author: SWYGERT, Chief Judge.

text:
    ALLEGHENY AIRLINES, INC., and G.E.C.C. Leasing Corporation, Plaintiffs-Appellants, v. UNITED STATES of America et al., Defendants-Appellees.
    No. 73-1273.
    United States Court of Appeals, Seventh Circuit.
    Argued Feb. 14, 1974.
    Decided Sept. 16, 1974.
    Rehearing and Rehearing En Banc Denied Nov. 26, 1974.

      Walter E. Rutherford, New York City, and Emerson Boyd, Indianapolis, Ind. (Robert L. Alpert, Robert B. Haserot, New York City, and William V. Hutch-ens, Indianapolis, Ind., on the brief), for Allegheny Airlines, Inc., and GECC Leasing Corp.
    R. Stanley Lawton and Arthur P. Kal-leres, Indianapolis, Ind., for Brookside Corp.
    James E. Rocap, Jr., and Thomas P. Ledgerwood, Indianapolis, Ind., for Forth Corp.
    Floyd W. Burns and Richard R. McDowell, Indianapolis, Ind., for Lee Le-May, Administrator.
    Irving Jaffe, Acting Asst. Atty. Gen., Washington, D. C., Stanley B. 'Miller, U. S. Atty., Indianapolis, Ind., Morton Hollander and Michael H. Stein, Washington, D. C., for the United States.
    Before SWYGERT, Chief Judge, KIL-EY, Senior Circuit Judge, and HOFFMAN, Senior District Judge.

      . Judge Kiley approved this opinion before he died on September 6, 1974.

      . Honorable Julius J. Hoffman of the United States District Court for the Northern District of Illinois is sitting by designation.

   SWYGERT, Chief Judge.

Plaintiffs, Allegheny Airlines, Inc. (Allegheny) and GECC Leasing Corp. (GECC) appeal from final judgments entered in favor of defendants, Brook-side Corporation (Brookside), Forth Corporation (Forth is a wholly-owned subsidiary of Brookside), the United States, and the estate of Robert W. Carey. As a result of a mid-air collision on September 9, 1969 near Fairland, Indiana between an Allegheny aircraft en route to Indianapolis and a Piper Cherokee aircraft owned by Forth and operated by Carey who was a student pilot, plaintiffs brought suit to recover $3,750,000 for the destruction of Allegheny’s DC-9-31 aircraft and to recover $250,000 for a turbojet engine mounted thereon which was owned by GECC.

Pursuant to the Federal Tort Claims Act plaintiffs’ claims against the United States were tried to the court while, simultaneously, the plaintiffs’ claims against the other defendants were tried to the jury. At the conclusion of plaintiffs’ case the district judge entered the following orders which are the subject matter of this appeal: the court granted the Government’s motion to dismiss under Rule 41(b) of the Federal Rules of Civil Procedure on the ground that Allegheny was contributorily negligent; on the basis of the court’s determination that Allegheny was contributorily negligent, the court applied the doctrine of collateral estoppel to preclude Allegheny from continuing further against the defendants Forth and the estate of Carey; the trial judge granted a directed verdict in favor of Brookside; and dismissed GECC as a party plaintiff on the ground that it was not the real party in interest.

On appeal plaintiffs raise various issues, the most important of which are: (1) whether the district court’s findings of fact and conclusions of law that Allegheny was contributorily negligent and .thus barred from recovery are supported by substantial evidence and in accord with applicable law, and are not clearly erroneous; (2) whether the trial judge erred in dismissing GECC on the ground that it was not the real party in interest; (3) the propriety of the district court’s grant of summary judgment to Forth and the estate of Carey on the ground that Allegheny was collaterally estopped; (4) whether the trial judge erred in entering a directed verdict in favor of Brookside. Plaintiffs also challenge as reversible error certain other rulings of the trial judge which they contend must be corrected in the event a new trial is granted. Wé reverse and remand for a new trial as to plaintiffs’ claims against the United States, Forth, and the estate of Carey but affirm with respect to the defendant Brookside.

I

The mid-air collision between Allegheny’s aircraft, Allegheny Airlines Flight 853 (Flight 853), and the Piper Cherokee aircraft operated by Robert W. Carey occurred at approximately 3:29 p.m. on September 9, 1969 in the airspace northwest of Fairland, Indiana. At the time of the collision Carey, as a student pilot, was engaging in a solo cross-country flight as part of his training for a private pilot’s license. The airplane he was operating was owned by Forth Corporation which among other things operated Brookside Airpark and sold, rented, and serviced aircraft as well as provided ground and flight instruction to student pilots such as Carey. Carey had departed from Brookside Airpark, located northeast of Indianapolis, and was heading in a southernly direction, intending to fly to Bakalor Air Force Base located southeast of Indianapolis at Columbus, Indiana. Since Carey possessed only a student pilot’s license all his flying was required to be performed in accordance with visual flight rules (VFR) requirements, the most important of which, for purposes of the instant action, was that Carey was prohibited from operating his aircraft closer than 500 feet from the base of any clouds. 14 C.F.R. § 91.105 (1968).

Allegheny Flight 853 departed from Cincinnati, Ohio en route to Indianapolis’ Weir Cook Airport at 3:16 p.m. Flight 853 was under an instrument flight rules (IFR) clearance and consequently was operating under the jurisdiction of and in communication with the Indianapolis Air Traffic Control Center. Air traffic controller Masen Grant directed Flight 853 to proceed to Shelbyville, Indiana and then on to Indianapolis at an altitude of 10,000 feet mean sea level (MSL). At approximately 3:23 p.m. controller Grant advised Flight 853 that it was in radar contact and directed it to descend to 6,000 feet. Thereafter, since the aircraft was going to land at Indianapolis, controller Grant was required to terminate his jurisdiction over Flight 853 and transfer air traffic control jurisdiction to the Indianapolis Approach Control facility, the Federal Aviation Agency facility that had jurisdiction for landings at Weir Cook Airport. Grant effected a radar handoff of Flight 853 to Merrill T. McCammack, the arrival radar approach controller at Weir Cook.

At 3:27 p.m. Flight 853 contacted controller McCammack and reported that it was in the process of descending to 6,000 feet. Approximately twelve seconds later, McCammack responded by requesting the aircraft to identify itself by use of its transponder to enhance its radar signal. McCammack then directed Flight 853 to fly a heading of 280 degrees and to descend to 2500 feet. Allegheny Flight 853 acknowledged these instructions at approximately 3:27.29 p. m.; this was the last known or recorded transmission of Flight 853.

Subsequent to Allegheny’s 3:27.29 p. m. confirmation of instructions, Mc-Cammack allegedly watched the aircraft turn to 280 degrees on his radar, scanned his radar to determine if there was any other traffic in the area, and, observing none, he admittedly turned his attention from the radar screen to perform certain routine administrative functions which he described as follows:

“I was observing the target, checking the area in front of the aircraft and to either side to see if there were any aircraft that would be traffic for the flight that I was controlling. I observed no traffic for the aircraft, so then at approximately the time of twenty-nine I looked at the flight progress strip and noticed that I had not marked down the radar handoff time. I looked at the clock and it was approximately twenty-nine and I wrote this time down on the strip. I then coordinated with the departure controller to see if there was any other traffic that he might have that would be a factor for the IFR separation of Allegheny 853, would be following anyone that they might be working that would be landing in Indianapolis ahead of flight 853. I also checked the weather sequence to make sure that the weather was still the same, checked the wind indicators to see ■what the wind was presently reading, and I also cheeked the altimeter to see that the information that the pilot had received was current. After doing these coordinating duties, I looked back to the radar scope and noticed that the target on Allegheny 853 was no longer visible.”

While his attention was allegedly diverted, the mid-air collision occurred at 3:29.13’p.m. and the radar target return for Flight 853 disappeared within seconds thereafter.

McCammack did not observe the collision nor the disappearance of Flight 853 on his radar scope. Nor, did he at any time advise Flight 853 of the presence of the Piper Cherokee aircraft.

The collision occurred at an altitute of approximately 3600 feet MSL with the Piper Cherokee striking Flight 853 from the right at an angle of 106 degrees. Both aircraft crashed to the ground with the wreckage strewn over a site approximately twenty nautical miles southeast of Weir Cook Airport. There were no survivors of the collision.

II

In assessing the propriety of the district court’s findings as to Allegheny’s asserted contributory negligence, we note that the proper standard for review of such findings is whether they are clearly erroneous and not supported' by substantial evidence. The findings of the district court which led to its holding of contributory negligence are:

“[1.] The collision occurred . . . five hundred feet (500') or more below the base of the clouds.
“[2.] Allegheny . . . failed to exercise ordinary care under the circumstances in that plaintiff’s aircraft was operated by its crew who failed to maintain a lookout for the Piper Cherokee 140 aircraft.
“[3.] Allegheny . . . failed to exercise ordinary care under all circumstances ... in that its crew conducted the aircraft descent from cruise altitude in an improper manner in that the rate of descent was in excess of five hundred feet (500') per minute. .
“[4.] Allegheny . . . failed to exercise ordinary care under all the circumstances in that its crew conducted the aircraft descent from cruise altitude at a descent rate which was excessive under the circumstances through clouds and which did not permit the plaintiff’s aircraft to be slowed to the required rate of descent of five hundred feet (500') per minute at one thousand feet (1000') above the assigned altitude of two thousand five hundred feet (2500'). . . .
“[5.] Allegheny . . . failed to exercise ordinary care under all the circumstances in that its crew failed to cause the plaintiff’s aircraft to give way to the Piper Cherokee 140 aircraft which was converging from the right of plaintiff’s aircraft.”

Based upon the foregoing findings the district court concluded that Allegheny violated common law and statutory duties of care which were a proximate cause of its injuries. As the following analysis will demonstrate, we are of the view that the district court’s findings were clearly erroneous and not supported by substantial evidence.

The critical inquiry in resolving the question of Allegheny’s contributory negligence is the distance below the clouds at which the Piper Cherokee aircraft was operating at the time of the collision. Resolution of the other issues as to rate of descent, duty to maintain lookout, and yield right of way are dependent upon the distance that the Cherokee was flying below the clouds. That is, Allegheny’s liability for contributory negligence was directly related to its pilot’s ability to see the other aircraft, assess the situation, and take any necessary evasive action to avoid collision.

The district judge made no specific findings as to the altitude of the cloud formations or the altitude of the collision. However, he did enter the general finding that the collision occurred five hundred feet below the base of the clouds. The evidence appears certain, and the parties are agreed, that the collision altitude was approximately 3600 feet MSL. Inferentially therefore, the district judge found that the altitude of the clouds at the collision site was at a minimum of 4100 feet MSL. Without belaboring the point, Allegheny has produced an. abundance of evidence to the effect that the altitude of the clouds at the collision site ranged between 3000 to 3900 feet MSL. Allegheny's evidence is persuasive that the Piper Cherokee aircraft piloted by Carey was closer to the clouds than the required distance of 500 feet and that the collision occurred less that 500 feet below the clouds if indeed it did not in fact occur in the clouds. Defendants urge that even in the face of this evidence, which is highly supportive of Allegheny’s contention, the district court’s finding was proper in view of the following evidence: A weather observation taken at Weir Cook Airport eleven minutes after the collision which placed the base of the clouds above the Indianapolis airport at 4197 feet MSL; the testimony of Allegheny’s witnesses Robert F. Johannesen and Charles Bradley was to the effect that there was a layer of clouds extending at uniform height from Weir Cook Airport to the site of the accident. Although Johannesen and Bradley both testified to the uniformity of the cloud base they also testified that the cloud base was between 3500 to 3900 feet MSL. Moreover, Johannesen’s observation about the uniformity of the cloud base was made thirty to forty minutes before the accident while Bradley’s was made thirty to forty minutes after the collision. The 4197 foot cloud base measured at Weir Cook Airport eleven minutes after the accident was part of a weather formation drifting southeasternly toward the accident site which was some twenty nautical miles away and as such was part of a clearing in the weather coming from the northwest, while the worst weather was to the southeast at Bakalar. In our judgment the evidence emphasized by defendants cannot reasonably support the inference that at the time and place of the accident, twenty nautical miles southeast of Weir Cook Airport and eleven minutes before the weather observation at Weir Cook, the clouds above the accident site were at 4197 feet MSL. We do not think this evidence is of such persuasion as to avoid a determination that the court’s finding was clearly erroneous.

Having overturned the district court’s implicit finding as to the altitude of the clouds, we necessarily must set aside the court’s findings as to Allegheny’s duty to maintain a lookout and duty to yield right of way. We do so in light of the fact that an integral element to determining a breach of duty of lookout or failure to yield right of way is whether the Allegheny crew could have seen the Piper Cherokee in a reasonable time to avoid the collision. Most assuredly, if the Piper Cherokee was flying in the clouds at the time of the collision, so that little opportunity existed for Allegheny to see the other aircraft, defendants would be hard pressed to prevail on their affirmative defenses of failure to maintain lookout and yield right of way. Accordingly, findings on these issues are directly dependent on ascertaining the distance between the collision and the base of the clouds.

We must also set aside the district court’s findings with respect to Allegheny’s rate of descent through the clouds for these findings are likewise controlled by, albeit indirectly, the finding of the altitude of the clouds at the time of the collision and the Piper Cherokee's distance therefrom. Even assuming that Allegheny’s rate of descent was excessive under the circumstances, it might be established at a full trial that the Piper Cherokee was flying so near to the base of the clouds that, even if the Allegheny pilot had descended at a lesser and more appropriate rate, he would, nevertheless not have had a reasonable time to see ' and react to the presence of the Piper Cherokee. Stated otherwise, based on findings of the altitude of the collision and cloud base, it might be established that Allegheny’s alleged excessive rate of descent was not the proximate cause of its injuries.

In addition, we set aside, on an independent ground, the district court’s finding as to the allegedly negligent nature of Allegheny’s descent. There is no evidence in the record that substantiates the finding that Allegheny engaged in an excessive rate of descent. Indeed, the court’s holding is contrary to the stipulation of the parties, the uncontradicted testimony as to the custom and practice in the aviation industry, and is contrary to the descent rate procedures recommended by the Federal Aviation Administration. Moreover, we agree with Allegheny that in determining whether the descent rate was excessive under the circumstances, it may appropriately be considered that Allegheny had a right to rely on controller Mc-Cammack properly performing his duties and advising the Allegheny crew of the presence of any small aircraft in their path. Likewise, an assessment of Allegheny’s rate of descent must take into consideration that the Allegheny pilot need not have anticipated that the Piper Cherokee was being operated less than 500 feet from the base of the clouds in violation of VFR regulations.

Accordingly, for the foregoing reasons we hold that the district court erred in granting the Rule 41(b) motion to dismiss entered in favor of the United States. In so doing we must also hold as erroneous the grants of summary judgment entered in favor of Forth and the estate of Carey on the basis of collateral estoppel.

Ill

The district court, on defendants’ motion, dismissed GECC as a party plaintiff on the basis that it was not a real party in interest. GECC was the owner of one of the engines mounted on the Allegheny aircraft destroyed in the collision which it leased to Allegheny. As part of that leasing arrangement it was agreed that in the event of loss, GECC could demand a replacement engine from Allegheny. Pursuant to that provision, GECC did in fact receive a replacement engine from Allegheny. To the extent GECC received insurance proceeds due to the destruction of its engine, Allegheny and GECC entered into an agreement whereby GECC agreed to deposit the insurance proceeds in an escrow account pending delivery of the replacement engine.

The defendants in effect contend that since GECC obtained a replacement engine from Allegheny, GECC sustained no loss and was not therefore the real party in interest. Defendants’ argument runs contrary to the collateral source rule which provides that compensation for loss which is received by a plaintiff from a collateral source independent of the wrongdoer cannot be utilized by the wrongdoer in mitigation of damages. See, e. g., Powers v. Ellis, 231 Ind. 273, 108 N.E.2d 132, 135 (1952); Mason-Rust v. Laborers’ International Union, Local 42, 435 F.2d 939, 945 (8th Cir. 1970).

The lease agreement between Allegheny and GECC was designed for the protection of GECC and not intended as. a financial outlet for tortfeasors responsible for the loss. The purpose of the lease agreement is consonant with the purpose of the collateral source rule which is to prevent a defendant tortfeasor from taking advantage of efforts made by a plaintiff to protect himself from loss. Moreover, the collateral source rule rests on the premise that the tortfeasor is not to be punished twice for the identical, singular wrong. In view of the allegations of the complaint, made jointly by Allegheny and GECC, defendants would not be subject to future or multiple claims for loss of the engine. Accordingly, we hold that GECC was a real party in interest and that it was error for the district court to dismiss it from the action as party plaintiff.

IV

Plaintiffs challenge the propriety of the district court’s grant of a directed verdict in favor of Brookside Corporation, the parent and one hundred percent stock owner of Forth Corporation. Plaintiffs urge that Brookside had so dominated and controlled Forth that the latter had become an instrumentality of Brookside. Plaintiffs therefore contend that Brookside was properly charged with liability for the alleged torts of its subsidiary corporation. In our judgment the evidence, when viewed in the light most favorable to plaintiffs, is supportive of but one inference, namely, Forth Corporation was not a mere instrumentality of Brookside.

As we have indicated in our opinion in Steven v. Roscoe Turner Aeronautical Corp., 324 F.2d 157 (7th Cir. 1963) a “ ‘parent corporation will be responsible for the obligations of its subsidiary when . . . the subsidiary has become its mere instrumentality.’ ” 324 F.2d at 160. In establishing the fact that a subsidiary is a mere instrumentality of its parent, we stated that the following elements must be proved: (1) control by the parent to such a degree that the subsidiary has become its mere instrumentality; (2) fraud or wrong by the parent through its subsidiary; and (3) an unjust loss or injury to the claimant. 324 F.2d at 160. We need not reach elements .two and three for plaintiffs’ case fails on the first element.

In ascertaining whether the requisite degree of control by the parent corporation is present so as to warrant a finding favorable to plaintiffs on the first element, we have considered the evidence as it relates to the presence or absence of the following factors:

“(a) The parent corporation owns all or most of the capital stock of the subsidiary.
“(b) The parent and subsidiary corporations have common directors or officers.
“(c) The parent corporation finances the subsidiary.
“(d) The parent corporation subscribes to all the capital stock of the subsidiary or otherwise causes its incorporation.
“(e) The subsidiary has grossly inadequate capital.
“(f) The parent corporation pays the salaries and other expenses or losses of the subsidiary.
“(g) The subsidiary has substantially no business except with the parent corporation or no assets except those conveyed to it by the parent corporation.
“(h) In the papers of the parent corporation or in the statements of its officers, the subsidiary is described as a department or division of the parent corporation, or its business or financial responsibility is referred to as the parent corporation’s own.
“(i) The parent corporation uses the property of the subsidiary as its own.
“(j) The directors or executives of the subsidiary do not act independently in the interest of the subsidiary but take their orders from the parent corporation in the latter’s interest.
“(k) The formal legal requirements of the subsidiary are not observed.” 324 F.2d at 161.

The evidence demonstrates among other things that Forth was adequately capitalized and was engaging in business entirely dissimilar and disassociated with that of its parent (Brookside manufactured industrial fans); there was general adherence to the corporate formalities; Brookside’s business with Forth amounted to only one percent of Forth’s total business. There is no compelling evidence that Forth as a corporate entity had been reduced to a mere instrument of the parent. Indeed the evidence reflects that at the time of the collision Forth was, although a young organization, a viable independent corporation. To the extent control was exercised by the parent corporation, it was in our judgment no more than what might be expected as necessary for' the proper protection of an investment. Accordingly, we affirm the district court’s grant of a directed verdict in favor of Brook-side.

V

Plaintiffs challenge as erroneous the following rulings by the trial judge: (1) the district court directed a verdict in favor of Forth on plaintiffs’ specification of negligence that Forth was responsible for the negligent acts of Robert W. Carey by reason of the fact that Carey and Forth were engaged in a joint enterprise; (2) the district court struck from plaintiffs’ complaint various allegations of negligence which asserted that Forth was responsible for the negligent acts of Carey pursuant to Burns’ Indiana Statutes, §§ 14-901, 14-106 and 14-109, IC 1971, 8-21-3-1, 8-21-4-5, 8-21-4-8, (3) the district court directed a verdict in favor of Carey’s estate on plaintiffs’ specification of negligence that Carey failed to properly plan his flight in that the planned route crossed the descent area utilized by IFR aircraft landing at Weir Cook Airport; and (4) the district court directed a verdict in favor of Forth on plaintiffs’ specification of negligence that Forth improperly trained Carey.

With respect to plaintiffs’ claim that Carey and Forth were engaging in a joint enterprise, we are of the opinion that plaintiffs had made out a prima facie case warranting submission to the jury. The essential elements of a joint enterprise are: (1) A community of interest in the object and purpose of the undertaking; (2) an equal right to direct and govern the conduct of the other participant in respect thereto; and (3) a contract, either express or implied, to that effect. Jones v. Hernandez, 148 Ind.App. 17, 263 N.E.2d 759, 763 (1970). The evidence establishes that Forth and Carey had undertaken a joint enterprise with the objective of obtaining Carey’s private pilot’s license and that the specific flight resulting in the mid-air collision involved the joint efforts of both in furtherance of their common goal. As to the “community of interest in the object or purpose” requirement, both Carey and Forth were seeking the common objective of obtaining a private pilot’s license for Carey. Carey’s interest was obvious, his personal convenience and to satisfy his desire to learn to fly. Forth’s interest in Carey’s success was reflected in the additional business to be derived from Carey as a pilot and other potential pilots who might be drawn to Brookside for training. More important, however, was the fact that Forth’s existence as a flight school depended in part on the success of Carey and other student pilots like him in obtaining their private pilot’s license on their first attempt. See 14 C.F.R. § 141.11(a)(1). With regard to the second requirement that there be “an equal right to direct and govern the conduct of the other,” Carey had control over the goal of obtaining his private pilot’s license in that he alone had the power to determine his rate of progress by the frequency and timing of his flying. Forth had control over Carey which emanated from the instructor-student relationship. In addition, Forth was under an affirmative obligation under the federal air regulations to supervise and control all facets of Carey’s training. Moreover, in view of the hazardous nature of Carey’s undertaking and his status as a student pilot, we reject any notion which urges that equal control can be established only by a showing of joint presence of the parties at the time of the alleged wrongdoing. Both Carey and Forth had equal control over the attainment of the common objective of securing Carey’s private pilot license. The last element of a joint enterprise, “a contract, express or implied” is sufficiently established on the basis of the actions of the parties as well as the express agreements entered into between Forth and Carey.

Addressing plaintiffs’ second contention of trial court error we agree that it was improper for the district judge to strike those allegations of plaintiffs’ complaint charging Forth with the legal responsibility of Carey’s alleged negligence pursuant to Burns’ Indiana Statutes §§ 14-901, 14-106 and 14-109. A fair reading of sections 14-901(h) and 14-109 charges the absentee owner with the responsibility for the careless and reckless operation of his aircraft by another. While no Indiana cases have interpreted these sections, we note that virtually identical sections in aeronautical statutes of other states have been interpreted to impose liability upon the absentee owner. Hays v. Morgan, 221 F.2d 481 (5th Cir. 1955); Lamasters v. Snodgrass, 248 Iowa 1377, 85 N.W.2d 622 (1957); Hoebee v. Howe, 98 N.H. 168, 97 A.2d 223 (1952). We find the foregoing decisions persuasive and agree with plaintiffs that if the Indiana courts had occasion to confront this issue, they would properly interpret sections 14-901 (h) and 14-109 as holding the absentee owner financially responsible for the negligent acts of a student pilot to whom he had granted the use of his aircraft. Ross v. Apple, 143 Ind. App. 357, 240 N.E.2d 825, rehearing denied 241 N.E.2d 872 (Ind.App.1968).

Lastly, we treat together plaintiffs’ challenges to the directed verdicts granted in favor of the estate of Carey and Forth which dealt with certain of plaintiffs’ specifications of negligence. Plaintiffs had contended Carey was negligent in planning his flight through the descent area utilized by IFR aircraft landing at Weir Cook Airport. They also claimed that Forth improperly instructed Carey as to various pertinent aspects of flying. On the evidence before us these matters should have been submitted to the jury for determination and not disposed of by way of a directed verdict.

The judgment in favor of Brookside Corporation is affirmed.

The judgments in favor of the remaining defendants are reversed and the causes are remanded for a new trial under the provisions of Circuit Rule 23.

      . The district court entered judgment- for the United States pursuant to Rule 41(b) of the Federal Rules of Civil Procedure, which provides in relevant part:
      After the plaintiff, in an action tried by tire court without .a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the jdaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in Rule 52(a).
      It is provided in Rule 52(a) that:
      (a) Effect. In all actions tried upon the facts without a jury . . . the court shall find the facts specially and state separately its conclusions of law thereon. . . . Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.

      . Without recounting the testimony of the numerous witnesses and experts produced by plaintiffs, we only note that there was substantial evidence favorable to plaintiffs as to the altitude of the clouds. In addition, we agree with plaintiffs that the trial court erroneously excluded from the evidence the stipulated interphone conversations between the Indianapolis Approach Control facility and the Bakalar Tower relating to the weather conditions at Bakalar.

      . The parties entered into the following stipulation :
      “It is hereby stipulated and agreed by and between the parties that the rule of conduct in the aviation industry as of September 9, 1969, was as follows:
      “1. During any phase of flight, pilots are required to adhere to the following procedures whenever cleared by ATO to descend or climb to an altitude or flight level.
      “ ‘If an altitude change of more than one thousand feet is required, descend or climb as rapidly as practicable to one thousand feet above or below the assigned altitude and then attempt to descend or climb at a rate of five hundred feet per minute until the assigned altitude is reached.’ ”

      . With respect to the custom and practice of the industry, it was error for the trial judge to exclude the testimony of American Airlines Captain Robert F. Johannesen as to the appropriate rate of descent. Johanne-sen’s testimony as to the appropriate descent rate was highly relevant in that he had flown an American Airlines aircraft in the same area shortly before the accident \vith the same clearance.

      . Although we need not directly pass on the propriety of the district court’s action in implementing the doctrine of collateral estop-pel, we are impelled to say that we strongly disapprove of the procedure utilized. We recognize the oddity of the instant litigation ■ — a simultaneous trial of two actions involving the same facts and issues whereas the judge is trier of fact as to one defendant (the United States)- while the jury is the trier of fact as to the remaining defendants. By entering a judgment on the merits for the Government and then applying the doctrine of collateral estoppel to preclude further action against the remaining defendants, the trial judge substituted his findings for those which should have properly been determined by the jury. Such a procedure, although otherwise proper in form, in substance short circuits plaintiffs’ right to a trial by jury in an action where the evidence is such that it would be most inappropriate to fail to submit the case to the jury by entering a directed verdict. In such circumstances plaintiffs’ right to trial by jury is rendered meaningless. Consequently, we are of the view that the application of the doctrine of collateral estoppel was improper in light of the peculiarities of this case. Radial v. Hill, 435 F.2d 59 (5th Cir. 1970). The Government’s case could be properly decided by the judge while at the same time plaintiffs’ case against the remaining defendants should be submitted to the jury. Moreover, in an effort to avoid inconsistency in verdicts the better practice might be to submit plaintiffs’ case to the jury which would function in two capacities: (1) it would render a verdict as to those defendants other than the Government, and (2) it would act as an advisory jury with respect to plaintiffs’ case against the Government pursuant to the Federal Tort Claims Act.

      . It is provided in section 14-901(h) :
      “(h) Operation of aircraft or operate aircraft — the use of aircraft for the purpose of air navigation, and includes the navigation or piloting of aircraft. Any person who causes or authorizes the operation of aircraft, whether with or without the right of legal control (in the capacity of owner, lessee, or otherwise) of the aircraft, shall be deemed to be engaged in the operation of aircraft within the meaning of the statutes of this state.”
      Section 14-109 states that:
      “ * * * It shall be unlawful for any person to operate an aircraft in the air, or on the ground or water in a careless or reckless manner so as to endanger the life or property of another; or to operate an aircraft in the air, or on the ground or water with reckless disregard for the safety, property, or rights of others. * * * In any proceeding charging careless or reckless operation of aircraft in violation of this section, the court in determining whether the operation was careless or reckless shall consider the standards for safe operation of aircraft prescribed by federal statutes or regulations governing aeronautics.”

       Pursuant to Burns’ Indiana Statute § 14-106 plaintiffs have presented facts sufficient to make out a case of negligent entrustment by Forth. Accordingly, this is a matter which should properly be submitted to the jury.


source: Caselaw Access Project

author: WILLIAM E. DOYLE, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellant, v. Mary AKIN et al., Defendants-Appellees.
    No. 73-1807.
    United States Court of Appeals, Tenth Circuit.
    Submitted Aug. 19, 1974.
    Decided Oct. 2, 1974.
    Rehearing Denied Nov. 12, 1974.

      Walter Kiechel, Jr., Deputy Asst. Atty. Gen. (Wallace H. Johnson, Asst. Atty. Gen., and Edmund B. Clark, Donald W. Redd, and Lawrence E. Shearer, Attys., Dept, of Justice, Washington, D. C., on the brief), for plaintiff-appellant.
    John E. Bush, Deputy Atty. Gen. (John P. Moore, Atty. Gen., Clyde 0. Martz, Raphael J. Moses, and James D. Geissinger, Special Asst. Attys. Gen., on the brief), for defendants-appellees The State Board of Agriculture and The Colorado Game and Fish Commission (Colorado Wildlife Commission and Colorado Board of Parks and Outdoor Recreation).
    L. W. McDaniel, Durango, Colo., on the brief for defendant-appellee Southwestern Water Conservancy District.
    Fairfield & Woods and Ireland, Sta-pleton, Pryor & Holmes, P. C., Denver, Colo., on the brief, for defendant-appel-lee Mancos Water Conservancy District.
    Fairfield & Woods, Denver, Colo., on the brief for defendant-appellee Southeastern Colorado Water Conservancy District.
    Kenneth Balcomb, Glenwood Springs, Colo., for intervenor-appellee Colorado River Water Conservation District.
    Thomas W. Fredericks, David H. Getches and Robert S. Pelcyger, Attys., Native American Rights Fund, Boulder, Colo., on the brief of amici curiae Southern Ute Indian Tribe, Ute Mountain Ute Indian Tribe and National Tribal Chairmen’s Association.
    George L. Zoellner, Kenneth L. Broad-hurst, Glenn Saunders, Special Counsel and Jack Ross, Special Counsel, Denver, Colo., on the brief, for defendant-appel-lee City and County of Denver, acting by and through its Board of Water Commissioners.
    Before HILL and DOYLE, Circuit Judges, and TALBOT SMITH , District Judge.

       Honorable Talbot Smith, United States District Judge, Ann Arbor, Michigan, sitting by designation.

   WILLIAM E. DOYLE, Circuit Judge.

The questions presented in this appeal are, first, whether or not the District Court had jurisdiction to entertain this action which was instituted by the United States on its own behalf and on behalf of certain Indian tribes, or, secondly, assuming that the District Court had jurisdiction, whether the court should have abstained.

This is a water rights case which was instituted by the United States in the United States District Court for the District of Colorado. The action was brought on behalf of the United States and on behalf of the Ute Mountain and Southern Ute Indian Tribes on November 14, 1972. It sought the adjudication of all water rights held by the United States in its own right and as trustee for the Ute Mountain and Southern Ute Indian Tribes in the San Juan Basin but, particularly, adjudication of all of its reserved rights in the San Juan River of Colorado. There are approximately 1200 named defendants.

The reserved rights asserted by the United States consist of those used in connection with Mesa Verde National Park, the Yucca House National Monument, the Hovenweep National Monument, Bureau of Reclamation projects within the State of Colorado and lands reserved by the United States in Colorado. On behalf of the Indian tribes the United States claims further reserved rights for use of the Ute Mountain Ute Tribe and the Southern Utes on their reservations. The Colorado River Water Conservation District intervened as a defendant for the purpose of filing a motion to dismiss. Other intervenors followed including the Southeastern Colorado Water Conservancy District and' the Board of Water Commissioners, City and County of Denver.

A subsequent suit was filed on January 3, 1973 in State Court by the Man-cos Water Conservation District and the Southeastern Colorado Water Conservancy District embracing similar subject matter. In this action the plaintiffs sought judicial determination of the identical water rights which the United States sought to have adjudicated. The United States was joined as a defendant in the state action pursuant to the so-called McCarran Amendment, 43 U.S.C. § 666, which allows a joinder of the United States in such a suit in state court.

The United States District Court’s dismissal of the action was on the ground of the abstention doctrine and for reasons of “comity.” In effect, therefore, the court’s assumption was that it had jurisdiction.

Thus, the primary issue is whether the trial court erred in its decision to abstain. Inasmuch as the defendants-appellees also contend that the District Court lacked jurisdiction to hear the case, we shall take up that issue also.

I.

THE JURISDICTION QUESTION

The United States has alleged that jurisdiction in District Court was conferred by 28 U.S.C. § 1345 which gives to district courts original jurisdiction of all civil actions commenced by the United States except as otherwise provided.

The Colorado River Water Conservation District takes the position that 43 U.S.C. § 666, the McCarran Amendment, which gives consent to joinder of the United States “in any suit for the adjudication of rights to the use of water,” etc., not only gives a state court jurisdiction over the United States, it also, according to their further argument, excludes federal courts from assuming jurisdiction. We disagree.

The starting point in this analysis is Article III of the United States Constitution which extends the judicial power to controversies to which the United States shall be a party. Although this provision is not self-implementing, it does evidence the intention of the Framers to allow the United States to sue in its own courts. The statute, § 1345, su pra, confirms this right of the United States

The rationale for the right of the United States to sue in federal court is expressed by Mr. Justice Story in his work, Story, The Constitution § 1674:

It would be a perfect novelty in the history of national jurisprudence, as well as of public law, that a sovereign had no authority to sue in his own courts. Unless this power were given to the United States, the enforcement of all their rights, powers, contracts and privileges in their sovereign capacity would be at the mercy of the states.

The right was recognized from the earliest days in our history. The Judiciary Act of 1789 gave the district courts jurisdiction concurrent with that of the state courts “of all suits at common law where the United States shall sue.” This Act also gave the circuit courts jurisdiction “of all suits of a civil nature at common law or in equity,” subject to a jurisdictional amount. The clear right of the United States to maintain actions asserting proprietary rights is discussed in H. M. Hart & H. Wechsler, The Federal Courts and The Federal System (2d ed. 1973), at 1301-09. The authors cite Cotton v. United States, 11 How. 229, 13 L.Ed. 675 (1850) as an example of the right of the United States to bring an action even without an authorizing statute. That was a trespass case.

With respect to the cases in which the government asserts a proprietary right, the authors say:

The most striking recent examples of the assertion of proprietary rights of the United States, illustrating the magnitude of the interests that may be involved, were the much-disputed tidelands cases. Compare the motion of the United States for leave to intervene in Nebraska v. Wyoming, 304 U.S. 545 [58 S.Ct. 1035, 82 L.Ed. 1519] (1938). See Comment, Federal Ownership of Inland Waters: The Fallbrook Case, 31 Tex.L.Rev. 404 (1953). See also the cases growing out of the oil scandals of the Harding administration. Pan American Petroleum & Transport Co. v. United States, 273 U.S. 456 [47 S.Ct. 416, 71 L.Ed. 734] (1927); Mammoth Oil Co. v. United States, 275 U.S. 13 [48 S.Ct. 1, 72 L.Ed. 137] (1927).
Closely related to the proprietary cases are those in which the United States has established its status as guardian of the Indian tribes and its standing in litigation to vindicate Indian rights. See, e. g., Heckman v. United States, 224 U.S. 413 [32 S.Ct. 424, 56 L.Ed. 820] (1912); United States v. Board of Comm’rs of Osage County, 251 U.S. 128 [40 S.Ct. 100, 64 L.Ed. 184] (1919); Cummings & McFarland, Federal Justice 250-317, 384-413 (1937).

H. M. Hart & H. Wechsler, The Federal Courts and The Federal System (2d ed. 1973), at 1302.

The McCarran Amendment does not express an intention that the United States shall utilize state courts for the purpose of litigating its claims to water. It is said by appellees that the original language of the Amendment contained a proviso which allowed the United States to remove to federal court any action in which it was a defendant within the scope of the waiver of sovereign immunity contained in the Amendment. The argument continues that since Congress dropped this proviso it follows that Congress intended to deprive the United States of its right to sue under § 1345. We disagree with the conclusion drawn. The McCarran Amendment merely allowed the United States to be joined in a state action in a case in which the United States owns water rights and is a necessary party to the suit. However, this falls short of furnishing by implication a repeal of § 1345 applicable to water cases. The Amendment’s purpose was to permit complete adjudication in a state court action and to prevent frustration of the parties because, of inability to obtain jurisdiction over the United States. So, elimination of the removal proviso originally in the Amendment at most expressed congressional intent that where the United States is joined under the circumstances set forth in the Amendment it will not be allowed to frustrate the procedures in the state court. But the statute did not prohibit the United States from ever removing a water rights case to the federal court. If Congress had intended to force the United States to litigate its water cases in state courts, it could have done so by creating a water rights exception to § 1345. This it did not do either expressly or impliedly.

The decisions in United States v. District Court, County of Eagle, Colorado, 401 U.S. 520, 525, 91 S.Ct. 998, 28 L.Ed.2d 278 (1971) and United States v. District Court, Water Division No. 5, Colo., 401 U.S. 527, 91 S.Ct. 1003, 28 L.Ed. 2d 284 (1971) do not support the appellees in their present contentions. The issue in both of these was whether the consent to suit of the United States by provision of the McCarran Amendment extended to reserved rights. The Supreme Court held that the Amendment did include this type of right and it followed that the United States could be joined as a defendant in a state water rights proceeding. But by so holding the Court did not impliedly say that the United States was prohibited from litigating its reserved water rights as a plaintiff in federal court. At most, it held that the McCarran Amendment authorized a concurrent jurisdiction with state courts to try federal water rights cases — concurrent with the jurisdiction of the federal courts under § 1345, supra. This is far different from appellees’ position that the Amendment prohibits the United States’ litigation of these rights in federal court.

Nor does the decision of the United States District Court for the District of Utah in In re Green River Drainage Area, 147 F.Supp. 127 (D.Utah 1956) support appellees. This was a removal problem wherein the court held that the United States cannot automatically remove its water rights cases to federal court. The court conceded that the McCarran Amendment does not preclude such removal if it would otherwise be removable.

The Supreme Court in Dugan v. Rank, 372 U.S. 609, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963) considered a situation in which the United States was joined as a defendant in a private suit to determine water rights solely between certain private claimants and the United States. The Court' held that the McCarran Amendment was not intended to apply to a private suit between the United States and a private party to determine conflicting water rights contentions.

We must then reject the notion that the McCarran Amendment partially repealed or modified § 1345, supra. This conclusion suggests that § 666 has a very limited coverage and is perhaps only procedural. It permits, but does not necessarily require, the United States being subjected to state jurisdiction.

II.

THE ABSTENTION QUESTION

Having concluded that the United States District Court’s jurisdiction was unimpaired, the issue remains whether, considering the character of the case, the District Court was correct in its abstention stance. The Conservation Districts together with the Board of Water Commissioners, State Board of Agriculture and the Colorado Game and Fish Commission assert, of course, that abstention was proper. The United States complains that the court’s action was erroneous.

It has been recognized from very early times that federal courts are not to decline the exercise of expressly granted jurisdiction. This principle was first expressed by Mr. Chief Justice Marshall in Cohens v. Virginia, 6 Wheat. 264, 404, 5 L.Ed. 257 (1821). This oft-repeated statement was that “We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given.” On its face this concept conflicts with the abstention principle which is that federal courts in the exercise of a wise discretion are to restrain their authority because of scrupulous regard for the rightful independence of the state governments and for the smooth working of the Federal Judiciary. Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941).

A. Guidelines

It is, of course, fundamental that the doctrine of abstention is to be applied in narrowly limited special circumstances. See Zwickler v. Koota, 389 U.S. 241, 248, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967) (citing Propper v. Clark, 337 U.S. 472, 492, 69 S.Ct. 1333, 93 L.Ed. 1480 (1949)). See also Lindsey v. Normet, 405 U.S. 56, 92 S.Ct. 862, 31 L.Ed.2d 36 (1972); County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 79 S. Ct. 1060, 3 L.Ed.2d 1163 (1959); Meredith v. City of Winter Haven, 320 U. S. 228, 64 S.Ct. 7, 88 L.Ed. 9 (1943).

B. Applicable Areas

1. The Supreme Court placed it in perspective when it said that it is an extraordinarily narrow exception to the rule that a federal court has a duty to adjudicate a controversy presented to it over which it has jurisdiction. See County of Allegheny v. Frank Mashuda Co., supra, and see Meredith v. City of Winter Haven, supra. It is within this narrow scope that we examine the various cases which have applied the abstention principle.

One facet of the abstention doctrine is that which seeks to give a state court full opportunity to dispose of a case which is potentially governed by state law before entertaining it and deciding it as a constitutional law question. See Railroad Commission of Texas v. Pullman Company, supra, a case in which the parties being regulated sought an injunction against enforcement of an order of the state regulatory agency.

Ours is not a ease which presents constitutional questions and state questions, both of which show capability for disposing of the case whereby the state decision could obviate the necessity for a constitutional law decision.

2. A second abstention category is exemplified in Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943), which holds that federal courts are not to interfere with state regulatory schemes; that they are to refrain from anticipating a constitutional question and interfering with the state regulatory agency when it is engaged in administering state law. .See Alabama Public Service Comm. v. Southern Ry. Co., 341 U.S. 341, 71 S.Ct. 762, 95 L.Ed. 1002 (1951) ; Hawks v. Hamill, 288 U.S. 52, 53 S.Ct. 240, 77 L.Ed. 610 (1933); 1A J. Moore, Moore’s Federal Practice § 0.203 [1]; C. Wright, Law of Federal Courts 200 (2d ed. 1970).

Here the federal court is not short-circuiting or interfering with efforts of a state administrative regulatory system, whereby the Burford rule could operate.

3. A further recent application of abstention is in cases in which a novel and important issue of state law is presented. See Kaiser Steel Corp. v. W. S. Ranch Co., 391 U.S. 593, 88 S.Ct. 1753, 20 L.Ed.2d 835 (1968). Kaiser was a New Mexico eminent domain and water case. It concerned alleged inconsistency between a New Mexico statute and the New Mexico Constitution. Based on the fact that this was a novel and highly important question for the State of New Mexico, it was ruled that abstention was there appropriate. This holding was not dissimilar from Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25, 79 S.Ct. 1070, 3 L.Ed.2d 1058 (1959). Compare County of Allegheny v. Frank Mashuda Co., supra. The fact, however, that both Kaiser and our case involve water rights does not render Kaiser determinative.

C. The Race to the Courthouse

The Colorado litigants also argue strenuously that this cause must not be determined by who wins the race to the courthouse. This is a recurring contention in cases in which state and federal courts have concurrent jurisdiction over a property case. True, the race idea has no intrinsic attractiveness. At the same time, it must be recognized that priority of filing has validity in the situation in which concurrent jurisdiction exists. The priority of the court which first acquires jurisdiction over the subject matter is entitled to recognition, and where the plaintiff has selected the forum and has filed first, his right to try his case in that court is not to be lightly dismissed.

The priority principle is held to apply where a federal and state court have concurrent jurisdiction and the action is in rem. See Penn General Casualty Co. v. Pennsylvania, 294 U.S. 189, 55 S. Ct. 386, 79 L.Ed. 850 (1935); Kline v. Burke Constr. Co., 260 U.S. 226, 43 S.Ct. 79, 67 L.Ed. 226 (1922); Palmer v. Texas, 212 U.S. 118, 29 S.Ct. 230, 53 L.Ed. 435 (1909); Byers v. McAuley, 149 U.S. 608, 13 S.Ct. 906, 37 L.Ed. 867 (1893); Gay v. Brierfield Coal & I. Co., 94 Ala. 303, 11 So. 353 (1891); Crosby v. Spear, 98 Me. 542, 57 A. 881 (1904) ; Rogers & B. Hardware Co. v. Cleveland Bldg. Co., 132 Mo. 442, 34 S.W. 57 (1896); 20 Am.Jur.2d, Vol. 20 § 135, p. 485. And so the priority factor is entitled to be weighed in the abstention scale.

D. Effect on Abstention of United States as Plaintiff

We next consider (on the decision to abstain) the effect of the presence of the United States as a party plaintiff in the action. There is a dearth of authoritative case law bearing directly on the point. The most helpful decision is that of the Supreme Court in Leiter Minerals v. United States, 352 U.S. 220, 77 S.Ct. 287, 1 L.Ed.2d 267 (1957). The essential issue in that case was whether the United States owned minerals on lands, the surface of which it owned. A private party had claimed the minerals in a state court action against the lessee of the United States. Thereupon, the United States filed an action in the United States District Court for the Eastern District of Louisiana. It sought to quiet title and to enjoin the adverse claimant in state court from prosecuting its action. The section of the Judicial Code which prohibits injunctions against State Court actions, 22 U.S.C. § 2283, was interposed. But the Supreme Court held that it was inapplicable to the United States when it was the suitor. In reaching this result the statute was ruled to be ambiguous and not susceptible to imputing congressional intent to make it applicable to the United States. The Court went on to hold that it was proper for the District Court to entertain the suit in the federal court . . and to prevent the effectuation of state court proceedings that might conflict with the ultimate federal court judgment.” The Court’s prior decision in United States v. Bank of New York & Trust Co., 296 U.S. 463, 56 S.Ct. 343, 80 L.Ed. 331 (1936) in which an injunction had been denied, notwithstanding the presence of the United States as a party, was distinguished on its facts. There, it was pointed out, the United States was one of many claimants to a fund and was not different from any other litigant. However, in treating the United States differently in Leiter it was emphasized that the policy (of exempting the United States from the anti-injunction statute) is more compelling where the United States seeks to advance a national interest.

The presence of the United States as a plaintiff seeking to establish rights which have a national and sovereign character is then a factor which militates strongly against the applicability of abstention.

Finally, counsel for the appellees urge that the Supreme Court’s decision in United States v. District Ct., County of Eagle, Colo., 401 U.S. 520, 91 S.Ct. 998, 28 L.Ed.2d 278 (1971) justifies the trial court’s decision to abstain. We have carefully considered this case and we are of the view that it does not consider the problem which is presented in the case at bar. The United States there sought through writ of prohibition in the Colorado Supreme Court to prevent the District Court for Eagle County, Colorado from asserting jurisdiction over it. This effort failed, but this case did not suggest a lack of jurisdiction of the federal district court in a suit instituted by the United States. Nor did it hold that the state court by virtue of § 666 had exclusive jurisdiction. Further, it did not hold nor even suggest that abstention by a federal court, the jurisdiction of which had been invoked, should be ordered.

The judgment of the District Court is reversed and the cause is remanded for further proceedings consistent with the views expressed herein.

       It has been called to our attention in an informal letter from one of the attorneys for defendants-appellees that this statement is incorrect. It is said that on that date Southwestern Colorado Water Conservation District filed a motion for the joinder of the United States under the McCarran Act. The record does not reveal the true fact. We note the suggested correction, even though it is not outcome determinative.

      . The full text of this section reads as follows :
      Consent is given to join the United States as a defendant in any suit (1) for the adjudication of rights to the use of water of a river system or other source, or (2) for the administration of such rights, where it appears that the United States is the owner of or is in the process of acquiring water rights by appropriation under State law, by purchase, by exchange, or otherwise, and the United States is a necessary party to such suit. The United States, when a. party to any such suit, shall (1) be deemed to have waived any right to plead that the State laws are inapplicable or that the United States is not amenable thereto by reason of its sovereignty, and (2) shall be subject to the judgments, orders, and decrees of the court having jurisdiction, and may obtain review thereof, in the same manner and to the same extent as a private individual under like circumstances : Provided, That no judgment for costs shall be entered against the United States in any such suit.

      . Section 1345, supra, provides :
      § 1345. United States as plaintiff
      Except as otherwise provided by Act of Congress, the district courts shall have original jurisdiction of all civil actions, suits or proceedings commenced by the United States, or by any agency or officer thereof expressly authorized to sue by Act of Congress.

      . Senator McCarran himself stated that:
      S. 18 is not intended . . . to be used for any other purpose than to allow the United States to be joined in a suit wherein it is necessary to adjudicate all of the rights of various owners on a given stream. This is so because unless all of the parties owning or in the process of acquiring water rights on a particular stream can be joined as' parties defendant, any subsequent decree would be of little value.
      S.Rep.No. 755, 82d Cong., 1st Sess., at 9. See also United States v. District Court, County of Eagle, Colorado, 401 U.S. 520, 525, 91 S.Ct. 998, 28 L.Ed.2d 278 (1971) ; Dugan v. Rank, 372 U.S. 609, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963) ; Nevada ex rel. Sham-berger v. United States, 279 F.2d 699 (9th Cir. 1960).

      . The reasoning of the Court was :
      There is, however, a persuasive reason why the federal court’s power to stay state court proceedings might have been restricted when a private party was seeking the stay but not when the United States was seeking similar relief. The statute is designed to prevent conflict between federal and state courts. This policy is much more compelling when it is the litigation of private parties which threatens to draw the two judicial systems into conflict than ■when it is the United States which seeks a stay to prevent threatened irreparable injury to a national interest. The frustration of superior federal interests that would ensue from precluding the Federal Government from obtaining a stay of state court proceedings except under the severe restrictions of 28 U.S.C. § 2283, 28 U.S. C.A. § 2283, would be so great that we cannot reasonably impute such a purpose to Congress from the general language of 28 U.S.C. § 2283, 28 U.S.C.A. § 2283, alone.
      352 U.S. at 225-226, 77 S.Ct. at 290-291.

      . The opinion distinguishes the situation where the United States is “like any private claimant”:
      Moreover, the Bank of New York case presented the more unusual situation where the United States, like any private claimant, made a claim against funds that it never possessed and that were in the hands of depositaries appointed by the state court. In this case, a private party is seeking by a state proceeding to obtain property currently in the hands of persons holding under the United States; the United States is seeking to protect that possession and quiet title by a federal court proceeding. Therefore, since the position of the United States is essentially a defensive one, we think that it should be permitted to choose the forum in this case, even though the state litigation has the elements of an action characterized as quasi in rem. We therefore hold that the District Court properly exercised its jurisdiction to entertain the suit in the federal court and to prevent the effectuation of state court proceedings that might conflict with the ultimate federal court judgment.
      352 U.S. at 227-228, 77 S.Ct. at 292.

      . The Court was careful to note that reserved water rights of the United States “are federal questions which, if preserved, can be reviewed here after final judgment by the Colorado court.” 401 U.S. at 526, 91 S.Ct. at 1003.


author: ENRIGHT, District Judge:

text:
    UNITED STATES of America, Appellee, v. Mike ABBAS, Appellant.
    No. 73-3234.
    United States Court of Appeals, Ninth Circuit.
    Oct. 4, 1974.

      Robert H. Wyshak (argued), of Wy-shak & Wyshak, Los Angeles, Cal., for appellant.
    Arthur W. Vance, Asst. U. S. Atty. (argued), Los Angeles, Cal., for appel-lee.
   OPINION

Before BARNES and HUFSTEDLER, Circuit Judges, and ENRIGHT, District Judge.

ENRIGHT, District Judge:

On March 19, 1973, a twelve count indictment was returned against the defendant by the federal grand jury for the Central District of California.

The indictment charged the defendant in each count with violations of 26 U.S. C. § 7206(2), in that he had willfully assisted in the preparation of false federal income tax returns.

On September 4, 1973, a jury found the defendant guilty as to counts six, eleven, and twelve involving the tax returns of Lucy Vinluan and Leigh and Kimbo Emerson. The defendant was found not guilty as to counts four and five, and the jury could not agree as to the remaining counts which were subsequently dismissed.

The basic issue in this case concerns the government’s preparation and use, as evidence, of a number of allegedly demonstrative charts, summarizing the testimony of the witnesses as to the variation between the sums of money which the witnesses reported to the tax preparer and the amount actually listed on the returns by the preparer. The defense asserts that it was improper to have permitted the jury to receive into evidence what it contends were argumentative and conelusional materials.

The government relies in part upon United States v. Bartone, 400 F.2d 459 (6th Cir. 1968), cert. denied, 393 U. S. 1027, 89 S.Ct. 631, 21 L.Ed.2d 571 (1969) for the proposition that use of such charts has been approved. But even in circumstances where the use of charts is not improper, Bartone held that “it is necessary that the trial judge carefully examine this type of evidence and supporting exhibits, out of hearing of the jury, in order to determine that everything contained in the summary is supported by the proof.” Id. at 461. This was not done and would appear to be the better practice, although the defendant was given ample opportunity over a weekend to examine the charts and thereafter to pursue his specific objections to the court.

But this is not to say that the use of charts is always permitted. Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954) — albeit a case involving a complicated net worth, tax evasion situation — admonished trial courts to be wary of situations in which figures, computations, and charts acquire “an existence of their own, independent of the evidence which gave rise to them.” Id. at 128, 75 S.Ct. at 131.

Lloyd v. United States, 226 F.2d 9 (5th Cir. 1955) amplifies upon Holland. A lengthy citation would not be without some benefit:

The use of this type evidence, however, has inherent dangers to an accused, for a jury is often unfairly and unduly impressed by the apparent authenticity of a government witness’ chart computations, as such, rather than by the truth and accuracy of the underlying facts and figures supporting them. A trial court is charged with grave responsibilities in such instance to insure that an accused is not unjustly convicted in a “trial by charts,” however impressive the array produced. Ordinarily, it would be the better practice, not so carefully observed in this instance, to require that the source of the facts and figures upon which such a chart is based be fully disclosed before its admission into evidence. Whenever possible, such charts should be confined in their preparation to strictly mathematical computations, subject to detailed explanation upon the trial by the testimony of expert government witnesses, and they should not be encumbered by such impressive, conclu-sionary captions as “Overstatement of Merchandise Purchases”, “Overstatement of Delivery Expenses”, “Unreported Cash Receipts of Lloyd’s Bakery”, “Unreported and Undeposited Cash Receipts Invested in United States Savings Bonds”, “Unreported Net Income of Mr. E. C. Lloyd”, “Income Tax Unreported and Unpaid by Mr. Lloyd”, such as were used on the Government charts here in dispute. While a prosecution witness may testify as to such conclusions from his mathematical computations, we think the danger in permitting the unrestricted use of such phrases upon charts results from a jury’s natural ■ tendency to accept such unsworn, con-clusionary verbiage as authentic, primary proof, instead of purely in sum-marization and explanation of sworn testimony or authenticated documentary evidence. Id. at 17.

In general principle, we agree with this reasoning. We would conclude that it would have been better practice for the trial court to have allowed the charts to be marked for identification and used by the foundation witness as a testimonial aid, or, since they purported to represent summarized testimony, to be utilized by counsel in argument as a visual summary of complex facts. In either event, the charts should not have gone to the jury for use during their deliberations. The dangers are apparent. A signed or handwritten statement of a

defendant presents an apt analogy. It would be considered physical evidence and admitted as an exhibit; an unsigned typewritten statement of such defendant in itself is hearsay. It may be read to the jury under certain circumstances; the conversation it represents may be repeated by percipient witnesses; but the unsigned typewritten statement itself would not be received as evidence. The danger inherent in such evidence is that it would act as a speaking, continuous witness throughout the jury’s deliberation of certain specific, isolated —albeit significant — testimony to the exclusion of the totality of the evidence taken at the trial which must be viewed in its entirety.

But if the admission of the charts as exhibits and their presence during jury deliberation was error, we must next weigh whether such error was prejudicial and requires reversal. Our review of the entire record, especially including the counts upon which the defendant was acquitted, convinces us that the error was not prejudicial. In respect to the charts, the trial judge gave the defense an opportunity to cross-examine the witness who testified relative to the charts, to indicate any purported errors in the charts, and to present any similar appropriate demonstrative aids as part of the defense case. In addition, the court indicated he would give a limiting instruction and then thereafter did instruct the jury that the exhibits had been admitted as an explanation of other evidence while the charts were not proof per se; the jury was further instructed that the summaries were presented merely as a matter of convenience and “to the extent that you [the jury] find they are not in truth summaries of facts or figures shown by the evidence in the case you are to disregard them entirely.” The defendant neither objected to the instruction as given nor requested any additional language pertaining to the limiting instruction. Viewed in such perspective, we would hold that the admission of the charts did not prejudicially harm the defendant in the instant circumstances. At oral argument, defense counsel indicated various purported errors on several of the charts. The jury, however, did not convict the defendant of any counts associated with those charts. Counsel noted no errors in the charts coupled to the counts upon which Abbas was convicted.

Brief comment may be made on those other issues worthy of mention.

Defense argues that the items alleged to be false must be material to the computation of the correct tax liability to support a conviction of 26 U.S.C. § 7206(2). Edwards v. United States, 375 F.2d 862, 865 (9th Cir. 1967) belies this contention.

The defendant also asserts that there was insufficient evidence to prove that he was the one that aided and assisted in preparation. He reasons that since several persons within his office would have helped the taxpayers, there was too weak a nexus to him individually. Upon reviewing the transcript, we are satisfied that the evidence was sufficient. Cf. United States v. McKee, 456 F.2d 1049 (6th Cir. 1972), cert. denied, 407 U.S. 910, 92 S.Ct. 2436, 32 L.Ed.2d 684 (1972); United States v. Cramer, 447 F.2d 210 (2d Cir. 1971), cert. denied, 404 U.S. 1024, 92 S.Ct. 680, 30 L.Ed.2d 674 (1972); United States v. Barnes, 313 F.2d 325 (6th Cir. 1963).

The defendant also contends that the trial court improperly instructed the jury in defining “wilfully.” He relies upon United States v. Bishop, 412 U.S. 346, 360, 93 S.Ct. 2008, 2017, 36 L.Ed.2d 941 (1973). A review of Bishop and the precedent upon which it is based, leads us to conclude that defendant’s reliance is misplaced. Courts

have rejected claims that willfulness instructions must include the terms bad purpose or evil motive.
While the use of such terms is often helpful, all that is required are instructions which communicate the proper notion of specific intent in understandable terms. United States v. Hawk, 497 F.2d 365, 368-369 (9th Cir. 1974). As in Hawk, the instructions here were adequate for that purpose.

Finally, we may address the defendant’s suggestion that the trial court improperly interjected himself by rehabilitating a government witness. In his cross-examination of the witness, defense counsel pressed the witness, attempting to demonstrate her bias because of the failure of a romance between the defendant and herself. Under the stress of the cross-examination, the witness lost her composure. At this point, the court interposed and questioned the witness to assure the jury and himself that her answers reflected truth and not prejudice. The trial court’s interruption of cross-examination is always a matter of great delicacy, particularly in a jury trial. Due to the considerable discretion permitted to the trial judge in such matters, we cannot say the court abused its discretion in his inquiry.

Affirmed.

       The Honorable William B. Enright, United States District Judge for the Southern District of California, sitting by designation.

      . The government has attempted to distinguish the instant case from Holland arguing that whereas the latter is a complicated, net worth, tax evasion case, the former involves simpler false return circumstances. But this contention is a double-edged sword, for where the jury is less pressed to remember precise figures and make mathematical calculations, the use of charts may be less desirable.


author: TIMBERS, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Joseph MARANDO et al., Appellants.
    Nos. 665-668, Dockets 73-2378, 73-2433, 73-2455 and 73-2545.
    United States Court of Appeals, Second Circuit.
    Argued May 20, 1974.
    Decided July 3, 1974.
    Certiorari Denied Nov. 11, 1974.
    See 95 S.Ct. 317.

      Irving Anolik, New York City (Bertram Zweibon, New York City, on the brief), for appellant Marando.
    Stanley Peltz, appellant pro se.
    George Santangelo, New York City (Santangelo & Santangelo, New York City, on the brief), for appellant Linder.
    E. Thomas Boyle, New York City (William J. Gallagher, The Legal Aid Society, New York City, on the brief), for appellant Berardelli.
    John M. Walker, Jr., Asst. U. S. Atty., New York City (Paul J. Curran, U. S. Atty., Thomas E. Engel and S. Andrew Schaffer, Asst. U. S. Attys., New York City, on the brief), for appellee.
    Before SMITH and TIMBERS, Circuit Judges, and TYLER, District Judge.

       Hon. Harold It. Tyler, Jr., of the Southern District of New York, sitting by designation.

   TIMBERS, Circuit Judge:

Appellants Joseph Marando, Stanley Peltz, Arthur Berardelli and Lee Linder appeal from judgments of conviction entered upon jury verdicts returned in the Southern District of New York on July 25, 1973 after a five week trial before Constance Baker Motley, District Judge, finding them guilty of conspiring to violate the federal securities laws and the mail fraud statute in connection with the public offering of securities in violation of 15 U.S.C. § 77q (1970) and 18 U.S.C. §§ 371 and 1341 (1970); and finding them guilty on substantive counts of mail fraud and aiding and abetting such fraud in violation of 18 U.S.C. §§ 1341 and 2 (1970).

Of the numerous claims of error raised on appeal, we find only one to be of sufficient merit to warrant discussion: the-claim that the mail fraud convictions should be reversed in light of the Supreme Court’s decision in United States v. Maze, 414 U.S. 395 (1974), because the mailings of the confirmation slips here allegedly were not “for the purpose of executing” the manipulative scheme charged in the indictment. Other subordinate claims of error are also raised.

We affirm.

I.

In view of the issue to which this opinion is addressed, it is sufficient briefly to summarize the fraudulent scheme proven at trial, focusing upon the use of the mails in alleged violation of Section 1341.

The essential evidence, viewed in the light most favorable to the government, United States v. McCarthy, 473 F.2d 300, 302 (2 Cir. 1972), established the existence of a conspiracy from June 1, 1971 through November 1, 1971 among appellants and others to violate the federal securities laws and the mail fraud statute in connection with the public offering of the stock of All State Metals Stamping Co., Inc. (All State).

The government proved that the scheme which resulted in the instant convictions involved primarily a conspiracy in which co-defendant Sehiffman and other employees of Kelly, Andrews & Bradley, Inc. (Kelly, Andrews), a financially ailing brokerage concern, obtained control of All State stock. They did so through co-defendant Feis of Feis Securities for the purpose of disposing of the stock at higher rigged prices. .They ultimately sold or attempted to sell the artificially rigged All State stock with the assistance of Marando, Peltz, Berardelli, Linder and others.

Although there were various phases of the scheme, the mailings “for the purpose of executing such scheme”, 18 U.S.C. § 1341,2 consisted of appellants’ sending broker confirmation slips to cover transactions in All State stock. Counts Two through Seven involved the sending by Kelly, Andrews on July 19 and September 10 of confirmations either to various initial purchasers of All State stock or to two brokerage houses, Chartered New England, Inc. and A. G. Edwards & Sons, Inc. All were sent in connection with transactions designed to manipulate the price of All State .stock.

Counts Ten and Eleven related to appellants’ transactions with the firm of A. H. Simon & Co. and its sole proprietor, Alan Simon. The mail- fraud violations charged in these counts were predicated upon the mailing by Kelly, Andrews to A. H. Simon of confirmation slips on September 22 and 27. These confirmations covered Simon’s “purchase” or “park” of 8,000 and 5,000 sháres of All State stock. Pursuant to the fraudulent scheme, appellants had planned that Simon would never have to pay for the stock and that the stock never would be delivered. After the confirmation slips were mailed, Kelly, Andrews took copies of the confirmation slips, together with Simon’s confirmations and the stock certificates, to the Chelsea National Bank and secured a $100,000 loan. Kelly, Andrews ultimately defaulted on this loan when Simon was unable to pay for the stock, although he had been told that the transaction was a “park”.

Counts Thirteen through Seventeen related to mailings of confirmation slips to various purchasers of All State stock based on sales at artificially inflated prices. In each ease, the confirmations were mailed by a broker who purchased from Kelly, Andrews for his customer’s account. This was the aspect of appellants’ scheme in which they sought to find brokers and other individuals in New York and the Bahamas who would place the manipulated stock. Specifical-. ly, Count Thirteen involved the mailing of a single confirmation slip by Hornblower and Weeks, Hemphill-Noyes, Inc. to a purchaser of 100 shares of All State stock who bought on the recommendation of a Hornblower employee who was a participant in the fraudulent scheme. The confirmation slips described in Counts Fourteen through Seventeen likewise were mailed by the firm of Graham Loving & Co. covering sales made by one of its registered representatives.

II.

The Supreme Court in United States v. Maze, 414 U.S. 395, 400 (1974), reaffirmed the rule of long standing that, to establish a violation of the mail fraud statute, “the mailing must be ‘for the purpose of executing the scheme, as the statute requires,’ Kann v. United States, 323 U.S. 88, 94 (1944). . . .” And the Court in Maze went on to reaffirm that “ ‘it is not necessary that the scheme contemplate the use of the mails as an essential element,’ Pereira v. United States [347 U.S. 1, 8 (1954)].” 414 U.S. at 400.

Appellants nevertheless argue that Maze requires reversal of their mail fraud convictions because the mailings of the confirmation slips were not for the purpose of executing the manipulative scheme charged in the indictment. We disagree. We hold that the mailings here not only were in furtherance of the fraudulent scheme, but also were an integral part of the fraud itself.

Appellants’ reliance on Maze is misplaced. The Supreme Court there dealt with an entirely different issue. The fraudulent scheme with which Maze was charged involved unlawfully acquiring in Louisville, Kentucky, a credit card which had been issued by a Louisville bank and using it to obtain goods and services from motel operators in various states. The mailings which were alleged to have been for the purpose of executing the scheme consisted of transmitting the invoices from the motels to the Louisville bank and the bank’s billing the credit card owner for payment. The Court noted that Maze’s scheme “reached fruition when he checked out of the motel, and there is no indication that the success of his scheme depended in any way on which of his victims ultimately bore the loss.” 414 U.S. at 402. Accordingly, the Court concluded that the mailings there involved were not sufficiently related to the fraud to be for the purpose of executing the scheme.

By way of contrast, the nature and purpose of the mailings in the instant case readily distinguishes them from Maze. The confirmation slips here were a regular and contemplated step prior to final settlement of the individual security transactions. They also were used to obtain further financing. Receipt of the confirmation slips, moreover, served to lull purchasers of All State stock into a false sense of security and enabled the scheme to reach fruition.

The essential facts here are more like those in United States v. Sampson, 371 U.S. 75 (1962), and United States v. Pereira, supra, the holdings in which were reaffirmed in Maze. Here, as in Pereira, the mailings enabled appellants to realize the fruits of their scheme. Copies of the confirmation slips sent to Simon permitted Kelly, Andrews to receive a bank loan. In contrast, the mailings in Maze occurred after the illegal benefits already had been acquired. Moreover, as in Sampson, the mailings here of the confirmation slips were for the purpose of executing the scheme because they “were designed to lull the victims into a false sense of security, postpone their ultimate complaint to the authorities, and therefore make the apprehension of the defendants less likely than if no mailings had taken place.” United States v. Maze, supra, 414 U.S. at 403. See United States v. MacKay, 491 F.2d 616, 624 (10 Cir. 1974).

Receipt of the confirmation slips from Kelly, Andrews and the other brokers ostensibly legitimatized the fraud and provided it with the appearance of normality. Much like the mailing of the stock certificates in United States v. Goldberg, 401 F.2d 644, 647 (2 Cir. 1968), cert. denied, 393 U.S. 1099 (1969), failure to send the confirmation slips “would surely arouse a customer’s suspicion and invite unwanted inquiry . . . . ” Without the apparent propriety afforded by receipt of the confirmations, the brokerage firms and the victimized purchasers would have been on notice to investigate the trades. See United States v. Schall, 371 F.Supp. 912, 925 (W.D.Pa.1974).

In short, we hold that the use of the mails for the transmission of confirmation slips in the instant case was “for the purpose of executing” the scheme in violation of 18 U.S.C. § 1341.

We have considered appellants’ other claims of error and find them to be without merit.

Affirmed.

      . In addition to the four appellants whose appeals are before us, the indictment named six other defendants. Of these, Stuart Schiffman, Leslie Zacharias and John Santini pleaded guilty to Count One; the case against Nathan Hager was severed prior to trial; Edward Craviolo pleaded guilty to a superseding information after waiving indictment ; and Robert Peis was convicted at trial but has not appealed.
      Marando was sentenced to suspended concurrent two year terms of imprisonment and placed on probation for five years on Counts One, Ten, Eleven and Thirteen through Seventeen. Peltz was sentenced to suspended concurrent three year terms of imprisonment and placed on probation for three years on Counts One, Two through Seven, Ten, Eleven and Thirteen through Seventeen. Peltz also was fined $3,000 on Count One. Berardelli and Linder were sentenced to concurrent two year terms of imprisonment on Counts One, Ten, Eleven and Thirteen through Seventeen. The latter two have been enlarged on bail pending appeal.

      . Of the sixteen mail fraud counts charged in the indictment, Counts Eight, Nine and Twelve were dismissed as to all appellants, and Counts Two through Seven were dismissed as to Marando, Berardelli and Linder. All appellants were convicted on Counts Ten, Eleven and Thirteen through Seventeen.

      . 18 U.S.C. § 1341 provides in relevant part:
      “Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fradulent pretenses, . . . for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Post Office Department, or takes or receives therefrom, any such matter or thing, or knowingly causes to be delivered by mail according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any such matter or thing, shall be fined not more than $1,000 or imprisoned not more than five years, or both.”

      . Pursuant to 17 C.F.R. § 240.15cl-4 (1973), a written confirmation must be sent by a brokerage firm covering all over-the-counter transactions. There is no requirement that such confirmation slips be transmitted by mail. But the jury’s finding here that appellants caused the mailings is supported by substantial evidence.

      . Moreover, since this case involved a fraudulent scheme in connection with the sale of securities, we are not confronted with conduct “which the states should appropriately control and which they can control, effectively.” United States v. Kelem, 416 F.2d 346, 347 (9 Cir. 1969), cert. denied, 397 U.S. 952 (1970). See United States v. Maze, 468 2d 529, 536 (6 Cir. 1972), aff’d, 414 U.S. 395 (1974). See generally United States v. Maze, supra, 414 U.S. at 405-08 (Burger, C. J., dissenting).


author:
CUMMINGS, Circuit Judge.
      FAIRCHILD, Circuit Judge

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Marion HARRINGTON, Defendant-Appellant.
    No. 73-1986.
    United States Court of Appeals, Seventh Circuit.
    Argued Sept. 9, 1974.
    Decided Oct. 11, 1974.

      Fairchild, Circuit Judge, concurred and filed opinion.

      Palmer K. Ward, Indianapolis, Ind., for defendant-appellant.
    Stanley B. Miller, U. S. Atty., Indianapolis, Ind., for plaintiff-appellee.
    Before SWYGERT, Chief Judge, and FAIRCHILD and CUMMINGS, Circuit Judges.
   CUMMINGS, Circuit Judge.

In October 1972, a two-count indictment was returned against defendant. The first count charged that he unlawfully possessed 19 packages of heroin on September 18, 1972. The second count charged that on the same date he illegally possessed seven packages of cocaine. Both counts were based on 21 U.S.C. § 841(a) (1). After a bench trial, defendant was found guilty as charged and received three-year concurrent sentences on each count, plus a special parole term of three years.

The sole question presented on appeal is whether defendant’s motion to suppress the evidence described in the indictment should have been granted on the ground that the search warrant had not been obtained and served in compliance with Rule 41 of the Federal Rules of Criminal Procedure.

The testimony developed at the hearing on the motion to suppress showed that two Indianapolis, Indiana, police department officers had been assigned to the federal Drug Abuse Law Enforcement program (“DALE”). On September 18, they received information from two confidential informants that during the prior 48 hours defendant had been selling heroin and cocaine in apartment 21 at 962 Pennsylvania Street in Indianapolis.

Upon the affidavit of one of the police officers, Judge Valan S. Boring of the Municipal Court of Marion County, Indiana, issued a search warrant in the name of that state, directed to the superintendent and any member of the Indianapolis police force.

Agent Albert Cottpn of the Indianapolis police department was in charge of the search party. Two other Indianapolis police officers and two agents of the Marion County, Indiana, Sheriff’s department participated in the execution of the search warrant. These agents were also detailed to the DALE task force. Two federal employees, the chief investigator of DALE and an Assistant United States Attorney, were present during the search as observers.

The five participating agents arrived at the apartment in question about 9:00 p. m. on September 18. Since no one admitted them after they requested entry, they entered by force after waiting a few minutes. The apartment was empty. Only three agents actually participated in the search of the apartment, while the other two took up a watch at the front door of the building.

One of the Indianapolis policemen found 19 packages of heroin in the top drawer of a dresser in the bedroom. Thereupon, Minnie Jordan, who shared the apartment with the defendant, arrived home. The agents read the search warrant to her, allowed her to peruse it and told her that she could obtain a copy from the clerk of the state court. She was then apprised of her rights and placed under arrest.

One of the deputy sheriffs then found seven packages of cocaine concealed between the window sill and the air conditioner in the bedroom. Thereupon defendant and two others arrived at.the apartment. As they had with Minnie Jordan, the agents read the search warrant to defendant, allowed him to peruse it and told him where he could obtain a copy. Defendant was told that narcotics had been found on the premises, was apprised of his rights and was placed under arrest. Defendant acknowledged to one of the agents that the drugs were his and requested that Miss Jordan not be arrested, but the agent refused this request. Both defendant and Miss Jordan were taken into custody and were booked and jailed at Indianapolis police department headquarters.

The narcotics in question were deposited in the property vault of the Indianapolis police department. On September 19, defendant and Miss Jordan were taken before the Municipal Court of Marion County, Indiana, for a preliminary hearing on the charge of violating the 1935 Indiana Narcotic Act, and bond was sent. A month later, these facts were presented to the federal grand jury that returned the present indictment.

The Government first contends that the search was conducted by local officials and was, therefore, a state undertaking, so that Rule 41 of the Federal Rules of Criminal Procedure was inapplicable. On the other hand, the chief investigator of DALE and an Assistant United States Attorney were present at the search as observers. Since the search ultimately resulted in a federal indictment and the state proceedings were dismissed when the federal indictment was returned, we will assume that this was a federal search, as did the Fifth Circuit under similar circumstances in United States v. Sellers, 483 F.2d 37, 42 (5th Cir. 1973), certiorari denied 417 U.S. 908, 94 S.Ct. 2604, 41 L.Ed.2d 212.

Appellant cites Navarro v. United States, 400 F.2d 315 (5th Cir. 1968), in support of his contention that the court below erred in denying his motion to suppress. In Navarro, state and federal agents conducted a search, which the court held to be “federal,” pursuant to a search warrant issued in a state court. The state court was not a court of record and, therefore, the search warrant failed to meet one of the requirements of Rule 41 as it then read. The court exercised its supervisory power and held that the evidence seized pursuant to the warrant should be suppressed. Here, however, the search warrant was issued by a judge in a court of record in accordance with the first requirement of Rule 41 of the Federal Rules of Criminal Procedure prior to its amendment. Therefore, the precise holding in Navarro is of no aid to defendant.

Furthermore, in Sellers the Fifth Circuit held that its decision in Navarro does not require the exclusion of evidence under the court’s supervisory powers in every situation where a “federal” search pursuant to a state search warrant fails to comply with all the requirements of Rule 41. In clarifying the holding in Navarro, the Fifth Circuit said:

“If, however, the warrant was issued under authority of state law then every requirement of Rule 41 is not a sine qua non to federal court use of the fruits of a search predicated on the warrant, even though federal officials participated in its procuration or execution. The products of a search conducted under the authority of a validly issued state warrant are lawfully obtained for federal prosecutor-ial purposes if that warrant satisfies constitutional requirements and does not contravene any Rule-embodied policy designed to protect the integrity of the federal courts or to govern the conduct of federal officers.” 483 F.2d at 43.

As the Fifth Circuit did in Sellers, we too decline to hold that state court warrants must meet all the requirements of Rule 41 whenever federal officers themselves have insufficient evidence of federal law violations to obtain a federal warrant. As Judge Clark there observed:

“Such a rule would not only serve no useful purpose, but it would also place officers acting jointly on the horns of a dilemma in deciding whether to charge a state or federal crime. Such officials should be free to make a considered choice based on the best available information and unencumbered by merely technical procedural rules.” 483 F.2d at 44.

In the present case, defendant does not argue that failure to comply with Rule 41 violated any of his constitutional rights. Defendant asserts only the following three flaws with respect to this search warrant:

First, it was not directed to “a civil officer of the United States authorized to enforce or assist in enforcing any law thereof or to a person so authorized by the President of the United States” (Rule 41(c)). Since the evidence shows that the President established the DALE program by executive order, the fact that the warrant was directed to an officer assigned to the DALE program is sufficient compliance, should defendant have standing to raise this question.

The second flaw asserted is that the person executing the search warrant did riot give defendant “a copy of the warrant and a receipt for the property taken” (Rule 41(d)). However, a copy of the warrant was read to defendant, defendant was allowed to examine the warrant, the property seized was recorded thereon, he was informed where he could obtain a copy with an inventory, and the evidence seized was appropriately labeled and safeguarded until trial, thus satisfying the spirit of Rule 41(d). Any such ministerial violation as the one relied upon here does not warrant suppression of the evidence in the circumstances of this case. See United States v. Gross, 137 F.Supp. 244, 248 (S.D.N.Y.1956).

Third, defendant attempts to fault the search warrant because the issuing judge did not attach “a copy of the return, inventory and all other papers in connection therewith and * * * file them with the clerk of the district court * * *” (Rule 41(f)). The search warrant, received in evidence below, shows that it was filed in the Municipal Court on September 18, that it was served on the same date, that the return was on September 19, and that 19 bindles of heroin, seven bindles of cocaine and two revolvers were seized from the apartment. Since the procedure followed by the Indiana authorities was adequate to protect defendant’s rights in the property, this search should not be invalidated because the precise ministerial terms of Rule 41(f) were not met. See United States v. Wilson, 451 F.2d 209, 214 (5th Cir. 1971), certiorari denied, sub nom. Fairman v. United States, 405 U.S. 1032, 92 S.Ct. 1298, 31 L.Ed.2d 490.

Here the warrant was issued under authority of Indiana law. Because the warrant satisfies constitutional requirements and does not contravene any substantial policy in Rule 41 designed to protect the integrity of the federal courts or to govern the conduct of federal officers, the motion to suppress was properly denied. A contrary holding would dampen federal cooperation and participation in any warranted search conducted, as here, by state officers for state purposes.

We wholeheartedly agree with the following interpretation of Rule 41 as expressed in Sellers:

“Properly read, Rule 41 grants the authority to designated judicial officers, federal and state, to issue federal search warrants. The authority granted to state courts under this rule is in addition to the state-vested power of those courts to issue a warrant upon a showing that probable cause exists to believe a violation of state law has occurred. While Rule 41 sets out the procedure to be followed in issuing a warrant for a violation of federal law, it obviously should not be contemplated that the federal rule would purport to regulate the procedures through which state courts may issue search warrants predicated on violations of state law.” 483 F.2d at 43.

Since the district court’s ruling on the motion to suppress was proper, the judgment of conviction is affirmed.

FAIRCHILD, Circuit Judge

(concurring).

I do not deem that the presence of federal officers or the cooperative nature of the enforcement effort requires that the warrant and search in this case fulfill Rule 41, F.R.Cr.P. It is enough, in my opinion, that the search, which presumably fulfilled state law requirements, complied with federal constitutional requirements.

      . The 1972 amendments to Rule 41, which became effective two weeks after the search warrant challenged by defendant here was issued, omit the court of record requirement.

      . As to lack of standing, see United States v. Gannon, 201 F.Supp. 68, 73 (D.Mass.1961).