Petition — McGarrity v. United States

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Supreme Court, U.

JAN

FILED

ik,

5 1978

» CLERK

In The

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

77-969

THOMAS HAMLIN McGARRITY, JR.,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

OVID C. LEWIS

1401 Dixie Highway

Covington, Kentucky 41011

Counsel for Petitioner

en ed

COURT INDEX PRESS, INC. — 215 &. Ninth Street, Cincinnati, Odio 46202 — (513) 241-1450

INDEX

OPINION BELOW

JURISDICTION

QUESTIONS PRESENTED

STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE

STATEMENT OF FACTS

REASONS FOR GRANTING THE WRIT

Il.

Ill.

The decision below sustaining the search of

Petitioner's alleged co-conspirator’s luggage is

in direct conflict with United States v. Chad-

wick, 97 S. Ct. 2476 (1977), and the justifi-

cation given that United States v. Chadwick,

97 S. Ct. 2476 (1977), is not retroactive

presents a question of such importance and

significance that it should be resolved by

this Court. . 5 Saar ote |

The decision of the Fifth Circuit that the

evidence was sufficient to convict Petitioner-

McGarrity conflicts with applicable decisions

of this Court and decisions of other Circuit

Courts of Appeals. .

The decision by the court below that unre-

corded bench conferences constitute harmless

error is an erroneous determination of an im-

portant quéstion of Federal law which has

not been but should be settled by this Court.

*®e*ee 6 eee 6 & Oars @

Page

IV. The determination below that it is per-

missible for an Appellate Judge to decide a

case involving a matter in which he appears

prejudiced is in conflict with applicable de-

cisions of this Court. 3)

CONCLUSION 36

APPENDIX:

Opinion of the United States Court of Appeals for

the Fifth Circuit la-8a

Judgment of the United States Court of Appeals for

the Fifth Circuit 9a-10a

Denial of Petition for Rehearing in the United

States Court of Appeals for the Fifth Circuit 10a-12a

Order Extending Time to File Petition for Writ

of Certiorari 18a

Certificate of Service l4a

CITATIONS

Cases: Page

Berger v. United States, 255 U.S. 22 (1921) | $1, 35

Cady v. Dombrowski, 413 U.S. 488 (1978). __—. 14, 17

Camara v. Municipal Court, $387 U.S. 523 (1967) 18, 14

Cardwell v. Lewis, 417 U.S. 583 (1974) 17

Chambers v. Maroney, 399 U.S. 42 (1970) 16

Chimel v. California, 395 U.S. 752 (1969) 16

Collins v. United States,

383 F. 2d 296 (10th Cir. 1967) 22

Coolidge v. New Hampshire,

403 U.S. 443 (1971) 14, 15, 16, 17

Cooper v. California, 386 U.S. 58 (1967) «16

Cupp v. Murphy, 412 U.S. 291 (1978) 16

Direct Sales Co. v. United States, 319 U.S. 703 (1943) 20

Faretta v. California, 422 U.S. 806( 1975) 30

Glidden v. Zdanok,

$70 U.S. 530 (1962), reh. den., 871 U.S. 854 (1962) 383

Gustafson v. Florida, 414 U.S. 260 (1973) 16

Grunewald v. United States, 358 U.S. 391 (1957) 18

Herron v. United States,

512 F. 2c 489 (4th Cir. 1975) 28

In re Grand Jury Proceedings,

559 F. 2¢. 234 (5th Cir. 1977) 35

In re Murchison, 349 U.S. 133 (1955) 30, 31

Johnson v. United States, 333 U.S. 10 (1948) _. 18

Katz v. United States, 389 U.S. 356 (1967) 12

Miller v. United States, 317 U.S. 192 (1942) 26

Offutt v. United States, 348 U.S. 11 (1954) .. 3]

Parrott v. United States, 314 F.2d 46 (10th Cir. 1978) 30

Poole v. United States, 250 F. 2d 396 (D.C. Cir. 1957) 26

South Dakota v. Opperman, 428 U.S. 364 (1976) 16

Texas v. White, 423 U.S. 67 (1975) ... . 16

Thompson v. City of Louisville, 362 U.S. 199 (1960) 20

Tumey v. Ohio, 273 U.S. 510 (1927) ..... ) 431, 34

United States v. Bolts,

558 F. 2d 316 (5th Cir. 1977) ste ee

United States v. Carlson,

547 F. 2d 1346 (8th Cir. 1976) ............ ui

United States v. Chadwick,

97 S. Ct. 2476 (1977)

United States v. Collins,

562 F. 2d 248 (6th Cir. 1977) ................ 22

United States v. Duckett,

550 F. 2d 1027 (5th Cir. 1977) ....21, 28, 24, 34

United States v. Edwards, 415 U.S. 800 (1974) .. 16

United States v. Falcone, 311 U.S. 205 (1940) .... 19

United States v. Garcia-Rodriguez,

558 F. 2d 956 (9th Cir. 1977) | /th'tadei ae

United States v. Gutierrer,

559 F. 2d 1278 (5th Cir. 1977) PO 23

United States v. Harris,

542 F. 2d 1288 (7th Cir. 1975) ................ 21

United States v. Hart,

551 F. 2d 738 (6th Cir. 1977) a eee 22

United States v. Kearney,

560 F. 2d 1858 (9th Cir. 1977) ................ 22

United States v. Kissel, 218 U.S. 601 (1910) ee

United States v. Klein,

560 F. 2d 1286 (5th Cir. 1977) .............. 23

556 F. 2d 1265 (5th Cir. 1977) ................

Page

_ United States v. La Vecchia,

513 F. 2d 1210 (2d Cir. 1975) ................. 21

United States v. Losing,

560 F. 2d 906 (8th Cir. 1977) ................ 23

United States v. Montgomery, 554 F. 2d 754 (5th

Cir. 1977), reh. den., 558 F. 2d 311 (5th Cir.

BE FOGG Ey Sam 65 fd 22s 10, 11, 19, 31, 33, 34, 36

United States v. Monroe,

552 F. 2d 860 (Sth Cir. 1977) ................ 21

United Siates v. Netterville,

558 F. 2d 908 (Sth Cir. 1977) ................ 23

United States v. Palacios,

556 F. 2d 1859 (5th Cir. 1977) ................ 23

United States v. Peltier, 422 U.S. 531 (1975) 1]

United States v. Perry,

550 F. 2d 523 (Sth Cir. 1977) ................ 21

United States v. Pruett,

551 F. 2d 1865 (5th Cir. 1977) .............. 23

United States v. Robinson, 414 U.S. 218 (1973) .. 16

United States v. Ross, 477 F. 2d 551 (6th Cir.

1973), cert. denied sub nomme Sain v. United

mee, Gee eee Oem Cleve) .................. 30

United States v. Salinas-Salinas,

555 F. 2d 470 (5th Cir. 1977) ................ 34

United States v. Scholle,

558 F. 2d 1109 (8th Cir. 1977) ................ 23

United States v. Schmaltz,

562 F. 2d 558 (8th Cir. 1977) .............. <a

United States v. Smith, 561 F. 2d 8 (6th Cir. 1977)... 22

United States v. Trevino,

Vi.

Page

United States v. Upshaw, 448 F. 2d 1218 (5th Cir.

1971), cert. den., 405 U.S. 934 (1972) 27, 28, 29

United States v. Valdovinos,

558 F. 2d 531 (9th Cir. 1977) | Ye ee ee

United States v. Votteller,

544 F. 2d 1355 (6th Cir. 1976) vaesek cee

Utilities Comm. v. Pollak, 343 U.S. 451 (1952) .... 35

Ward v. Village of Monroeville, 409 U.S. 57 (1972) __ 30, 31

Weeks v. United States, 232 U.S. 383 (1914) 17

Statutes:

21 U.S.C. § 841 (a) (1) er

21 U.S.C. § 846 Reg a Pee Pn Te 4, 18

21 U.S.C. § 952 (a) re nate Gtetina oes maine 4

21 U.S.C. § 960 (a) (1) | | | ae

28 U.S.C. § 455 (a) ee

28 U.S.C. §753 ae ees ae 2 3, 26

28 U.S.C. § 753 (b) S. PVitehwcsc dee 27, 28

28 U.S.C. § 753 (b) (2) Pe Pee ee 27

28 U.S.C. § 753 (b) (3) | 27

Miscellaneous:

B. Cardozo, The Nature of the Judicial Process,

168 (1921)... i i nalaaiieond Bical de 35

89 Cong. Rec. 10,873 (1948) .................... 27

H.R. Rep. No. 868, 78th Cong., Ist Sess. 6 (1943) 27

Hearings before the Senate Committee on the Ju-

diciary on S. 620, 78th Cong., Ist Sess. 31 (1943) _. 27

In The

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

No.

THOMAS HAMLIN McGARRITY, JR.,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

The Petitioner, THOMAS HAMLIN McGARRITY,

JR., respectfully prays that a writ of certiorari issue to

review the judgments and opinion of the United States

Court of Appeals for the Fifth Circuit entered in this

proceeding on October 3, 1977 and November 7, 1977.

OPINION BELOW

The judgments and the opinion of the Court of Appeals,

United States v. McGarrity, 559 F. 2d 1386 (5th Cir.

1977), rehearing denied 564 F. 2d 98 (1977), appear in

the Appendix hereto. No opinion was rendered by the

District Court for the Western District of Texas.

JURISDICTION

The judgment of the Court of Appeals for the Fifth

Circuit was entered on October 3, 1977 and a rehearing

was denied on November 7, 1977. Time for filing a

petition for certiorari was duly extended up to and includ-

ing January 6, 1978, by order of Justice Powell filed on

November 29, 1977, and this petition is therefore timely

filed. This Court's jurisdiction is invoked under 28 U.S.C.

§ 1254(1). See also Rule 22 (2).

QUESTIONS PRESENTED

1. Whether the decision below sustaining the search of

Petitioner's alleged co-conspirator’s luggage is in direct

conflict with United States v. Chadwick, 97 S. Ct. 2476

(1977), and the justification given that United States v.

Chadwick, 97 S. Ct. 2476 (1977), is not retroactive pre-

sents a question of such importance and significance that

it should be resolved by this Court.

2. Whether the decision of the Fifth Circuit that the

evidence was sufficient to convict Petitioner-McGarrity con-

flicts with applicable decisions of this Court and decisions

of other Circuit Courts of Appeals.

$8. Whether the decision by the court below that un-

recorded bench conferences constitute harmless error is an

erroneous determination of an important question of Fed-

eral law which has not been but should be settled by this

Court.

4. Whether the determination below that it is per-

missible for an Appellate Judge to decide a case involving

a matter in which he appears prejudiced is in conflict with

applicable decisions of this Court.

STATUTORY PROVISIONS INVOLVED

Title 28, United States Code, Section 455 (a) provides,

in pertinent part:

Any justice, judge, magistrate or referee in bankruptcy

of the United States shall disqualify himself in any

proceeding in which his impartiality might reason-

ably be questioned.

Title 28, United States Code, Section 753 provides, in

pertinent part:

(a) Each district court of the United States, the

United States District Court for the District of the

Canal Zone, the District Court of Guam, and the Dis-

trict Court of the Virgin Islands shall appoint one or

more court reporters.

(b) One of the reporters appointed for each such

court shall attend at each session of the court and at

every other proceeding designated by rule or order of

ry court or by one of the judges, and shall record

verbatim by shorthand or by mechanical means which

may be augmented by electronic sound recording sub-

ject to regulations promulgated by the Judicial Confer-

ence: (1) all proceedings in criminal cases had in

open court; (2) all proceedings in other cases had

in open court unless the parties with the approval of

the judge shall agree specifically to the contrary; and

(3) such other proceedings as a judge of the court

may direct or as may be required by rule or order of

court or as may be requested by any party to the pro-

ceeding.

Title 21, United States Code, Section 841 (a) provides,

in pertinent part:

(a) Except as authorized by this subchapter, it shall

be unlawful for any person knowingly or intention-

ally—

(1) to manufacture, distribute, or dispense, or

possess with intent to manufacture, distribute, or

dispense, a controlled substance; or

(2) to create, distribute, or dispense, or possess

with intent to distribute or dispense, a counter-

feit substance.

Title 21, United States Code, Section 846 provides:

Any person who attempts or conspires to commit

any offense defined in this subchapter is punishable

by imprisonment or fine or both which may not exceed

the maximum punishment prescribed for the offense,

the commission of which was the object of the attempt

or conspiracy.

STATEMENT OF THE CASE

Thomas Hamlin McGarrity, Jr., hereinafter Petitioner,

was convicted under 21 U.S.C. § 846 of conspiracy to possess

heroin, a Schedule I Controlled Substance, with intent to

distribute. In addition to the conspiracy charge, the orig-

inal indictment had charged Petitioner with violation of

21 U.S.C. §§ 952 (a) and 960 (a) (1), importing heroin, a

Schedule I Controlled Substance, into the United States

from Mexico; and 21 U.S.C. § 841 (a) (1), possession of

heroin, a Schedule I Controlled Substance, with intent to

distribute the same. These charges were listed in Counts

One, Two, and Three, respectively, of the indictment. A

plea of not guilty was entered. A jury found Petitioner

guilty on Count One of the indictment, acquitted him on

Count Three, and Count Two was dismissed on the motion

of the Government. The Petitioner filed a motion for

acquittal based on insufficiency of the evidence both at

the conclu: on of the State’s case and at the end of the

case. (Trial Transcript [hereinafter designated as Tr.]

207, 232.) Both motions were denied. (Tr. 208-209,

232.)

The Petitioner also filed a motion to suppress based on

an allegation of an unlawful search. Said motion was de-

nied. (Motion for Suppression Hearing Transcript [here-

inafter designated as M] 47, Tr. 200.)

Petitioner perfected an appeal to the United States Court

of Appeals for the Fifth Circuit, contending his conviction

was invalid in that (1) the Government had adduced in-

sufficient evidence to justify a conspiracy conviction; (2)

the District Court committed reversible error in failing to

grant Petitioner’s motion to suppress the use as evidence

of the heroin seized since it was detained as the result of

an unlawful search and seizure of personal luggage in a

private airplane; and (3) the failure of the court reporter

to record portions of significant bench conferences con-

stituted reversible error.

On October 3, 1977, the Fifth Circuit Court of Appeals

affirmed the Petitioner’s conviction, stating in its opinion

that (1) the evidence adduced was sufficient to sustain the

conspiracy conviction; (2) the search of the airplane and

subsequent search of luggage and seizure of heroin found

therein were lawful; and (3) the failure of the court

reporter to record bench conferences did not warrant re-

versal. (Appendix, pages 7a, 8a.)

On October 15, 1977, Petitioner filed a petition for

rehearing in banc with the Fifth Circuit Court of Appeals,

contending, inter alia, that the panel that decided his

appeal was improperly constituted since one of the three

judges on the panel had a preconceived notion of the

sufficiency issue and therefore could not act with the con-

stitutionally required impartiality and objectivity. Peti-

tioner’s petition for rehearing in banc was denied by the

Fifth Circuit Court of Appeals on November 7, 1977. (Ap-

pendix, page 1 la.)

Subsequently, Petitioner obtained a sworn statement

from one of the original alleged co-conspirators, Ruby

Swartz. The affidavit dated November 16, 1977, raised

serious questions concerning the fairness of Petitioner's

trial and even of prosecutorial misconduct. Accordingly,

on November 22, 1977, Petitioner filed with the Fifth Cir-

cuit Court of Appeals a motion for remand to the District

Court for filing a motion for new trial and for recall and

stay of execution of mandate pending determination of

motion for new trial by the District Court. The Fifth

Circuit Court of Appeals denied Petitioner's motion on

December 16, 1977. (Appendix, page 12a.)

In the interim, Petitioner applied to Justice Lewis F.

Powell, Jr., for a thirty-day extension of time for filing a

petition for a writ of certiorari pursuant to U.S Sup. Ct.

Rule 22 (2), 28 U.S.C.A. Petitioner's petition was granted

by Justice Powell on November 29, 1977, the time for filing

a petition for writ of certiorari extended to and including

January 6, 1978. (Appendix, page 13a.)

STATEMENT OF FACTS

The Record reveals that on April 20, 1976, Special Agent

Ruric N. Staton of the Drug Enforcement Administration,

received information from a confidential, sometimes re-

liable, informant that a black male and a black female had

come to El Paso for the purpose of obtaining heroin. (M

43.) No information concerning McGarrity was relayed.

The informant told Agent Staton that the couple would

stay at the Rodeway Inn in El Paso, Texas, for several

days. No names were given at the time, but the black

male was described as having grey hair and a grey beard

and wearing a canvas hat similar to a sailor hat. (M 19.)

Following receipt of this information, Agent Staton estab-

lished surveillance of the Rodeway Inn, and ascertained

that a black male and female somewhat similar in appear-

ance to the informant’s description were registered in

Room 186 of the Rodeway Inn. The black male was

registered under the name of Ken Watson. Nothing un-

usual occurred on April 20, 1976. (M 18-19, Tr. 14-16.)

On April 21, 1976, Agent Staton was joined by Customs

Air Detail Officer Ruben Gomez in the surveillance. Agent

Gomez told Agent Staton that his service had an aircraft

owned by Arthur Brown under surveillance, which was

located at a private aircraft facility, the Southwest Air

Rangers Field in El Paso. (M 12-15, Tr. 136.) On the

afternoon of the 2Ist of April, 1976, Agents Staton and

Gomez observed McGarrity in company with Ruby Louise

Swartz and a third negro male, later identified as Paul L.

Montgomery, a co-defendant. Paul L. Montgomery was

the male who had registered as Ken Watson. The three

took photographs of each other, and appeared to be in

conversation. Agent Staton ascertained that McGarrity

had registered into the motel using the name Tim McNary.

(Tr. 19.) Nothing extraordinary or suspicious occurred.

(M 33.)

On April 22, 1976, Customs Officer Gomez overheard

Ruby Louise Swartz tell another party on the telephone

that she was “with Paul.” (Tr. 139, 140.)

Shortly after midnight, April 23, 1976, Agent Staton

received another call from his informant and was told

that when “the people left town they would be in possession

of a large amount of heroin.” (M 24.) In the early morn-

ing hours of April 23, 1976, Agents Staton and Gomez

observed McGarrity leave the motel with his luggage, and

proceed to the Southwest Air Rangers Field adjacent to

E] Paso International Airport, where he walked to a small

airplane parked on the airstrip. (Tr. 44, 146.) Subse-

quently the Agents saw co-defendant Montgomery and

Ruby Louise Swartz leave the motel with their lug-

gage and when they arrived at the airport, the Agents

also saw co-defendant Montgomery and Ruby Louise

Swartz talking with a man whom they took to be of Mexi-

can descent driving an automobile with red and white

license plates, which the agents recognized as similar to

Frontera Chihuahua license plates, although they could

have been plates of an U.S. State. (M 30, Tr. 50, 51, 147,

148.) McGarrity and his alleged co-conspirators, Mont-

gomery and Swartz, boarded the aircraft owned by Arthur

Brown and were preparing to leave when they were arrested

by Gomez and Staton. The three suspects were ordered to

line up against the plane and searched for weapons. (Tr.

57.) No weapons were found during this search. Sub-

sequently, Agent Staton entered the plane and searched

some of the personal luggage of Paul Montgomery in which

he found heroin. (Tr. 59.) No narcotics were found on

Petitioner or in his luggage. (Tr. 65, 85.) The agents had

neither arrest nor search warrants. (M 25, 26.) The

plane was then locked and subsequently flown by US.

Customs Pilot Bill Eddleman to an Army Air Field 1-2

miles north of the Southwest Air Rangers Field. (Tr. 158-

159.) During the period of the arrest, search, and seizure,

Eddleman was in another plane ready to take off and

follow the Arthur Brown aircraft if the agents had decided

not to make an arrest at that time. (Tr. 151, 155-156.)

Petitioner subsequently was charged together with co-

defendants Montgomery and Ruby Louise Swartz with con-

spiracy to possess heroin with intent to distribute, importa-

tion of heroin, and possession of heroin with intent to

distribute. Petitioner was granted a severance and a sep-

arate trial. Petitioner's motion to suppress was denied

and his trial proceeded. During the trial, several critical

bench conferences took place which were not recorded.

(Tr. 11, 196.) The Government's case for conspiracy

rested essentially on proof that Petitioner (1) had used an

alias at the motel; (2) was present with Montgomery and

Swartz for much of the time during the several days pre-

ceding the arrest; and (3) had stated he had met Mont-

gomery and Swartz in El Paso, even though it was clear

he had known Montgomery in Detroit since he had Mont-

gomery’s Detroit address recorded on some papers found

on his person. Petitioner did not take the stand in his

defense. The jury returned a verdict of guilty on Count

One of the indictment and not guilty on Count Three.

Count Two of the indictment was dismissed on the Govern-

ment’s motion. (Tr. 7.) Petitioner was sentenced by the

court to imprisonment for a term of 12 years, with a special

parole term of 15 years.

Petitioner thereupon perfected his appeal to the United

States Court of Appeals contending his conviction was

invalid in that (1) there was insufficient evidence proferred

by the Government to support a conspiracy conviction;

(2) his motion to suppress was improperly denied; and

(3) failure to record crucial bench conferences constituted

reversible error. It is, of course, axiomatic that Petitioner

was entitled to a resolution of these issues by a fair, im-

partial, and unbiased panel of three judges. However,

when the decision was rendered, Petitioner discovered that

Circuit Judge Charles Clark was a member of the panel

that decided his appeal. Petitioner thereupon filed ‘a

petition for rehearing in banc contending that he had

been denied his right to a fair, impartial, and unbiased

panel since Circuit Judge Clark sat on the panel deciding

the appeal of his alleged co-conspirator, Paul L. Mont-

gomery, in United States v. Montgomery, 554 F. 2d 754,

(5th Cir. 1977), rehearing denied 558 F. 2d 311 (5th Cir.

1977). Im Montgomery, the panel, in an opinion au-

thored by Judge Clark, concluded:

[T}he con —— conviction can still stand if there

exists an adequate evidentiary basis for a finding that

a conspiracy existed with McGarrity alone. United

States v. Lance, 536 F. 2d 1065 (5th Cir. 1976) ;

United States v. Cabrera, 447 F. 2d 956 (5th Cir.

1971). McGarrity’s use of an alias, his knowledge of

both ‘coal s actual name and address and his

alias, coupled with his presence with Montgomery

through mech of this e eptode constitute sufficient evi-

dence of conspiracy. nited States v. Evers, supra;

see United States v. Reynolds, 511 F. 2d 603 (5th Cir.

1975). The status of Swartz as a conspirator is not

the focus of our decision. The evidence that Mont-

gomery conspired with McGarrity was much stronger

than the evidence that Montgomery conspired with

Swartz. Although we have held that the jury could

not have convicted Montgomery for conspiring with

Swartz, they could have believed Montgomery con-

spired with McGarrity. That is enough. 554 F. 2d,

at 756.

Here embodied in a published opinion is Judge Clark's

assessment of the Montgomery-McGarrity conspiratorial re-

lationship. Nonetheless, the Fifth Circuit Court of Ap-

peals denied Petitioner's petition for rehearing.

REASONS FOR GRANTING THE WRIT

THE DECISION BELOW SUSTAINING THE

SEARCH OF PETITIONER'S ALLEGED CO.

CONSPIRATOR’S LUGGAGE IS IN DIRECT

CONFLICT WITH UNITED STATES vy. CHAD.

WICK, 97 S. CT. 2476 (1977), AND THE JUSTIFI-

CATION GIVEN THAT UNITED STATES v.

CHADWICK, 97 S. CT. 2476 (1977), IS NOT

RETROACTIVE PRESENTS A QUESTION OF

SUCH IMPORTANCE AND SIGNIFICANCE

THAT IT SHOULD BE RESOLVED BY THIS

COURT.

The court below concluded that the search of Petitioner's

alleged co-conspirator’s luggage was valid “for the reasons

stated in [United States v. Montgomery, 554 F. 2d 754,

(5th Cir. 1977), rehearing denied, 558 F. 2d 311 (5th Cir.

1977) |." (Appendix, page 4a.) In the Montgomery

opinion the court upheld the search even though it might

be invalid as inconsistent with the rationale of United

States v. Chadwick, 97 S. Ct. 2476 (1977), since “under

United States v. Peltier, 422 U.S. 531... it is evident

Chadwick is not to be applied retroactively.” United

States v. Montgomery, 558 F. 2d $11, 312 (5th Cir. 1977).

Petitioner contends that the Peltier rationale is not ap-

plicable where this Court is merely reaffirming settled

doctrine. We note that this Court in Chadwick reaffirmed

the “settled constitutional principle . . . that a fundamental

purpose of the Fourth Amendment is to safeguard indi-

viduals from unreasonable Government invasions of legiti-

mate privacy concerns... .” 97S. Ct., at 2843. Here, as

in Chadwick, there was no exigency calling for an imme-

diate search. “The agents had no reason to believe that

the . . . [luggage] contained explosives or other inherently

dangerous items, or that it contained evidence which would

lose its value unless the . . . [luggage] was opened at once.’

97 S. Ct., at 2480. We note that the record reveals that

Agent Staton was positioned upon the left wing and Agent

Gomez was positioned upon the right wing of Petitioner's

airplane. (M 16.) Montgomery, Swartz, and the Petitioner

were told to get out of the airplane. Jbid. The engine

had not been started. (M 17.) After the people had been

searched it was clear that no weapons or contraband were

within their immediate control: “There was quite a bit

of luggage in the rear of the plane.” (M 17.) Further,

a custom's aircraft was positioned to watch the plane seized

and to follow it if it took off. (Tr. 151.) The agents

were informed about the plane on April 20, 1976, and

knew they might seize it for at least 2 days prior to the

actual seizure. (M 18, 22, 24, 34, 36-37, 40.) This knowl-

edge is further evidenced in that, on April 23, 1976, the

agents had positioned themselves near Petitioner's plane

pretending to work on another airplane. (M 20.) The

conclusion is compelled that the search was unreasonable

in light of all these facts and circumstances.

Petitioner contends that even without the clarifying

Chadwick opinion existing constitutional doctrine rendered

the search invalid. For a considerable period of time it

has been accepted as axiomatic that the Fourth Amendment

protects persons and their reasonable expectations of pri-

vacy. Katz v. United States, 389 U.S. 356 (1967). Early

on it was said:

The point of the Fourth Amendment, which often is

not grasped by zealous officers, is not that it denies law

enforcement the support of the usual inferences which

reasonable men draw from evidence. Its protection

consists in requiring that those inferences be drawn by

a neutral and detached magistrate instead of being

judged by the officer engaged in the often competitive

enterprise of ferreting out crime. Any assumption

that evidence sufficient to support a magistrate’s dis-

interested determination to issue a search warrant will

justify the officers making a search without a warrant

would reduce the Amendment to a nullity... .

Where the right to privacy must reasonably yield to

the right of search is, as a rule, to be decided by a

judicial officer, not by a policeman or government -

enforcement agent. Johnson v. United States, 333

US. 10, 13-14 (1948) (Emphasis added) .

The rule is necessarily fundamental within our constitu-

tional framework:

Any other rule would undermine the “right of the

people to be secure in their persons, houses, papers and

effects,"" and would obliterate one of the most funda-

mental distinctions between our form of government,

where officers are under the law, and the police state

where they are the law. Johnson, supra, 333 US., at

17 (Emphasis added) .

The Fourth Amendment, evolving through societal

change and tempered with historical perspective, “thus

gives concrete expression to a right of the people which is

basic to a free society.” Camara v. Municipal Court, 387

U.S. 523, 528 (1967).

Nevertheless, one governing principle, justified by his-

tory and by current experience has consistently been

followed: except in certain carefully defined classes of

cases, a search of private property without proper con-

sent is “unreasonable’”’ unless it is authorized by a

valid search warrant. Camara, supra, 387 US., at

523.

See Coolidge v. New Hampshire, 403 U.S. 443, 454-455

(1971) ; Cady v. Dombrowski, 413 U.S. 433, 439 (1973).

In Camara, supra, the issue was whether a new exception

to the Warrant Clause of the Fourth Amendment should be

carved out. The Court noted:

In assessing whether the public interest demands cre-

ation of a general exception to the Fourth Amend-

ment’s warrant requirement, the question is not wheth-

er the public interest justifies the type of search in

question, but whether the authority to search should

be evidenced by a warrant, which in turn depends in

part upon whether the burden of obtaining a warrant

is likely to frustrate the governmental purpose behind

the search. Camara, supra, 387 U.S., at 533 (citing

Schmerber v. California, 384 U.S. 757, 770-771).

Petitioner respectfully contei.ds, with this in mind, that

no governmental purpose would have been frustrated had

a warrant been required in the present situation. Thus,

case law existing prior to Chadwick mandates the conclu-

sion that Petitioner’s case was wrongly decided. This re-

sult is inescapable since the Fourth Amendment:

merely gives full recognition to the competing public

and private interests here at stake and, in so doing,

best fulfills the historic purpose behind the constitu-

tional right to be free from unreasonable government

invasions of privacy. Camara, supra, 387 US., at 539

(Citations omitted.)

Of course the rights “against unlawful search and seizure

are to be protected even if the same result might have

been obtained in a lawful way.” Coolidge v. New Hamp-

shire, 403 U.S. 443, 451 (1971). Moreover:

The exceptions are “jealously and carefully drawn:

and there must be “a showing by those who seek ex-

emption . . . that the exigencies of the situation made

that course imperative.” ‘The burden is on those who

seek the exemption to show the need for it. IJbid., at

455.

Petitioner contends that the burden was not met, for as

the Court has admonished:

The requirement of a warrant to seize imposes no in-

convenience whatever, or at least none which is con-

stitutionally cognizable in a legal system that regards

warrantless searches as “per se unreasonable” in the

absence of “exigent circumstances” .... [T]o expand

the scope of such an intrusion to the seizure of objects

... which the police knew in advance they . . . intend-

ed to seize, would fly in the face of the basic rule that

no amount of probable cause can justify a warrantless

seizure. Coolidge, supra, 403 U.S., at 470-471.

Petitioner contends that the Supreme Court’s admonish-

ment has not been heeded by the Fifth Circuit:

Since the police knew of the presence of the automo-

bile [airplane] and planned all along to seize it,

there was no “exigent circumstance” to justify their

failure to obtain a warrant. Coolidge, supra, 403 U'S.,

at 478.

Petitioner further urges that it must be remembered

that:

The warrant requirement has been a valued part of

our constitutional law for decades, and it has deter-

mined the results of scores of cases in courts all over

this country. It is not an inconvenience to be some-

how “weighed” against claims of police efficiency. It

is, or should be, an important working part of our

machinery of government, working as a matter of

course to check the “well-intentioned but mistakenly

over-zealous executive officers” who are a part of our

system of law enforcement. [/f it is to be a true guide

to constitutional police action, rather than just a pious

phrase, then “the exceptions cannot be enthroned into

the rule.” Coolidge, supra, 403 US., at 481. (Em-

phasis added.)

Petitioner respectfully contends that this is not a case

where a lawful custodial arrest gave rise to authority to

search his person, Gustafson v. Florida, 414 U.S. 260

(1973) ; United States v. Robinson, 414 U.S. 218 (1973) ;

Cupp v. Murphy, 412 U.S. 291 (1973); nor a personal

search occurring later at a place of detention. United

States v. Edwards, 415 U.S. 800 (1974).

This is not a situation where a search “incident to a

lawful arrest” may extend to a search of the area in the

“possession” or under the “control’’ of the arrestee. Chimel

v. California, 395 U.S. 752, 760 (1969). As this Court

observed in Chadwick,

Once law enforcement officers have reduced luggage

or other personal property not immediately associated

with the person of the arrestee to their exclusive con-

trol, and there is no longer any danger that the arrestee

might gain access to seize a weapon or destroy evi-

dence, a search of that property is no longer an inci-

dent of the arrest. Chadwick, supra, 97 S. Ct., at 2485.

Nor is this ; case where a car, not a repository of per-

sonal effects, may be searched for a variety of reasons. See,

e.g., South Dakota v. Opperman, 428 U.S. 364 (1976);

Texas v. White, 423 U.S. 67 (1975) ; Chambers v. Maroney,

399 U.S. 42 (1970); Cooper v. California, 386 U.S. 58

(1967) .

Here a repository of personal effects was searched, yet

no exigent circumstances existed. The luggage involved

no diminisk ed expectation of privacy because, for example,

[i]t travels public thoroughfares where both its occupants

and its contents are in plain view.” Cardwell v. Lewis, 417

U.S. 583, 590 (1974). Nor is this a case where the expecta-

tion of privacy is diminished because “the extent of police-

citizen contact . . . will be substantially greater than police-

citizen contact in a home or office.’ Cady v. Dombrowski,

413 U.S. 433, 441 (1973).

Petitioner respectfully contends that the luggage search

presently in issue is controlled by United States v. Chad-

wick, 97 S.Ct. 2476 (1977), because ‘‘[t]he word automo-

bile [airplane] is not a talisman in whose presence the

Fourth Amendment fades away and disappears.’ Coolidge

v. New Hampshire, 403 U.S. 443, 461-462 (1971). Since

Petitioner's appeal is presently pending, Chadwick, supra,

applies, particularly since the Court in Chadwick merely

reaffirmed the “settled constitutional principle . . . that

a fundamental purpose of the Fourth Amendment is to

safeguard individuals from unreasonable Government in-

vasions of legitimate privacy interests... .” 97 S. Ct., at

2483. Moreover, the efficient administration of justice

demands that the Court decide the important question of

the retroactivity of Chadwick as soon as possible.

Given the invalidity of the search, it follows that Peti-

tioner’s motion to suppress was improperly denied since

in a federal prosecution such as this the Fourth Amendment

precludes the use of evidence obtained by means of an

illegal search and seizure. Weeks v. United States, 232

U.S. 383 (1914).

Il.

THE DECISION OF THE FIFTH CIRCUIT

THAT THE EVIDENCE WAS SUFFICIENT TO

CONVICT PETITIONER - McGARRITY CON-

FLICTS WITH APPLICABLE DECISIONS OF

THIS COURT AND DECISIONS OF OTHER

CIRCUIT COURTS OF APPEALS.

As noted above, the Petitioner was convicted under 21

U.S.C. § 846 (1970) of conspiracy to possess heroin, a

Schedule I Controlled Substance, with intent to distribute.

The Petitioner filed a motion for acquittal based on in-

sufficiency of the evidence both at the conclusion of the

State’s case and at the end of trial. (Tr. 207, 232.) Both

motions were denied. (Tr. 208-209, 232.) It is significant

to note that the prosecution dropped the substantive charge

of Count II against Petitioner and the jury acquitted Peti-

tioner of the possession charge of Count III.

Mr. Justice Holmes has termed a conspiracy a “‘partner-

ship in criminal purposes.” United States v. Kissel, 218

U.S. 601, 608 (1910). Historically, the use of the con-

spiracy charge has been suspect. This Court has ‘‘repeated-

ly warned that it will disfavor attempts to broaden the

already pervasive and widesweeping nets of conspiracy

prosecutions.” Grunewald v. United States, 353 U.S. 391,

404 (1957). The Fifth Circuit, by its action, has con-

doned such an abuse of power in utilizing the conspiracy

charge in the circumstances disclosed by the record, therepy

depriving Petitioner of his right to due process of law.

This conclusion is evident since the Fifth Circuit, by

affirming the decision of the District Court, has, in effect,

said that little more than mere presence is sufficient to

infer a conspiratorial agreement.

As in the Montgomery case, the record now before

us discloses that McGarrity used an alias during the

events which led to his arrest. He was present with

Montgomery through almost all of the events sur-

rounding the acquisition of the heroin by Montgom-

ery. Furthermore, immediately after the arrest Mc-

Garrity said to the arresting officer that he had only

just met Montgomery and Swartz (to whom he re-

ferred by their aliases) at the El Paso Rodeway Inn

and had merely offered to give them a ride in his priv-

ate airplane from El] Paso, Texas to Detroit, Michigan.

We find that there was substantial evidence from

which the jury would conclude that this exculpatory

statement was false, it appearing that McGarrity had,

on his person, the correct name and the correct busi-

ness and residence address of Montgomery in Detroit,

Michigan. Further, he had on his person a writing set-

ting out Montgomery’s alias, the telephone number of

Rodeway Inn where he was staying while making the

heroin transaction, and Montgomery’s room number

and telephone extension there. All of the circum-

stances, coupled with a finding that the defendant gave

a false exculpatory statement formed a sufficient basis

for the jury's conclusion that McGarrity was a conspir-

ator with Montgomery. (Appendix, page 5a.)

One searches in vain to discover in this language any

substantial basis for concluding that there existed a McGar-

rity-Montgomery agreement concerning illicit possession of

heroin with intent to distribute. And the “gist of the

offense of conspiracy . . . is agreement among conspirators

to commit an offense attended by an act of one or more

of the conspirators to effect the object of the conspiracy.”

United States v. Falcone, 311 US. 205, 210 (1940).

Knowledge that conspiracy exists is a minimum require-

ment for establishing an agreement to join and cooperate

in an illegal venture. ‘“Without the knowledge, the intent

cannot exist. Furthermore, to establish the intent, the evi-

dence of knowledge must be clear, not equivocal.” Direct

Sales Co. v. United States, 319 U.S. 703, 711 (1943). Since

“{t}hose having no knowledge of the conspiracy are not

conspirators .. .”” [bid., at 210, a conviction based upon

evidence insufficient to prove an agreement results in a

serious deprivation of the accused's right to due process

of law. Thompson v. City of Louisville, 362 U.S. 199, 206

(1960) .

It appears that the Fifth Circuit, finding substantial evi-

dence extant to justify a jury conclusion that an exculpa-

tory statement by Petitioner was false, concludes that other

innocent activities by Petitioner provided a “sufficient”’

basis for concluding Petitioner conspired with Montgom-

ery. In this context, the court necessarily adopts a less than

substantial evidence standard to sustain Petitioner's con-

spiracy conviction. Given the tenuous nature of the Gov-

ernment’s case, only a slight evidence standard could have

been employed, which perhaps explains the failure of the

court to articulate precisely what standard it was using.

Thus this case provides a graphic illustration of how

“charges of conspiracy are . . . made out by piling inference

upon inference, thus fashioning . . . a dragnet to draw in

all substantive crimes.” Direct Sales Co. v. United States,

319 U.S. 703, 711 (1943). But, without an appropriately

stringent standard of sufficiency of evidence articulated by

this Court, such results are reasonably anticipated.

A review of the pertinent case law concerning the suffi-

ciency of the evidence standard to justify conspiracy convic-

tions shows an intra-Circuit conflict, as well as serious and

recurring inter-Circuit conflicts. Efficiency and the sound

administration of justice demand that these conflicts be

resolved. This Court could significantly promote truth

and fairness by providing the necessary impetus toward

eliminating the type of egregious conviction, based upon

the flimsy and speculative evidence that was produced in

the instant case, by promulgating a clear standard estab-

lishing the necessary degree of stringency of sufficiency of

evidence required to convict a person on a conspiracy

charge.

The Courts of Appeals often apply, as here, a “‘slight

evicence” standard to sustain an individual’s involvement

in a criminal conspiracy, although the requisite evidence

required to meet the standard varries significantly among

the Circuits. A survey of these variations illustrates the

compelling need for uniformity and guidance.

Variations of the “slight evidence’ standard include:

(1) The enlightened “slight evidence” standard. United

States v. Duckett, 550 F. 2d 1027, 1031 (5th Cir. 1977)

(“slight evidence” is a shortened form of the sounder prin-

ciple that the circumstances connecting an accused to a

conspiracy must be substantial in weight and context; al-

though if taken in the abstract, they would appear slight) ;

United States v. Harris, 542 F. 2d 1283, 1305 (7th Cir.

1975) (burden of proof for conspiracy conviction is not

any different than that required for any other crime). (2)

The knowledgeable “slight evidence” standard, United

States v. La Vecchia, 513 F. 2d 1210, 1218-1219 (2d Cir.

1975) (evidence must support an inference that the defen-

dant knew he was involved in criminal enterprise of sub-

stantial scope) ; United States v. Monroe, 552 F. 2d 860,

863 (9th Cir. 1977) (evidence of concert of action, all

parties working together understandably with a single de-

sign for accomplishment of a common purpose, shows an

agreement); United States v. Perry, 550 F. 2d 523-529

(9th Cir. 1977) (prosecution must prove that “each defeii-

dant knew or had reason to know scope of distribution and

retail organization involved with the illegal narcotics and

had reason to believe that their own benefits derived from

the operation were dependent upon the success of the

entire venture’’). Compare, United States v. Valdovinos,

558 F. 2d 531, 533 (9th Cir. 1977) (only slight evidence is

required, viewing this evidence most favorable to the gov-

ernment) with United States v. Garcia-Rodriguez, 558 F.

2d 956, 960 (9th Cir. 1977) (Little evidence is required

. even though he is but slightly involved in bringing

the conspiracy to its attempted conclusion) with United

States v. Kearney, 560 F. 2d 1358, 1362 (9th Cir. 1977)

(only slight evidence) ; Collins v. United States, 383 F. 2d

296, 300 (10th Cir. 1967) (Defendant must knowingly

contribute to the furtherance of the conspiracy). Valdo-

vinos, supra, Garcia-Rodriguez, supra, and Kearney, supra,

indicate an intra-Ninth Circuit conflict. In no way can

the “knowledgeable slight evidence” rule be reconciled

with those cases. (3) Another standard is the “slight

evidence which avoids review” enunciated in United States

v. Votteller, 544 F. 2d 1355, 1359 (6th Cir. 1976) (once

conspiracy is established, only slight evidence is necessary

to connect a defendant with it); United States v. Smith,

561 F. 2d 8, 12 (6th Cir. 1977) (to the same effect). Nor

can United States v. Hart, 551 F. 2d 738 (6th Cir. 1977)

be reconciled with the aforementioned Sixth Circuit cases

(substantial evidence of an agreement membership in

the conspiracy, and the carrying ovt of one or more of

the overt acts). Ibid., at 741. Compare United States v.

Carlson, 547 F. 2d 1346, 1360 (8th Cir. 1976) (slight evi-

dence may be substantial and, therefore, sufficient to sup-

port a conviction) with United States v. Collins, 552 F. 2d

243, 245 (8th Cir. 1977) (evidence which otherwise seems

slight) with United States v. Scholle, 553 F. 2d 1109, 1118

(8th Cir. 1977) (even slight evidence connecting a defen-

dant may constitute sufficient evidence) ; United States v.

Losing, 560 F. 2d 906, 912 (8th Cir. 1977) (same) ; United

States v. Schmaltz, 562 F. 2d 558, 560 (8th Cir. 1977)

(same) .

Intra and inter-Circuit conflict thus abound in this area

of the criminal law. In addition, the Fifth Circuit itself

has a variety of standards: United States v. Pruett, 551 F.

2d 1365, 1369 (5th Cir. 1977) (evidence of knowledge

must be clear and not equivocal) ; United States v. Netter-

ville, 553 F. 2d 903, 911 (5th Cir. 1977) (only slight evi-

dence) ; United States v. Trevino, 556 F. 2d 1265, 1268

(5th Cir. 1977) (when defendants are clearly connected to

the conspiring group or acting in such a manner as un-

mistakably to forward its purpose slight additional evidence

suffices to infer knowing participation) ; United States v.

Palacios, 556 F. 2d 1359, 1364 (5th Cir. 1977) (evidence

must show that the defendant associated himself with the

venture, participated in it, and acted to make it succeed) ;

United States v. Bolts, 558 F. 2d $16, $25 (5th Cir. 1977)

(where persons are clearly connected slight additional evi-

dence to infer knowing participation; United States v.

Gutierrer, 559 F. 2d 1278, 1281 (5th Cir. 1977) (evidence

must be clear and not equivocal) ; United States v. Klein,

560 F. 2d 1236 1243 (5th Cir. 1977) (In order to fasten

guilt on one accused of being a co-conspirator, it is neces-

sary to prove that he actively participated in the conspiracy

charged) .

These standards are obviously irreconcilable. The need

for guidance and uniformity is compelling. A recent Fifth

Circuit decision, United States v. Duckett, 550 F. 2d 1027

(5th Cir. 1977), provides probably the best support for

this conclusion. The Duckett case is in most factual re-

spects similar to that of Petitioner. However, Petitioner

was convicted, while the evidence was found insufficient

to convict by the Duckett Court. Petitioner directs this

Court's attention to the close parallel. The Fifth Circuit

in Duckett held:

Although Duckett [McGarrity] was present with the

conspirators at the airport, it is well settled that mere

presence is insufficient, without more, to sustain a con-

viction for conspiracy. United States v. Di Re, 332

U.S. 581, 593... (1948). There is no evidence that

Duckett {[McGarrity] ever touched the red suitcase

(the clothes bag], much less that he was aware of its

contents. The joint presence of the defendant and

the conspirators at the airport and the preexisting

relationship between the parties is insufficient alone

to prove beyond a reasonable doubt that defendant

had a part in the conspiracy. Cf. United States v.

Duke, 423 F. 2d 387 (5th Cir. 1970). Thus the fact

that Duckett approached Gray and Gaston for a key,

and that Gaston possessed papers with both Duckett’s

true name and alias do not provide a legitimate basis

for inferring his participation in a conspiracy to im-

port heroin. Cf. United States v. Cantu, 504 F. 2d

$87 (5th Cir. 1974).

The fact that Duckett [McGarrity] was using an alias

is suspicious, but it is, without more, equally consistent

with a variety of explanations. ... Finally, the testi-

™ mony that he [McGarrity] had been in Gray's home

(the airplane] when heroin was present can only be

considered as showing a long-standing acquaintance-

ship with Gray, since there was no testimony that

Duckett [McGarrity] had seen or been aware of the

heroin at the time.

From this review of the evidence concerning Duckett's

[McGarrity’s] activities on the day [days] in question,

it is clear that the jurors should have entertained a

reasonable doubt about his guilt. While his course of

conduct is odd, and perhaps difficult to explain [Mc-

Garrity’s course of conduct was neither nor diffi-

cult to explain], the links between Duckett [McGarri-

ty] and the conspiracy are so tenuous that, making all

‘reasonable inferences and credibility choices as will

support’ the guilty verdict, United States v. Wayman,

510 F. 2d 1020, 1026 (5th Cir.) , cert. denied, 423 US.

846... (1975), we conclude that no reasonable mind

could find guilt beyond a reasonable doubt. 550 F.

2d, at 1030-1031.

The conclusion is mandated that such significant and

recurring problems need be resolved. These conflicts and

the interest of justice demand uniformity and guidance

by this Court. For these reasons a writ of certiorari should

issue to review the judgment and opinion of the Fifth

Circuit.

Ill.

THE DECISION BY THE COURT BELOW

THAT UNRECORDED BENCH CONFERENCES

CONSTITUTE HARMLESS ERROR IS AN ER-

RONEOUS DETERMINATION OF AN IMPOR-

TANT QUESTION OF FEDERAL LAW WHICH

HAS NOT BEEN BUT SHOULD BE SETTLED

BY THIS COURT.

The Court Reporter Act, 58 Stat. 5 (1944), 28 U.S.C.

§ 753, was enacted after extensive effort by members of

both bench and bar concerned that no verbatim recording

of federal court proceedings was required by federal law.

The case of Miller v. United States, 317 U.S. 192 (1942),

which involved the construction of the exception to the »

federal kidnapping statute “in the case of a minor, by

a parent thereof,” provided a major impetus for enactment

of the Court Reporter Act. See Poole v. United States,

250 F. 2d 396, 399 (D.C. Cir. 1957). This Court, instead

of dealing with the exception provision, remanded the case

for preparation of a bill of exceptions by the court of

appeals. The Court observed that:

There is no law of the United States creating the

position of official court stenographer and none re-

quiring the stenographic report of any case, civil or

criminal. .. .

At the instance o fthe Conference of Senior Circuit

Judges, legislation has been introduced in Congress to

provide an official system of reporting and to defray

the cost of it. That legislation . . . will, if adopted,

obviate the difficulties presented in this case. 317

US., at 197.

The Court Reporter Act, enacted one year after the

Court decided Miller, specifically requires that:

One of the reporters . . . shall attend at each session

of the court and at every other proceeding designated

by rule or order of the court or by one of the judges,

and shall record verbatim by shorthand or by mechan-

ical means ... (1) all proceedings in criminal cases

had in open court. 28 U.S.C. §753(b). (Emphasis

added.)

This statute imposes a mandatory obligation on the court

reporter to make a verbatim transcript of all proceedings

in criminal cases — an obligation that cannot be waived by

either the court or the parties. This is clear from (1)

the mandatory and comprehensive language of the provi-

sion (shall — all), (2) the explicit authorization for waiver

in non-criminal cases by the parties with the approval of

the judge, 28 U.S.C. § 753 (b) (2), amd (3) the legislative

history. As to the latter, the pertinent House Report states

that “all proceedings in criminal cases, whether in connec-

tion with plea, trial, or sentence are to be recorded.”” H.R.

Rep. No. 868, 78th Cong., Ist Sess. 6 (1943). See also

Hearings before the Senate Committee on the Judiciary

on S. 620, 78th Cong., Ist Sess. 31 (1943) ; 89 Cong. Rec.

10,873 (1943).

Strict compliance with the mandatory verbatim record-

ing requirement of § 753(b) not only enables counsel to

demonstrate exactly what transpired at the trial, but where,

as here, different counsel take the appeal of a case, the

verbatim transcript is the only mans of assuring that the

appellate counsel and the appellate court are accurately

apprised of the proceedings below. See United States v.

Upshaw, 448 F. 2d 1218, 1223 (5th Cir. 1971), cert. den.

405 U.S. 934 (1972). In Upshaw, where the opening and

closing statements of defense counsel were not recorded in

accordance with a local rule, the court reversed the defen-

dant’s conviction for lack of a complete transcript since the

State had not demonstrated that “‘no substantial rights of

the [defendant] were adversely affected by [the] omissions

.... 448 F. 2d, at 1224. The court in Upshaw also noted

that:

Since compliance with the Act is not difficult and the

transcript is of crucial importance to the defendant

(and to the appellate court for meaningful review) ,

exceptions should be few and narrowly construed.

United States v. Workcuff, 137 U.S. App. D.C. 263,

422 F. 2d 700 (1970).

448 F. 2d, at 1223-24.

Another benefit derived from strict compliance with

§ 753 (b) is that it removes speculation about what trans-

pired and thereby eliminates costly extensive collateral

hearings attempting to reconstruct what was said. The

Fourth Circuit recently reversed a guilty plea determina-

tion because there was less than a complete record of the

hearing. The court observed that a “failure of strict com-

pliance [with § 753 (b)] on the part of the district judge,

the court reporter, or the court clerk . . . will only result in

unnecessary post-conviction hearings to determine what

was done when the most accurate record is a transcript of

what actually took place.” Herron v. United States, 512

F. 2d 439, 441 (4th Cir. 1975).

In Petitioner’s case, the court reporter failed to record

several bench conferences. One conference occurred at

the commencement of the trial (Tr. 11) and the other

toward the end of the Government's case (Tr. 196).

The failure of the reporter to provide a verbatim record

of these bench conferences is especially significant since the

second occasion when this happened was at the conclusion

of the crucial testimony of a Government witness. (Tr.

196.) Without a verbatim record of bench conferences,

one can only speculate about what was said. This particu-

lar bench conference involved only the United States At-

torney and the Judge.

The relevant standard for assessment of this error pro-

pounded in United States v. Upshaw, 448 F. 2d 1218, 1224

(5th Cir. 1971):

The court must be able to say affirmatively that no

substantial rights of the appeilant were adversely af-

fected by the omissions from the transcript; that is,

it must exclude the possibility of any error other than

harmless error. (Emphasis added.)

The court below found failure to record bench confer-

ences error, but harmless because the context revealed that

at the second unrecorded bench conference the only “rea-

sonable conclusion” was that the judge had learned about

a stipulation and that the Government was not prepared

to call a witness in lieu of a chemist. (Appendix, page

7a.) We note the following:

(1) The record does not support the “reasonable con-

clusion of the court. The information the court infers the

judge obtained during the bench conference was available

from the events during the trial prior to the bench confer-

ence, (Tr. 184) and, in fact, after the conference the court

asked the Government to call its next witness. (Tr. 197.)

(2) The test of Upshaw requires exclusion of the possi-

bility of error, not a demonstration that some harmless

matters were discussed at the bench conference. For all

we know, the District Court may have taken an adversarial

stance during the two bench conferences making sugges-

tions to the United States Attorney about the sufficiency of

the evidence, which would certainly pose a serious threat

to the right to an impartial and disinterested judge. See

In re Murchison, 349 U.S. 133 (1955); Ward v. Village of

Monroeville, 409 U.S. 57 (1972).

(3) The court ignored the existence of the first bench

conference, which it never justified. The Government at-

tempted to justify both conferences by contending that

defense counsel was present. That, of course, cannot justify

unrecorded bench conferences, especially in view of the

defendant's need to know exactly what his counsel (his

assistant) is doing on his behalf. See Faretta v. California,

422 U.S. 806, 816 (1975). Without a record of his coun-

sel’s performance, how could a defendant substantiate (or

even know about) ineffective assistance of counsel?

The Courts of Appeals have not uniformly interpreted

the Court Reporter Act. Some courts have held the re-

sponsibility for making sure court proceedings in criminal

cases are recorded rests with counsel. United States v.

Ross, 477 F. 2d 551 (6th Cir. 1973), cert. denied sub

nomme Sain v. United States, 414 U.S. 912 (1973). Others

stress that it is the court that has the responsibility to

require compliance with the Act. Parrott v. United States,

314 F. 2d 46, 47 (10th Cir. 1973). In Parrott, the court

correctly concluded, contrary to the holding below in the

instant case, that without a record it is impossible to deter-

mine whether the error is harmless. Such a conclusion

appears eminently reasonable since the lack of the record

precludes proof of error by the very means the Court Re-

porter Act provides to demonstrate what occurred.

Petitioner submits that this important question of fed-

eral law should now be resolved by this Court.

IV.

THE DETERMINATION BELOW THAT IT IS

PERMISSIBLE FOR AN APPELLATE JUDGE TO

DECIDE A CASE INVOLVING A MATTER IN

WHICH HE APPEARS PREJUDICED IS IN CON-

FLICT WITH APPLICABLE DECISIONS OF

THIS COURT.

It is, of course, axiomatic that Petitioner is entitled to

a fair, impartial and unbiased panel where appeal is given.

For “nothing can be more elusive of estimate or decision

than a disposition of a mind in which there is a personal

ingredient.” Berger v. United States, 255 U.S. 22, 36

(1921). Hence, “‘our system of law has always endeavored

to prevent even the probability of unfairness.” In re

Murchison, 349 U.S. 133, 136 (1955). (Emphasis added.)

This is required because “justice must satisfy the appear-

ance of justice.” Offutt v. United States, 348 U.S. 11, 14

(1954) .

Every procedure which would offer a possible tempta-

tion to the average man as a judge to forget the burden

of proof required to convict the defendant, or which

might lead him not to hold the balance nice, clear and

true between the State and the accused, denies the

latter due process of law. Tumey v. Ohio, 273 US.

510, 582 (1927). (Emphasis added.)

This test was reaffirmed in Ward v. Village of Monroe-

ville, 409 U.S. 57, 60 (1972). Petitioner contends that this

test was not met since Circuit Judge Clark sat on the

panel deciding the appeal of his alleged co-conspirator, Paul

L. Montgomery, in United States v. Montgomery, 554 F.

2d 754 (5th Cir. 1977), rehearing denied, 558 F. 2d 311

(5th Cir. 1977). In Montgomery, the panel, in an opinion

authored by Judge Clark, concluded:

[T]he conspiracy conviction can still stand if there ex-

ists an adequate evidentiary basis for a finding that a

conspiracy existed with McGarrity alone. United

States v. Lance, 536 F. 2d 1065 (5th Cir. 1976) ;

United States v. Cabrera, 447 F. 2d 956 (5th Cir.

1971). McGarrity’s use of an alias, his knowledge of

both Montgomery’s actual name and address and his

alias, coupled with his presence with Montgomery

through much of this episode constitute sufficient evi-

dence of conspiracy. United States v. Evers, supra;

see United States v. Reynolds, 511 F. 2d 603 (5th Cir.

1975). The status of Swartz as a conspirator is not

the focus of our decision. The evidence that Mont-

gomery conspired with McGarrity was much stronger

than the evidence that Montgomery conspired with

Swartz. Although we have held that the jury could

not have convicted Montgomery for conspiring with

Swartz, they could have believed Montgomery con-

spired with McGarrity. That is enough. 554 F. 2d,

at 756.

Here embodied in a published opinion is Judge Clark’s

assessment of the Montgomery-McGarrity conspiratorial

relationship. Commenting on the propriety of a judge

hearing an appeal from the decision of a case or issue tried

below by him, Walter Hill observed:

Such an appeal is not from Phillip drunk to Phillip

sober, but from Phillip sober to Phillip intoxicated

with the vanity of a matured opinion and doubtless

also a published decision. Hill, Address to the Amer-

ican Bar Association, 12 A.B.A. Rep. 289, 307 (1889).

In the instant case, the panel consisted of Judges Thorn-

berry, Clark, and Hill. Although the opinion is authored

by Judge Hill, and is unanimous, if Petitioner is correct in

his assessment of probability of bias, then the panel is an

improperly constituted tribunal since the Petitioner is en-

titled to a determination by three impartial judges. See

Glidden v. Zdanok, 370 U.S. 530 (1962), rehearing de-

nied, 371 U.S. 854 (1962).

It is not surprising to discover that Petitioner's panel,

although admitting that the evidence in the Montgomery

case was not to be considered in Petitioner’s case, concluded

in a parallel manner to the Montgomery panel:

As in the Montgomery case, the record now before us

discloses that McGarrity used an alias during the

events which led to his arrest. He was present with

Montgomery through almost all of the events sur-

rounding the acquisition of the heroin by Montgom-

ery. Furthermore, immediately after the arrest Mc-

Garrity said to the arresting officer that he had only

just met Montgomery and Swartz (to whom he re-

ferred by their aliases) at the El Paso Rodeway Inn

and had merely offered to give them a ride in his

private airplane from E] Paso, Texas to Detroit, Mich-

igan.

We find that there was substantial evidence from

which the jury would conclude that this exculpatory

statement was false, it appearing that McGarrity had,

on his person, the correct name and the correct busi-

ness and residence address of Montgomery in Detroit,

Michigan. Further, he had on his person a writing

setting out Montgomery’s alias, the telephone number

of the Rodeway Inn where he was staying while mak-

ing the heroin transaction, and Montgomery’s room

number and telephone extension there. All of the

circumstances, coupled with a finding that the defen-

dant gave a false exculpatory statement formed a

sufficient basis for the jury’s conclusion that McGar-

rity was a conspirator with Montgomery. United

States v. Johnson, 513 F. 2d 819 (2d Cir. 1975):

United States v. Sutherland. 463 F. 2d 641 (5th Cir.

1972) , cert. denied, 409 U.S. 1078, 98 S. Ct. 698, 34

L.Ed. 2d 668 (1972). (Appendix, page 5a.)

Of course, this conclusion, given the facts, is, as noted

above, completely antipodal to the decision of the court

in United States v. Duckett, 550 F. 2d 1027 (5th Cir. 1977) .

Petitioner respectfully urges that Judge Clark’s Mont-

gomery decision creates a high probability of inducing a

“Tumey temptation” to forget “the burden of proof re-

quired to convict the defendant.” Tumey, supra, at 532.

This conclusion is buttressed by noting that all the afore-

mentioned evidentiary factors were insufficient in Duckett

and also in United States v. Salinas-Salinas, 555 F. 2d 479

(5th Cir. 1977). There the court held, at 473:

The essential elements of a criminal conspiracy are

an agreement among the conspirators to commit an

offense against the United States and an overt act by

one of them in furtherance of the agreement. United

States v. Isaacs, 5 Cir. 1975, 516 F. 2d 409, cert. den.,

423 U.S. 936, 96 S. Ct. 295, 46 L. Ed. 2d 269. The

government must prove beyond a reasonable doubt

that a conspiracy existed, that the accused knew of

it, and with that knowledge intentionally did some-

thing to further or carry on that conspiracy. Causey

v. United States, 5 Cir. 1965, 352 F. 2d 203.

Quite obviously there was a conspiracy and conspira-

tors, never identified, were observed at the scene. The

problem is whether there was adequate proof to con-

nect this defendant with the conspiracy. Mere presence

at the scene of a crime is insufficient to establish par-

ticipation. United States v. Falcone, 311 US. 205, 61

S. Ct. 204, 85 L. Ed. 128 (1940); United States v.

Owen, 5 Cir. 1974, 492 F. 2d 1100, cert. den., 419 US.

965, 95 S. Ct. 227, 42 L. Ed. 2d 180.

Further, Judge Clark’s “slight evidence test,” as noted

above, misses the mark. Perhaps the ““Tumey temptation”

caused misapplication of the standard, for the standard

should not be “slight evidence.” Obviously, a precon-

ceived notion of Montgomery's guilt could cause misap-

plication of the proper test. Petitioner contends that where

issues of fact and law are as inexplicably intertwined as

in the Montgomery-McGarrity cases, Judge Clark should

have recognized the ‘““Tumey temptation” and recused

himself. See Berger v. United States, 255 U.S. 22 (1921) ;

In re Grand Jury Proceedings, 559 F. 2d 234, 237 (5th

Cir. 1977). For, as Mr. Justice Frankfurter so eloquently

put it:

The judicial process demands that a judge move with-

in the framework of relevant legal rules and the cove-

nanted modes of thought for ascertaining them. He

must think dispassionately and submerge private feel-

ing on every aspect of a case. There is a good deal of

shallow talk that the judicial robe does not change the

man within it. It does. The fact is that on the whole

judges do lay aside private views in discharging their

judicial functions. This is achieved through training,

professional habits, self-discipline and that fortunate

alchemy by which men are loyal to the obligation with

which they are entrusted. But it is also true that

reason cannot control the subconscious influence of

feelings of which it is unaware. Where there is

ground for believing that such unconscious feelings

may operate in the ultimate judgment, or may not

unfairly lead others to believe they are operating,

judges recuse themselves. They do not sit in judg-

ment. They do this for a variety of reasons. The

guiding consideration is that the administration of

Justice should reasonably appear to be disinterested

as well as be so in fact. Utilities Comm. v. Pollak,

343 U.S. 451, 466-467 (1952).

It must be remembered that judicial officers “do not stand

aloof on these chill and distant heights; and we shall not

help the cause of truth by acting and speaking as if they

do.” B. Cardozo, The Nature of the Judicial Process, 168

(1921).

Judge Clark’s inadvertent use of the wrong test and

apparent inability to objectively decide Petitioner's case

demanded recusal.

Any justice, judge, magistrate or referee in bankruptcy

of the United States shall disqualify himself in any

roceeding in which his im rtiality might reasonably

questioned. 28 U.S.C. § 455 (a).

Petitioner contends that it is quite reasonable to assume

that Judge Clark succumbed to the ‘““Tumey temptation,”

for a finding of insufficiency as to him would appear to

conflict with Clark’s Montgomery decision. The situation

demanded recusal; this conflict causing a great appearance

of impropriety. The question is of great importance for

fair administration of justice and justifies the grant of

certiorari to review the judgment below.

CONCLUSION

For these reasons, a writ of certiorari should issue to

review the judgment and opinion of the Fifth Circuit.

Respectfully submitted,

OVID C. LEWIS

Chase Law School

1401 Dixie Highway

Covington, Kentucky 41011

Counsel for Petitioner

APPENDIX

OPINION OF THE COURT OF APPEALS

(Filed October 3, 1977)

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

vs.

THOMAS HAMLIN McGARRITY, JR.,

Defendant-Appellant.

No. 76-3744

Summary Calendar.*

United States Court of Appeals, Fifth Circuit.

Oct. 3, 1977.

The United States District Court for the Western Dis-

trict of Texas, William S. Sessions, J., convicted defendant

of conspiracy to possess heroin with inteni to distribute,

and defendant appealed. The Court of Appeals, James C.

Hill, Circuit Judge, held that: (1) search of private air-

craft and subsequent seizure of heroin found therein were

lawful; (2) evidence was sufficient to sustain conviction,

and (3) failure of court reporter to record discussion at

bench did not warrant reversal of conviction.

Affirmed.

* Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co.

of New York et al., 5 Cir., 1970, 431 F.2d 409.

1. Drugs and Narcotics

Tip to narcotics agent from confidential informant pro-

vided probable cause for warrantless search of aircraft, and

thus search of private aircraft and subsequent seizure of

heroin contained therein were lawful.

2. Judgment

In prosecution for conspiracy to possess heroin with in-

tent to distribute the same, court could not defer to conclu-

sion of court in separate prosecution of co-conspirator con-

cerning sufficiency of evidence to sustain conspiracy con-

viction, but, rather, court’s inquiry had to be directed to

evidence in defendant's separate trial.

3. Conspiracy

Evidence was sufficient to sustain conviction of conspira-

cy to possess heroin with intent to distribute the same.

Comprehensive Drug Abuse Prevention and Control Act

of 1970, § 406, 21 U.S.C.A. § 846.

4. Criminal Law

While failure of record to contain verbatim report of all

proceedings in open court could not be approved, failure

of record to contain verbatim report of discussion at bench

was harmless error in prosecution for conspiracy to possess

heroin with intent to distribute the same, in view of fact

that transcript indicated that discussion resulted in stipu-

lation concerning testimony of government chemist and

did not result in any prejudice to the defendant. 28

U.S.C.A. § 753 (b) .

Appeal from the United States District Court for the

Western District of Texas.

Before THORNBERRY, CLARK and HILL, Circuit

Judges.

JAMES C. HILL, Circuit Judge:

Thomas Hamlin McGarrity, Jr., appellant, was charged

in a three-count indictment of (1) conspiracy to possess

heroin with intent to distribute the same in violation of

21 U.S.C.A. § 846;' (2) importing heroin into the United

States from Mexico in violation of 21 U.S.C.A. § 952 (a) (1)

and 960 (a) (1)? and (3) possession of heroin with intent

to distribute in violation of 21 U.S.C.A. § 841 (a) (1) .*

1 § 846. Attempt and conspiracy

Any person who attempts or conspires to commit any offense defined

in this subchapter is punishable by imprisonment or fine or both which

may not exceed the maximum punishment prescribed for the offense,

the commission of which was the object of the attempt or conspiracy.

2§952. Importation of controlled substances

(a) It shall be unlawful to import into the customs territory of the

United States from any place outside thereof (but within the United

States), or to import into the United States from any place outside

thereof, any controlled substance in schedule I or II of subchapter I

of this chapter, or any narcotic drug in schedule III, IV, or V of

subchapter I of this chapter, except that—

eo e eo

§ 960. Prohibited acts A—Unlawful acts

(a) Any person who—

(1) contrary to section 952, 953, or 957 of this title, knowingly or

intentionally imports or exports a controlled substance . . . shall be

punished as provided in subsection (b) of this section.

@ 6 e

3$841. Prohibited acts A—Unlawful acts

(a) Except as authorized by this subchapter, it shall be unlawful for

any person knowingly or intentionally—

(1) to manufacture, distribute, or dispense, or possess with intent

to manufacture, distribute, or dispense, a controlled substance;

After jury trial in the Western District of Texas, El Paso

Division, appellant was convicted of the charges in Count

I of the indictment and brings this appeal. The Govern-

ment had dismissed Count II, and the jury found Appellant

not guilty of the charge in Count III.

The original indictment contained charges against two

co-defendants, Paul L. Montgomery and Ruby Swartz.

Prior to trial, a motion to sever was granted so that McGar-

rity and Montgomery were tried separately. Ultimately,

the Government's motion to dismiss the indictment as to

Swartz was granted.

[1] Prior to the severance, a single hearing had been

held on a motion of both McGarrity and Montgomery to

suppress evidence discovered and seized during the search

of McGarrity’s private aircraft. The trial court denied

that motion. Thereafter, trial proceeded in the case

against Montgomery who, having been found guilty of con-

spiracy and the substantive offense of possession with intent

to distribute, appealed to this Court. The conviction was

affirmed by another panel of this Court in the case of

United States v. Montgomery, 554 F.2d 754, petition for

rehearing denied, 558 F.2d 311 (5 Cir. 1977). After care-

ful and independent review of the record of the suppression

hearing and of the arguments advanced on behalf of Mc-

Garrity in the instant appeal, we conclude, as did this Court

in the Montgomery case, that the search and subsequent

seizure of the heroin was lawful for the reasons stated in

Montgomery.

[2] Appellant McGarrity also asserts that the evidence

adduced by the Government was insufficient to support

his conviction for conspiracy. As stated above, the record

of the trial of McGarrity is totally distinct from the record

reviewed by this Court in Montgomery inasmuch as the

trials were separate. Thus, even though the Court in

Montgomery found it necessary to determine whether or

not there was sufficient evidence against Montgomery to

support his conviction of having conspired with McGarrity,

we cannot defer to the Court’s conclusion on that subject

in Montgomery because‘the issue presented is the sufficiency

of the evidence and, thus, our inquiry must be directed to

the evidence in the separate McGarrity trial.

[3] As in the Montgomery case, the record now before

us discloses that McGarrity used an alias during the events

which led to his arrest. He was present with Montgomery

through almost all of the events surrounding the acquisi-

tion of the heroin by Montgomery. Furthermore, imme-

diately after the arrest McGarrity said to the arresting

officer that he had only just met Montgomery and Swartz

(to whom he referred by their aliases) at the El] Paso Rode-

way Inn and had merely offered to give them a ride in his

private airplane from El Paso, Texas to Detroit, Michigan.

We find that there was substantial evidence from which

the jury would conclude that this exculpatory statement

was false, it appearing that McGarrity had, on his person,

the correct name and the correct business and residence

address of Montgomery in Detroit, Michigan. Further, he

had on his person a writing setting out Montgomery’s alias,

the telephone number of the Rodeway Inn where he was

staying while making the heroin transaction, and Mont-

gomery’s room number and telephone extension there. All

of the circumstances, coupled with a finding that the defen-

dant gave a false exculpatory statement formed a sufficient

basis for the jury’s conclusion that McGarrity was a con-

spirator with Montgomery. United States v. Johnson, 513

F.2d 819 (2d Cir. 1975) ; United States v. Sutherland, 463

F.2d 641 (5th Cir. 1972), cert. denied, 409 U.S. 1078, 93

S.Ct. 698, 34 L.Ed.2d 668 (1972).

[4] Appellant further complains that, at a point during

the trial, near the close of the Government's case, counsel

for the Government asked the trial judge, “May I approach

the bench, Your Honor?’ after which there is an entry

reading “‘ (discussion at the bench off the record.) .”

Appellant cites 28 U.S.C.A. § 753 (b) as requiring that

all proceedings be recorded verbatim by the court reporter

and urges that the failure of the record to contain the ver-

batim transcript of the “discussion” at the bench requires

a reversal of this conviction.

In United States v. Upshaw, 448 F.2d 1218 (5th Cir.

1971), cert. denied, 405 U.S. 934, 92 S.Ct. 970, 30 L.Ed.2d

810 (1972), this Court reversed the defendant's conviction

because the opening and closing statements of defense

counsel had not been recorded, taken down, or transcribed.

In Upshaw the Court instructed that “. . . exceptions

should be few and narrowly construed.”

We view this case as such an exception. While we do

not endorse the failure of the record to contain a verbatim

report of all proceedings in open court, we find the omis-

sion of such information in this case to be harmless. Cal-

houn v. United States, 384 F.2d 180 (5th Cir. 1967) ;

Burns v. United States, 323 F.2d 269 (5th Cir. 1963) , cert.

denied, 376 U.S. 907, 84 S.Ct. 660, 11 L.Ed.2d 606 (1964).

The record shows that, at a few minutes before 4:00 p.m.,

counsel had completed the examination and cross-examina-

tion of a Government witness. It was at that point that

Government counsel asked permission to approach the

bench and the unreported discussion with the judge took

place. Immediately thereafter, counsel for the Govern-

ment announced, on the record, that he and the defense

had arrived at a stipulation which would make it unneces-

sary to examine a government chemist. Then a stipula-

tion that a substance seized from the aircraft and found

to be heroin was read into the record. With the proceed-

ings thus foreshortened, counsel for the Government had

no other witness available that afternoon. Thereupon, the

judge announced to the jury that he had only just been

informed that, by diligent and proper effort, counsel for

the parties had been able to reach the stipulation and that,

at that point, the Government was not prepared to call ad-

ditional witnesses. This explanation was obviously given

to the jurors so that they would understand why the judge

was going to recess the trial at an early hour to be re-

sumed on the following morning.

It is abundantly clear from a review of the entire tran-

script that, at the moment he asked to approach the bench,

counsel for the Government was in a position to shorten

the trial proceedings by the stipulation. Yet, the Court

had not been informed that this could be done. Had the

chemist been called as a witness his examination and cross-

examination would have consumed the remainder of the

afternoon session. After the reading of the stipulation

and short instructions to the jury governing their treatment

of it, the judge announced to the jury that he had just

learned of the availability of the stipulation and that the

Government was not prepared to call a witness in lieu of

the chemist. There is no entry in the transcript disclosing

an opportunity for the judge to have learned these things

except during the unrecorded exchange between the judge

and Government counsel which immediately preceded the

events here discussed. The inference is inescapable that the

judge learned of this constructive development in the pre-

sentation of the trial during that exchange. There being

no other reasonable conclusion to draw from the record

as a whole and there being nothing to indicate that any

prejudice resulted to the defendant or to the ability of

this Court adequately to review the proceedings in the

trial court, we hold that the failure of the record to contain

a verbatim transcript of that discussion to be harmless.

The search of the aircraft having been lawful, the in-

troduction of the heroin thus discovered and seized was

proper. There having been sufficient evidence of the ex-

istence of a conspiracy and McGarrity having been a part

of it, judgment of the District Court is

AFFIRMED.

JUDGMENT OF THE COURT OF APPEALS

(Filed October 3, 1977)

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 76-3744

Summary Calendar

D. C. Docket No. EP-76-CR-108

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

THOMAS HAMLIN McGARRITY, JR.,

Defendant-Appellant.

Appeal from the United States District Court for the

Western District of Texas

Before THORNBERRY, CLARK and HILL, Circuit

Judges.

JUDGMENT

This cause came on to be heard on the transcript of

the record from the United States District Court for the

Western District of Texas, and was taken under submission

10a

by the Court upon the record and briefs on file, pursuant

to Rule 18;

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court that the judgment of

the said District Court in this cause be, and the same is

hereby, affirmed.

October 3, 1977

Issued as Mandate:

DENIAL OF PETITION FOR REHEARING

(Filed November 7, 1977)

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

OFFICE OF THE CLERK

Edward W. Wadsworth, Clerk

Tel 504-539-6514

600 Camp Street

New Orleans, La. 70130

November 7, 1977

TO ALL PARTIES LISTED BELOW:

NO. 76-3744 —

U.S.A. v. THOMAS HAMLIN McGARRITY, JR.

lla

Dear Counsel:

This is to advise that an order has this day been entered

denying the petition( ) for rehearing,** and no mem-

ber of the panel nor Judge in regular active service on

the Court having requested that the Court be polled on

rehearing en banc (Rule 35, Federal Rules of Appellate

Procedure; Local Fifth Circuit Rule 12) the petition ( )

for rehearing en banc has also been denied.

See Rule 41, Federal Rules of Appellate Procedure for

issuance and stay of the mandate.

Very truly yours,

EDWARD K. WADSWORTH, Clerk

By /s/ BRENDA M. HAUCK

Deputy Clerk

** on behalf of appellee, U. S. A.,

cc: Mr. Ovid C. Lewis

Mr. Frank B. Walker

12a

DENIAL OF MOTION FOR REMAND

(Filed December 16, 1977)

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 76-3744

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

THOMAS HAMLIN McGARRITY, JR.,

Defendant-Appellant.

Appeal from the United States District Court for the

Western District of Texas

Before THORNBERRY, CLARK and HILL, Circuit

Judges.

BY THE COURT:—

IT IS ORDERED that appellant’s motion for remand of

this cause to the United States District Court for filing of

a motion for new trial, and for recall and stay of execu-

tion of mandate pending determination of motion for new

trial by the district court, is DENIED.

13a

SUPREME COURT OF THE UNITED STATES

No. A-468

THOMAS HAMLIN McGARRITY, JR.,

Petitioner,

Vv.

UNITED STATES

ORDER EXTENDING TIME TO FILE PETITION

FOR WRIT OF CERTIORARI

Upon ConsiDERATION of the application of counsel for

petitioner,

It Is OrpEReED that the time for filing a petition for writ

of certiorari in the above-entitled cause be, and the same

is hereby, extended to and including January 6, 1978.

/s/ LEWIS F. POWELL, JR.

Associate Justice of the Supreme

Court of the United States

Dated this 29 day of November, 1977.

l4a

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

No.

THOMAS HAMLIN McGARRITY, JR.,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

CERTIFICATE OF SERVICE

I hereby certify that on this _ day of January, 1978,

three copies of the Petition for Writ of Certiorari were

mailed, postage prepaid, to the Solicitor General, Depart-

ment of Justice, Washington, D.C., 20530, Counsel for Re-

spondent. I further certify that all parties required to

be served have been served.

OVID C. LEWIS

1401 Dixie Highway

Covington, Kentucky 41011

COUNSEL FOR PETITIONER

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.