# Petition — McGarrity v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1978
- **Citation:** 434 U.S. 1087

## Text

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

I.

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 @

ll

1]

26

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) ................

v.
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,

23

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.

2

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

4

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

5

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-

6

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

7

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-

8

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-

9

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

10

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
I.

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

12

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

13

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.

14

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-

15

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

16

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,

17

[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).

18

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.

19

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

20

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

21

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

22

(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

y

23

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

24

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

25

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.

26

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:

27

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,

29

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

30

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.

$1

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:

32

[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-

33

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.)

34

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-

35

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).

36

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.

la

2a
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.

$a

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;

4a

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

5a

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

6a

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

7a

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.

9a

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,
v.
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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0311%3A1. Public record. Not legal advice.