Northwest Airlines, Inc. v. Glenn L. Martin Co., 224 F.2d 120 (6th Cir. 1955), cert. denied, 350 U.S. 937, 76 S.Ct. 308, 100 L.Ed. 818 (1956); Baldridge v. Wright Gas Co., 154 Ohio St. 452, 96 N.E.2d 300 (1951); Mahoning Valley Railway Co. v. Kazanecka, 7 Ohio App. 289 (1917).

In this case, the parachutists relied on the signal from the pilot and jump master before they jumped. The pilot, in turn relied on the communication from the traffic controller that the aircraft was over the airport. The district court found that the air traffic controller negligently misidentified the plane, that the pilot signaled to the jump master for the jump even' though he should have been aware of the possibility of misidentification of the plane by the controller and should have been aware of the cloud cover below the plane, and that the jump master relayed the jump signal without determining whether the plane was above a solid cloud cover. If any one of these three persons had acted in a reasonably prudent manner, the accident would not have occurred.

In concluding that the jumpers were not guilty of contributory negligence, the district court observed:

At the time the B-25 took off, the cloud cover in the vicinity of .Ortner Airfield was such as to permit lawful jumping.
While airborne, the skydivers had no reasonable opportunity to observe the conditions below the plane. Those in the bomb bay area were in virtually complete darkness, being in a semi-enclosed area. While there were a window and a hatch in the rear area, the jumpers were required to remain seated on the floor of the plane and on the plank bench at the bulkhead. From such locations their view was on a flat plane to the sides of the B — 25.
Momentarily before the jump sign, the bomb bay doors opened, flooding the interior with bright light. The reaction upon the divers in the bomb bay area was described as coming out of a dark theater into bright sunlight, temporarily blinding the viewer as to conditions about him.
The first view the divers in the rear area had of the conditions outside the plane was upon their exit in response to the jump signal.
Under the facts and circumstances reflected on this record, the Court finds no basis to believe that the skydivers aboard the B — 25 would have any reason to suspect that Mr. Hartman would signal them to jump into a solid cloud cover, and no reasonable means for making independent observations of the cloud conditions below the plane. The Court, therefore, finds that their exiting of the B-25 as quickly as they could in reliance upon the signal by Mr. Hartman to commence the high altitude relative work jump did not constitute negligence on their part.

In Northwest Airlines, supra, the plaintiff airline sued an airplane manufacturer for negligent design of several airplanes, one of which crashed as a result of the left wing being torn from the plane during a flight through a thunderstorm. The defendant contended, inter alia, that because representatives of Northwest were present throughout the manufacturing and testing of the airplanes, their failure to protest the use of the faulty wing splice device constituted contributory negligence. This court stated: “One to whom a duty is owed has a right to assume that it will be performed. He is not required to anticipate negligent acts or omissions on the part of others.” 224 F.2d at 127. Thus, even though Northwest representatives were present and could probably have ascertained that the wing design was faulty, this court did not hold such conduct to be contributory negligence because the plaintiffs had a right to rely on the manufacturer’s exercise of due care in building the planes.

Similarly, we are unable to say in this case that the parachutists should have been aware of the hazards below them when they were entitled to rely on the exercise of due care by the controller, pilot and jump master in positioning the plane directly over the airport. We believe the reliance of the parachutists on these three individuals was reasonable in light of the circumstances, and we agree with the district court’s conclusion that the parachutists were not guilty of contributory negligence.

The next issue we consider is whether the negligence of the pilot and jump master may be imputed to the parachutists. The law of Ohio is that apart from statute and cases of joint enterprise, negligence may not be imputed. 39 Ohio Jur.2d Negligence § 114, p. 676, Toledo Rys. & Light Co. v. Mayers, 93 Ohio St. 304, 309, 112 N.E. 1014 (1916). See also, Cincinnati Street Ry. v. Wright, Administrator, 54 Ohio St. 181, 43 N.E. 688 (1896).

For example, in Lester v. John R. Jurgensen Co., 400 F.2d 393, 396 (6th Cir. 1968), an automobile accident case, this court stated that in Ohio, negligence can be imputed from a driver to a passenger “only if it can be shown that the [driver and passenger] were engaged in a joint enterprise of such a nature that the passenger has a right to control the acts of the driver in his operation of the vehicle.” We pointed out there that:

the person alleging joint enterprise for the purpose of imputing negligence has a heavy burden of proof since the courts do not favor the doctrine. It is not sufficient that the driver and passenger are fellow employees, Parton v. Weilnau [169 Ohio St. 145, 158 N.E.2d 719 (1959)] or that they have a common destination or objective in making the trip, Casper v. Higgins, 54 Ohio App. 21, 6 N.E.2d 3 (1935), or that the passenger has paid a share of the cost of the trip. Elfers v. Bright, 108 Ohio App. 495, 162 N.E.2d 535 (1958). Nor is it sufficient that the driver would grant any reasonable request of the passenger in routing the trip. Cf. Oswell v. Smoyer, 138 N.E.2d 168, 169 (Ohio App.1952). In cases concerning a driver and his passenger, the essential element for the imputation of negligence in Ohio is that the passenger have a right or responsibility to control the actions of the driver in his operation of the vehicle. New York, Chicago & St. Louis Railroad Company v. Kistler, 66 Ohio St. 326, 64 N.E. 130 (1902); compare Toledo Railways & Light Co. v. Mayers, 93 Ohio St. 304, 112 N.E. 1014 (1916); and Parton v. Weilnau, 169 Ohio St. 145, 158 N.E.2d 719 (1959).

400 F.2d at 396-97 [footnote omitted].

The circumstances of this case do not rise to the level of a joint enterprise because the passengers did not have the power to control the pilot. They were completely separated from the cockpit area, and they were unable to move from their seats.

Accordingly, we follow the rule in Wasilko v. United States, 300 F.Supp. 573 (N.D.Ohio 1967), aff’d, 412 F.2d 859 (6th Cir. 1969), an Ohio airplane case, where an action was brought against the United States for the death of plaintiff’s husband and son in an airport crash. Judge Thomas held that airport controllers had been negligent in granting clearance, without warning of possible wake turbulence, to a small plane to take off just behind and below an airliner. The district court held the husband-pilot contributorily negligent for failing to consider wake turbulence. With respect to the son, the court stated that although the negligence of the pilot contributed to his son’s death, it was not imputable to him. Accordingly, the court allowed recovery for the son’s death.

The last issue we consider is whether the negligent conduct of the pilot and jump master were intervening causes of the accident. In its brief, appellant quotes language from Thrash v. U-Drive-It Co., 158 Ohio St. 465, 110 N.E.2d 419 (1953), to the effect that:

where there intervenes between an agency creating a hazard and an injury resulting from such hazard another conscious and responsible agency which could and should have eliminated the hazard, the original agency is relieved from liability. A break in the chain of causation thereby takes place which operates to absolve the original agency. 65 C.J.S. Negligence § 111, pages 691, 692.

158 Ohio St. at 471, 110 N.E.2d at 422.

This language, by itself, suggests that the traffic controller’s misidentification of the airplane although negligent did not cause the injuries complained of because the pilot should have “eliminated the hazard” of the jump over Lake Erie. However, the law of Ohio requires that an efficient intervening cause in order to break the chain of causation must be one “not brought into operation by the original wrongful act, but operating entirely independent thereof; it must be such a cause as would have produced the result, without the co-operation of the original wrong.” Dougherty, Administrator v. Hall, 70 Ohio App. 163, 172, 45 N.E.2d 608, 613 (1941).

In the Dougherty case, defendant argued that he should not be held liable for the plaintiff’s death because, assuming his negligence caused plaintiff’s injuries requiring surgery, plaintiff’s death was caused by the administration of ether anaesthesia to a person with an enlarged thymus gland, a procedure that frequently causes death. The court rejected that argument and quoted with approval this statement: “The intervention of a responsible human agency between a wrongful act and the injury does not absolve the defendant from liability, if his negligence and the intervening agency cooperated in causing the injury.” 70 Ohio App. at 172, 45 N.E.2d at 613, quoting 29 Ohio Jur. Negligence § 78. See also Mouse v. Central Savings & Trust Co., 120 Ohio St. 599, 167 N.E. 868 (1929), Neff Lumber Co. v. First National Bank, 122 Ohio St. 302, 171 N.E. 327 (1930).

In this case, the intervening negligence would not have produced the result without the cooperation of the original wrong committed by the traffic controller. It was the traffic controller’s negligent act that caused the pilot to believe he was over his intended target. The consequence of this act continued during the entire episode and the intervening negligence of the pilot and jump master did not alone cause the descent into Lake Erie and the drowning of the 16 jumpers. Accordingly, we determine that the intervening negligence does not bar recovery.

Affirmed.

      . In Bibler v. Young, 492 F.2d 1351 (6th Cir. 1974) the plaintiff-appellant violated a federal air regulation, 14 C.F.R. § 91.87(b), requiring two-way radio communication with the control tower when an aircraft is within an airport traffic area. As a result of this violation, Approach Control was unable to guide the plaintiff away from a collision with another plane. This violation was held to be negligence per se.

      . According to the district court’s opinion, the pilot should have been aware of the possible misidentification of his plane. Possibly he should have aborted the jump for this reason, or he should not have permitted a jump because the plane was over a solid cloud cover.