Petition for Writ of Certiorari — Smith v. United States

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Cv 83-1929 FILED

MAR 5 saga

NO.

Office - Supreme Court, U.S

. ALEXAND

esse clita caaaml ER L STEVAS

t LCERK

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1983

JAMES GREGORY SMITH,

Petitioner

vs.

UNITED STATES OF AMERICA,

Respondent

ROBERT SHINGLE SPEIR,

Petitioner

vs.

UNITED STATES OF AMERICA,

Respondent

PETITION FOR WRIT OF CERTIORAR: TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Don Ervin

1717 South Shepherd

Houston, Texas 77019

713/526-2131

Attorney for Petitioner

James Gregory Smith

Clifton L. Holmes

422 North Center Street

Longview, Texas 75601

214/758-2200

Attorney for Peiitioner

Roberi Shingle Speir

QUESTIONS PRESENTED FOR REVIEW

Whether Rule 41 of the Federal Rules of Criminal Pro

cedure, Title 18, United States Code, authorizes the is

suance of a search warrant upon the sworn affidavit of an |

investigator of the Texas Department of Public Safety?

Whether an affidavit containing insufficient as-

sertions of personal knowledge from the “cooperating in-

dividual”, unsupported conclusions of the affiant; no cor-

roboration of the meager information received; and no

showing of why the cooperating individual is credible or

his information reliable (and not even such a claim), is suf-

ficient to establish probable cause for the issuance of a

search warrant (or order authorizing installation of an

electronic tracking device) under the “totality of cir-

cumstances” test of lilinois v. Gates?

-ii-

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW .........--

OPINIONS BELOW ..... 2.2... cece eee eee eee eeees 2

JURISDICTION . 0... ccc cc cee cece cnet tent tent eens 2

CONSTITUTIONAL PROVISIONS INVOLVED....... 3

STATUTORY PROVISIONS INVOLVED ........-.--- 3

STATEMENT OF THE CASE .......------seeeeeeees 3

CONCLUBION, .o.c.ccccccescsccseccccceseeeeececes 16

CERTIFICATE OF SERVICE ........ Rete ved tle pig hee 17

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TABLE OF AUTHORITIES

CASES: Page

lilinois v. Gates, 103 S.Ct. 2317 (1983)......... 13, 15, 16

Rogers v. Frito-Lay, 611 F.2d 1074

EE 6

Town of Highland Park v. Marshall,

235 S.W.2d 658 (Tex. Civ.App.1950)......... 14

United States v. Butts, 710 F.2d 1139

a 13, 15

United States v. Kolodziej, 712 F.2d 975

ES 15

United States Constitution,

Fourth Amendment....................... 3, 15

18 United States Code,

CE 2.3

Federal Rules Criminal Procedure,

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21 United States Code,

Sec. 841(a)(1)

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49 United States Code,

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49 Code Federal Regulations,

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Chapter 20, Federal Aviation Program........

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IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1983

No.

JAMES GREGORY SMITH,

Petitioner

vs.

UNITED STATES OF AMERICA,

Respondent

ROBERT SHINGLE SPEIR,

Petitioner

vs.

UNITED STATES OF AMERICA,

Respondent

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH

The Petitioners, JAMES GREGORY SMITH and

ROBERT SHINGLE SPEIR, respectfully pray that a writ of

certiorari issue to review the judgments of the United

States Court of Appeals affirming their convictions and

the denial of the motion for rehearing entered December

8, 1983 and Je nuary 5, 1984, respectfully.

OPINIONS BELOW

The Court of Appeals entered its Memorandum af-

firming the convictions on December 8, 1983 (unreported),

and denied their motion for rehearing January 5, 1984. A

copy of each opinion is attached hereto as Appendix A

and B.

JURISDICTION

Petitioner's convictions on four counts of a five count

indictment charging conspiracy to: import marijuana in

violation of Secs. 952(a) and 960 of Title 21, United States

Code (USC); transport hazardous material (gasoline) in air

commerce in violation of Sec. 1472(h), Title 49 USC and 49

CFR Sec. 173.119; possess with intent to distribute mari

juana in violation of Sec. 841(a\1), Title 21 USC; carry a

firearm during the commission of a felony offense, to-wit

smuggling marijuana, in violation of Title 18, USC, Sec.

924(c). Count two charged the importation of marijuana in

violation of Title 21, USC, Secs. 952(a) and 960. Count

three charged transportation of a hazardous material in

air commerce in violation of Chapter 20 of the Federal

Aviation Program and Title 49, USC, Sec. 1472(h) and 49

CFR Sec. 173.119. Count four charged possession of mari

juana with intent to distribute in violation of Title 21, USC,

Sec. 841(a\1).

The jurisdiction of this Court is invoked under Title

28, USC, Section 1254(1).

» 9

CONSTITUTIONAL PROVISION INVOLVED

United States Constitution, Amendment IV. (See Ap

pendix)

STATORY PROVISIONS INVOLVED

Title 18, U.S.C. Sec. 924(c) and Rule 41, Federal Rules

of Criminal Procedure; Title 21, U.S.C. Secs. 841(a)1),

952(a), 960; Title 49, U.S.C. Secs. 1472(h), 1801, 1802, 1803,

1804, 1806, 1808, 1809; Title 49, Code of Federal Regula

tions, Sec. 173.119; Chapter 20, Federal Aviation Program.

(See Appendix)

STATEMENT OF THE CASE

On September 13, 1982 a two count information was

filed in the United States District Court for the Eastern

District of Texas. A superseding indictment containing

five counts was filed September 29, 1982. Count 1 charged

conspiracy, to import marijuana in violation of Secs.

952(a) and 960 of Title 21, U.S.C.; transporting hazardous

material (gasoline) in air commerce in violation of Sec.

1472(h, Title 49 U.S.C. and 49 CFR Sec. 173.119; to pos

sess with intent to distribute marijuana in violation of Sec.

841(aX1), Title 21 U.S.C.; to carry a firearm during the com

mission of a felony offense, to-wit smuygling marijuana

in violation of Sec. 924(c), Title 18 U.S.C. Count 2 charged

the importation of marijuana in violation of Secs. 952 (a)

and 960, Title 21. Count 3 charged transportation of a haz-

ardous material in air commerce in violation of Chapter 20

of the Federal Aviation Program and Title 49, U.S.C., Sec.

1472(h) and 49 CFR Sec. 173.119. Count 4 charged posses.

sion of marijuana with intent to distribute in violation of

Title 21, U.S.C., Sec. 841(aX1) (R.4, U.S.A. v. Smith. Count 5

was dismissed (R.52, U.S.A. v. Smith), and need not be

considered here. Petitioners waived their right to trial by

jury (R.29, U.S.A. v. Smith, R.10, U.S.A. v. Spein, and

7 r

entered into a stipulation with the government attorney

(R.40, U.S.A. v. Smith) in which the facts surrounding the

order for installation of the electronic tracking device and

subsequent events leading to the arrest of Petitioners and

the ensuing search of their aircraft. Paragraph 10 of the

stipulation provides: “That the contraband made the sub

ject of the indictments herein, and ali evidence offered in

support of the Government's cases, was seized and ob

tained as a result of the search made pursuant to the

Order referred to in paragraph 6, above (order authorizing

installation of a tracking device in Petitioners airplane)’.

Petitioners entered their pieas of not guilty and the Trial

Court made its Findings of the Court (R.53, U.S.A. v.

Smith, and entered judgment and assessed punishment

at five years on each of the four counts remaining before

the Court, to run concurrently, and with a special parole

term of two years (R.59, U.S.A. v. Smith). Notice of appeal!

was timely given (R.60, U.S.A. v. Smith, R.22, U.S.A. v.

Spein.

FACTS

Petitioners were arrested May 18, 1982 at the Upshur

County Airport in Gilmer, Texas. At the time of their arrest,

approximately 900 pounds of marijuana was seized, along

with evidence of other crimes for which Petitioners were

subsequently charged.

The aircraft which Petitioner Smith was piloting

when arrested had been the subject of a court order is

sued May 17, 1982, by Houston Abel, United States Magis

trate for the Eastern District of Texas. The order authoriz-

ed the entry of the aircraft for the installation of a tracking

device. The following day the aircraft, with the tracking

device operating, was detected by a remote automatic

sensing device at Port Isabel, Texas (UBAS). Information

was automaticaliy relayed to Sector Center, United States

Customs in Houston, Texas, and printed out on a paper

tape. The monitoring disclosed the aircraft traveling on a

southerly bearing for approximately 37 minutes before

turning east, then north.

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A Customs aircraft from the Kingsville Naval Air Sta-

tion was one of the airplanes sent to intercept the aircraft

detected by the monitoring. Customs Officer Alexander

was part of the crew. He had equipment he used to detect

the tracking device placed in the suspect aircraft. While

he was attempting to intercept the suspect aircraft, his in-

struments indicated the suspect aircraft passed in front

of him going in a northerly direction. Relying upon the in-

struments, he followed the aircraft until it landed at the

Upshur County Airport in Gilmer, Texas. As the aircraft

put on its landing lights for a final approach, Alexander

was able to visually observe the aircraft, which, according

to his instruments, he had been tracking from a point 40

miles in the Gulf of Mexico to Gilmer.

The Customs officers, officers from the Texas De

partment of Public Safety, Police Department of Gilmer

and the Upshur County Sheriff's Office were present at

the airport. When the plane landed one man was seen

leaving the aircraft in a van or pickup truck. As the officers

approached the aircraft another man was close to it. A

strong odor of marijuana was detected by the officers.

One of the chase planes landed and the aircraft was iden

tified as the one tracked by Alexander. Petitioners were

arrested at that time (R.12-15, U.S.A. v. Smith).

Petitioners filed their motion to suppress evidence

(R.3%, U.S.A. v. Smith, R12, U.S.A. v. Spein, and a

memorandum of law in suppc't of the motion to suppress

evidence was also filed (R.34, U.S.A. v. Smith). After a con

solidated hearing the motions were denied (R.33, U.S.A. v.

Smith, R.14, U.S.A. v. Speif. The motions challenged the

legality of the warrantless arrest, search and seizure,

which was made upon information obtained as a direct re

sult of utilizing the tracking device placed inside the air-

craft under authority of the order issued by the Magis

trate. The memorandum discussed the affidavit upon

which the installation order was issued as being .nsuf-

ficient to establish probable cause.

oe,

. 2

REASONS FOR GRANTING THE WRIT

The affidavit upon which the Magistrate’s Order was

issued is void on its face because the affiant is not one

who is authorized to seek such an order.

Rule 41, F.R.Cr.Proc., Title 18 U.S.C., sets forth the

procedure for obtaining warrants to search. This rule

authorizes the issuance of a search warrant, but only

“upon request of a federal law enforcement officer or an

attorney for the government.” Paragraph 1 of the affidavit

(R.45, U.S.A. v. Smith), clearly identifies the affiant as a

narcotics investigator with the Texas Department of Pub-

lic Safety. He makes no claim that he also has duties as a

federal law enforcement officer or an attorney for the

government.

Under the rules of statutory construction, when a

statute limits a thing to be done in a particular mode, it in

cludes the negative of any other mode and the courts

should not expand the coverage of the statute to subsume |

other modes. Rogers v. Frito-Lay, Inc., 611 F.2d 1074, |

1084-1085 (5th Cir. 1980). By specifying two distinct

classes of persons authorized to submit affidavits for

search warrants, all others are excluded. The Magistrate

was not authorized to consider the affidavit or to issue an

order thereon.

The Trial Court erred in not granting the motion to

suppress and the Court of Appeals erred in not reversing

the judgments of convictions.

The affidavit upon which the order authorizing the in

Stallation of the tracking device was issued states:

“TERRY W. LANKFORD, being first duly sworn, de

poses and says:

1. That | am a Narcotics Investigator with the Texas

Department of Public Safety assigned to Corpus

Christi, Texas. | have been so employed as a nar-

cotics investigator since January 1, 1980. My duti-

es aS a narcotics investigator include the detec

tion, identification and apprehension of narcotics

: Bi iad ash ate = eae Oe AAS ll Matt AV i aloo

Decl Gin dikincd stack Racin eis peta Sith oy é »

smuggling violators and narcotic smuggling orga-

nizations who utilize aircraft to facilitate their

smuggling activities. | have received specialized

training in these types of investigations.

“2.The affiant alleges that there is probable cause to

believe that aircraft bearing FAA number N4081L,

a twin engine Piper aircraft, serial number PA31-

8112038, being white with yellow, orange and

brown stripes will be utilized to commit offenses

as defined in 19 U.S. Code, Sections 1459 and

1460; being violations arising from the failure to

report and manifest goods imported into the

United States and 18 U.S. Code, Section 545; being

violations arising from bring into the United States

any merchandise contrary to Law and 21 U.S.

Code, Sections 952, 846 and 841(a\(1); being viola-

tions arising out of the smuggling and possession

with intent to distribute controlled substances in-

to and within the United States.

“3.The affiant states that the facts which establish

probable cause necessary for the issuance of an

order authorizing the installation and utilization of

electronic aircraft tracking equipment in the

above captioned aircraft is as follows:

A. On 5-16-82, affiant received information from a

cooperating individual that a Piper Navaho air-

craft, N4081L, had arrived at Chaparral Avia-

tion at the Corpus Christi International Airport

on 5-15-82 at approximately 10:00 pm. The

above mentioned aircraft was in need of fuel

and upon arrival was occupied by two (2) white

males. One (1) of the subjects was later iden

tified as James Gregory Smith. The coopera-

ting individual informed the affiant that Smith

and the other occupant of the aircraft wanted

to purchase fuel for the above described air-

craft and upon being advised that they would

have to wait until the next date for fuel Smith

and the unidentified subject left the airport on

foot and walked toward the main airport ter-

minal.

. The affiant was informed by a cooperating indi

vidual that on 05-16-82, at approximately 5:30

am, Smith and the same unidentified subject

returned to Chaparral Aviation for the purpose

of having the above mentioned aircraft refuel

ed. The cooperating individual, while refueling

the aircraft observed that all of the seats had

been removed from the aircraft with the excep

tion of the pilot and copilot seats. Removing

the rear seats from an aircraft to be utilized ina

narcotic smuggling operation is very common

in that the payload, or total cargo capacity is

increased to a maximum. The cooperating in

dividual further informed the affiant that while

refueling the aircraft, he was requested by

Smith to assist him (Smith) in fueling a two

hundred (200) gallon auxiliary fuel cell which

was located in the floor of the main cabin of

the aircraft. Smith was inside the aircraft and

requested that the cooperating individual re

main outside the aircraft and assist him

(Smith) by holding a ventilating hose, which

was connected to the utility fuel cell. The carry-

ing of extra fuel onboard an aircraft is a felony

in direct violation of Title 49, U.S.C. Section

1803 and 1809, which prohibits the transpor-

tation of hazardous materials onboard an air-

craft. This method of carrying auxiliary fuel on

an aircraft to be used in a smuggling operation

is very common in that it enables the aircraft to

be flown to such locations as Central and

South America and return to the United States

without a need for refueling. Based on ex-

perience as a narcotics investigator, the affiant

knows that Central and South America are the

most popular locations for smugglers to pur-

chase their narcotics.

SR ae ee ee en pee

C. The affiant inquired with the Federal Aviation

Administration in Oklahoma City and learned

that Piper Navajo, N4081L, was purchased on

01-19-82 in the name of C.V. Aviation, 2311

Federal Avenue, Seattle, Washington. informa-

tion received indicates that C.V. Aviation is

owned by Carl M. Gritzmaker and Vern L. Ra-

burn. No current intelligence data exists on

Gritzmaker or Raburn at the present time.

. Suspect James Gregory Smith is known to the

Affiant to be a documented narcotics smuggler

who utilizes aircraft in his (Smith's) smuggling

operation. Smith is currently the target of a

separate investigation being conducted by the

Texas Department of Public Safety, Narcotics

Service in Corpus Christi, Texas. The Affiant

learned through his separate investigation that

Smith is the owner of a twin engine Beechcraft

Queen Air, N36S and he (Smith) is currently

having an aircraft hangar constructed at the

Aransas County Airport in Rockport, Texas.

Smith stated to a cooperating individual that

the reason for having the hangar built in Aran

sas county and not in Corpus Christi (Smith's

residence) is because there are too many

“Feds” (federal agents) in the Corpus Christi,

Texas area.

. The Affiant also learned through a cooperating

individual that Smith has been presenting him

self as a “high roller’. Smith elaborated further

as having associates in Nevada and Florida

and that he (Smith) was accustomed to paying

large sums of money “under the table” in order

to get what he (Smith) wants.

. The Affiant learned that all work performed on

Beechcraft aircraft, N36S, while at the Aransas

County Airport was done in the name of Mag

num Aviation, Inc. The Affiant overheard Smith

tell the employees at Chaparral Aviation on

. ©

05-16-82 that he (Smith) is the owner of Mag

num Aviation, Inc., located at 710 Buffalo

Street, in Corpus Christi, Texas. As a result of

investigation conducted on Smith by the Texas

Department of Public Safety, Narcotics Service

as previously mentioned herein, it was learned

from the Texas Secretary of State, Corporation

Division, that Magnum Aviation Inc. is not cur-

rently or properly registered as a corporation to

conduct business as such. Corporation Divi

sion records reflect that Magnum Aviation, Inc.

has filed for “name reservation” as of February

18, 1982. The Affiant also learned that the As

sumed Names Division of the Nueces County

District Clerk’s office in Corpus Christi, Texas

has no such business as Magnum Aviation reg

istered as doing legitimate business in Corpus

Christi. The Affiant also learned that the local

address associated with Magnum Aviation, 710

Buffalo Street, is actually the address of Mag

num Tools and not that of Magnum Aviation.

An inquiry was made with Magnum Tools at the

above address and it was learned that Magnum

Tools is in no way affiliated with Magnum Avia-

tion. As a result of the above mentioned

checks conducted by this office, the Affiant

believes that Magnum Aviation is not a legit:

mate business and it actually a “front” for

Smith in his smuggling operation. The practice

of utilizing a ficticious company name is com

mon to narcotic smuggling violators in that it is

a method by which they (suspects) can keep

their true names and affiliations secret from

the authorities.

. On 05-16-82 at approximately 5:15 pm Smith

and the above mentioned unidentified white

male departed Chaparral Aviation in the Piper

aircraft, N4081L, filing a flight plan and giving

their destination as Winnsboro, Texas. Prior to

departing the airport the above mentioned

lah eat 8 alte ine aha tte vt bie

unidentified white male was overheard by the

Affiant checking the weather conditions for a

flight to St. Thomas in the Virgin Islands. This

is significant in that it shows an intent by the

pilot to make an overseas flight. Surveillance

units were sent to the Winnsboro, Texas airport

in an attempt to locate the Piper aircraft,

N4081L, and although they were unable to lo

cate the aircraft they did locate a 1979 Ford

pick up, 1982 Texas NB 4960, which is regis

tered to James G. Smith, Box 10, Leesburg,

Texas. When the aircraft failed to arrive at the

Winnsboro, Texas airport Texas Ranger B.

Foster checked several airstrips and airports in

the area and at approximately 10:15 pm Ranger

Foster located the Piper aircraft N4081L, at the

Mount Pleasant, Texas airport.

WHEREFORE, Affiant believes that pro

bable cause exists to believe that the afore

mentioned and described Piper aircraft,

N4081L, is going to be utilized to commit of-

fenses against the laws of the United States of

America as defined in paragraph two (2) of this

document and that conventional methods of in

vestigation have failed in the past and/or are

likely to fail in the future in the detection and

apprehension of said type smuggling endeav-

or, and that the installation of electronic trac

ing devices in said aircraft, N4081L, will result

in the detection of the aircraft from foreign ter-

ritories into the United States resulting the

seizure of Controlled Substances pursuant to

statutes cited in this Affidavit. The electronic

tracking device to be installed, maintained and

utilized is known as a transponder or a beeper

or both and such installation shall be perform

ed by a qualified officer of the U.S. Customs

Service Air Branch and/or electronic techni

cians of the U.S. Customs Service, Department

of Treasury and shall be in accordance with

‘=

Federal Aviation Administration procedures.

Furthermore, this electronic tracking device

will in no way impair or affect the safe opera-

tion of said aircraft, to include flight perfor-

mance, navigation or any other aspect of safe

flight. The success of this investigation de

pends upon this Affidavit, Application and Or.

der being kept secret. Therefore, it is addition

ally requested that this Affidavit, Application

and Order be sealed by the Court. It is further

requested that the United States Customs Ser-

vice Officers and Employees be authorized to

enter private premises and/or buildings which

may house aircraft N4081L for the purpose of

said installation and maintenance and that it

may be accomplished during the day or night

time hours as circumstances dictate.

s/ Terry W. Lankford

Affiant Terry W. Lankford

Texas Department of Public Safety”

The affidavit in support of the application for the

order (U.S.A. v. Smith, R-45-48), contains two paragraphs

with statements directly attributed to the cooperating in

dividual. Paragraph 3A states that the cooperating indivi

dual stated that on May 15, 1982, a certain described air-

craft arrived at the Corpus Christi International Airport at

approximately 10:00 pm., and the plane was occupied by

two men, later identified as Petitioners, who wanted to

buy fuel. Paragraph 38 states that the cooperating in

dividual said the two men returned the following morning

for the purpose of purchasing fuel and while refueling the

aircraft was requested by Petitioner Smith to assist in

fueling a two hundred gallon auxiliary fuel cell. The other

statements contained in both paragraphs are merely con

clusions of the affiant, without an assertion of personal

knowledge or being directly attributed to the cooperating

individual. Only one other statement is directly attributed

to the cooperating individual. That is found in paragraph

ee ree Gee ee nae

- 19-

3E, and is more of a conclusion that Petitioner “Smith has

been presenting himse'f as a ‘high roller ".

The remainder of the affidavit is merely conclusions

of the affiant as to what his “investigation” revealed

about the Petitioners and his conclusion as to what other

“investigations” had revealed. There is no assertion of re

liability by the affiant for the cooperating individual and in

fact the affiant does not even state that he believes the

meager information directly attributed to the cooperating

individual. There is no statement concerning an attempt

to corroborate the meager information received.

Considering the “totality of the circumstances” rule

of Illinois v. Gates, 103 S.Ct. 2317 (1983), the information

directly attributed to the cooperating individual and the

conclusions reached by the affiant may be sufficient to

create a reasonable suspicion that the Petitioners may

have been preparing to make an illegal flight for the pur-

pose of importing drugs. However, the reasonable sus

picion rule is not a substitute for probable cause for is-

suance of a warrant. United States v. Butts, 712 F.2d -139,

1149 (5th Cir.1983).

The affiant erroneously and misleadingly states

‘(t)he carrying of fuel onboard an aircraft is a felony in

direct violation of Title 4S, U.S.C. Section 1803 and 1809,

which prohibits transportation of hazardous materials on

board an aircraft.” However, a reading of sections 1801

through 1809 reveals otherwise. The carrying of fuel in

auxiliary cells in an aircraft is not clearly a “direct viola-

tion” of the United States Code. It is only if no exemption

has been granted (Sec. 1806), if the transportation is in

“commerce” (Sec. 1801, 1802), and if the Secretary has

issued a “notice” and provided an “opportunity for a hear-

ing’, resulting in the issuance of orders directing compli

ance with the chapter or regulations (Sec. 18.08) that a

violation can be said to have occurred. Only then is the At-

torney General authorized to petition the district courts

for enforcement of such orders issued by the Secretary

(Sec. 1808). Until the terms and conditions of the statutes

have been met, an observation by an individual who does

not have knowledge of all the facts of the particular inc+

dent simply cannot determine if a violation of the statutes

«th.

has occurred. The affiant does not contend that he had

such knowledge, which he could have easily obtained. He

only makes a patently conclusory statement that the stat-

utes have been violated without stating the facts upon

which his conclusion is based.

The affiant’s conclusion that the act of carrying extra

fuel on an aircraft is very common in smuggling opera-

tions would equally apply to any legitimate overseas flight

or any flight to a remote area where refueling would other-

wise be impossible. It cannot be assumed, without evi

dence, that auxiliary fuel celis are manufactured for the

sole (or primary) purpose of providing drug smugglers a

method of carrying extra fuel for their flights.

Since the Secretary of Transportation is authorized

to exempt and approve the transportation oi hazardous

materials, considered in light of the presumption that “(ijn

absence of testimony to the contrary, it is always to be in

ferred that parties have acted within the scope of their

legitimate authority, and it will never be presumed that

they have violated the law when the reverse is equally con

sistent with the facts disclosed’, Town of Highland Park

v. Marshall, 235 S.W.2d 658,664 (Tex.Civ.App.1950), it

should have been presumed that the Secretary had ap

proved the installation and use of the auxiliary fuel cell in

the aircraft.

The conclusory allegations regarding Petitioner

Smith being a ‘high roller’, ownership of other aircraft

and dummy corporations are obviously intended to “‘boot-

strap” the meager facts provided to convince the magis-

trate that Petitioners were “bad guys” who needed watch

ing. However, the same allegations could be made to

countless numbers of legitimate businessmen, playboys,

doctors, lawyers and other professional people, who

openly are big spenders, own airplanes and enjoy the

financial anonymity of holding companies, limited part-

nerships and the like. There is no factual basis shown in

the affidavit to support the affiant’s conclusions — no al-

legations of indictments, convictions or even specific of-

fenses — just etheral “investigations”’.

-15-

The Fourth Amendment to the United States Consti

tution guarantees that “no Warrant shall issue, but upon

probable cause,” supported by oath or affirmation. The re

quirement was not eliminated by the decision in Illinois v.

Gates, 103 S.Ct. 2317 (1983). “Sufficient information must

be presented to the magistrate to allow that official to

determine probable cause; his action cannot be a mere

ratification of the bare conclusions of others.” And the

courts are required to continue to ‘conscientiously review

the sufficiency of affidavits on which warrants are

issued.” 103 S.Ct. at 2332.

in United States v. Kolodziej, 712 F.2d 975 (5th Cir.

1983), the Court considered the modified showing of prob-

able cause under Illinois v. Gates, supra. It was pointed

out that both the informant's reliability and basis of

knowledge no longer have to be set forth in an affidavit

because under Gates ‘‘a deficiency in one may be com

pensated for, in determining the overall reliability of a tip,

by a strong showing as to the other, or by some other indi

cia of reliability.” The affidavit there was found to be in

sufficient because there was no basis of knowledge set

forth; no affirmative allegation of reliability; and there was

no corroboration of the informant’s tip. 712 F.2d at 977.

In United States v. Butts, 710 F.2d 1139,1150(5th

Cir.1983) the Court specifically held that a warrant is nec-

essary, not only for the entry into the vehicle and the phys-

ical attachment of the beeper in it’s interior, but also for

its continued presence for a period of time therein.

“Accordingly, we hold that in the usual case a war-

rant based upon probavle cause is required to install

and maintain an electronic tracking device within the

interior of a vehicle or other conveyance for an ex-

tended period of time. The fourth amendment de

mands nothing less.” 710 F.2d at 1150

The panel did not reach the question of whether and under

that condition various exceptions to the warrant require

ment would apply. 710 F.2d at 1150 n.16. Surely, this case

is not one of those exceptions because the arresting of-

ficer thought he did need an order and obtained one, and

there are no exigent circumstances shown by the affida-

vit.

The affidavit fails to meet the modified showing of

probable cause under Illinois v. Gates, supra. It does not

even contain an assertion that the cooperating individual

is reliable or that the affiant believes it to be credible. The

information is not of such a nature that it can be said the

cooperating individual could have only obtained his infor-

mation from Petitioners or someone who knew their

plans. And last, there is no corroboration of the meager in

formation provided by the cooperating individual. The

order authorizing installation of the beeper was not based

upon probable cause, but was merely a “ratification of the

bare conclusions of others”, which was denounced in IF

linois v. Gates, 103 S.Ct. at 2332.

CONCLUSION

WHEREFORE, PREMISES CONSIDERED, Petition

ers, James Gregory Smith and Robert Shingle Speir, re

spectfully requests that a Writ of Certiorari issue to

review the judgments of the United States Court of Ap

peals for the Fifth Circuit and to enunciate further the ap-

plication of the “totality of circumstances” tests for es

tablishing probable cause for the issuance of search war-

rants.

Res lly ted,

\ Don Ervin

1717 South Shepherd

Houston, Texas 77019

713-526-2131

Attorney for Petitioner,

James Gregory Smith

-17-

Clifton L. Holmes

422 North Center Street

Longview, Texas 75601

214-758-2200

Attorney for Petitioner,

Robert Shingle Speir

CERTIFICATE OF SERVICE

| hereby certify that a true and correct copy of the

foregoing motion for rehearing has been served by plac-

ing the same in the U.S. Mail, postage prepaid, and ad-

dressed to:

Dane Smith, United States Attorney

221 West Ferguson Street

Tyler, Texas 75702

onthis___3 _ day of __ March

DON ERVIN

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

UNITED STATES, ;

OF AMERICA, )

Plaintiff-Appellee, )

)

versus ) No. 83-2330

JAMES GREGORY SMITH,

Defendant-Appeliant )

)

versus ) No. 83-2332

)

ROBERT SHINGLE SPEIR,

Defendant-Appeliant.

Appeals from the United States District Court

for the Eastern District of Texas

( DECEMBER 8, 1983 )

Before CLARK, Chief Judge, POLITZ and JOHNSON, Cir

cuit Judges.

PER CURIAM:

The affidavit is sufficient. The search warrant was

validly issued. The judgment of conviction is

AFFIRMED

- B1-

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

ROBERT SHINGLE SPEIR,

Defendant-Appellant.

JNITED’STRIES- )

OF AMERICA, )

Plaintiff-Appeliee, )

)

versus ) No. 83-2330

)

JAMES GREGORY SMITH, )

Defendant-Appeliant. )

)

versus ) No. 83-2332

)

Appeals from the United States District Court

for the Eastern District of Texas

ON PETITION FOR REHEARING

( JANUARY 5, 1984 )

Before CLARK, Chief Judge, POLITZ and JOHNSON, Cir-

cuit Judges.

PER CURIAM:

IT IS ORDERED that the petition for rehearing filed in

the above entitled and numbered cause be and the same

is hereby

DENIED

ENTERED FOR THE COURT

Charles Clark

United States Circuit Judge

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

TEXARKANA DIVISION

UNITED STATES OF AMERICA

VS.

JAMES GREGORY SMITH,

and

ROBERT SHINGLE SPEIR

)

) NO. TX-82-18-CR

)

NO. TX-82-19-CR

FINDINGS OF THE COURT

On September 29, 1982, James Gregory Smith and

Robert Shingle Speir, defendants in the above entitled and

numbered consolidated causes, were charged by identi-

cal superseding indictments with violations of certain

federal criminal statutes. Specifically, Count 2 of the in-

dictments charged the defendants with importing a con-

trolled substance in violation of 18 U.S.C. §§952(a) and 960

(1976). The elements required to be proven to establish

this offense are that: (a) the defendant imported or caused

to be imported into the United States from any place out-

side thereof, (b) a controlled substance and (c) that such

importation was knowlingly and intentionally done.

Count 3 of the indictments charged the defendants

with transporting hazardous materials (gasoline in air

commerce in violation of 49 U.S.C. §1472(h) (1976). The

elernents of that offense are: (a) that a defendant reck-

lessly causes the transportation of any shipment, bag-

gage, or other property which contains a hazardous sub-

stance, (b) that such transportation be in violation of any

rule, regulation or requirement with respect to the trans-

portation of hazardous materials (the pertinent regulation

in this cause is 49 C.F.R. §173.119) and (c) that such

transportation be in air commerce.

The defendants are charged in Count 4 of the indict-

ments with possessing, with intent to distribute, a Sched-

ule | Controlled Substance (marijuana), a violation of 21

U.S.C. §841(aX 11976). “The crime of possession of [a

scheduled controlled substance] with intent to distribute

is comprised of three elements: (a) possession, (b) knowl-

edge and (c) intent to distribute.” United States v. Dreyfus-

DeCampos, 698 F.2d 227 (5th Cir. 1983).

Lastly, Count 1 of the indictments charge the defen-

dants with a conspiracy to commit the offenses contain-

ed in Counts 2, 3 and 4 of the indictments; such offenses

having been outlined above. Count 4 sets forth various

overt acts alleged to be attributable to the defendants

committed in furtherance of, and to effect the objects of

the conspiracy. The Government had also charged the de-

fendants with a conspiracy to violate 18 U.S.C. §924(c)

(1976) in Count 1 and with actual violation of that statute

in Count 5 of the indictments; however before trial the

prosecution moved for a dismissal of Count 5, which the

Court granted. Therefore, the Court will not consider this

offense with respect to the conspiracy alleged in Count 1

of the indictments. “In order to convict a defendant of a

conspiracy, the existence of a conspiracy must be estab

lished with substantial evidence showing the presence of

an agreement between two or more persons to commit a

crime and an overt act in furtherance of the agreement by

one of the conspirators, . . ., and with substantial evi

dence showing that each conspirator knew of, intended to

join and participated in the conspiracy.” United States v.

Shaddix, 693 F.2d 1135 (5th Cir. 1982).

The defendants were arraigned on the superseding

indictments and each entered a plea of ‘‘Not Guilty’ as to

all 5 counts contained therein. The defendants also waiv-

ed their right to trial by jury. On March 15, 1983, the cause

came on for trial before the Court, without a jury; both the

United States of America and the defendants made an

nouncements of ready and thereafter the Government

presented its evidence. The evidence presented consisted

solely of a stipulation of facts entered into by the defen

dants and the Government, such stipulation bei:.g admit-

ted as Government Exhibit #1. The defendants introduced

no evidence. Thereafter, both parties rested and the Court

took the matter under advisement.

After consideration of the evidence introduced at the

trial of this cause, the Court hereby makes the following

special findings:

1. That from on or about March 1, 1982, and con

tinuously up to and including May 18, 1982, in the

Eastern District of Texas, the defendants willfully

and knowingly conspired with each other to com

mit offenses against the United States in violation

of Title 18, United States Code, Section 952(a);

Section 960; Title 21, United States Code, Section

841(a); Title 49, United States Code, Section 1472

(h); and Title 49, Code of Federal Regulations, Sec-

tion 173.119; and

In furtherance of the aforesaid conspiracy the

defendants herein performed the overt act of de

parting, on May 18, 1982, from Titus County,

Texas, in an aircraft bound for the United Mexican

States;

2. That on or about May 18, 1982, in the Eastern

District of Texas, the defendants did willfully,

knowingly, intentionally, and contrary to law and

§955, 952(a), and 960 of Title 21, United States

Code, import into the United States from the

United Mexican States approximately nine hun-

dred and forty-eight pounds of Schedule | Control-

led Substance, to wit: marijuana;

3. That on or about May 18, 1982, in the Eastern Dis

trict of Texas, the defendants recklessly caused

the transportation in air commerce of a hazardous

material, to wit: gasoline, in violation of the rules,

regulations, and requirements witn respect to the

transportation in air commerce of said hazardous

material issued by the Secretary of Treasury under

Chapter 20 of the Federal Aviation Program;

-C4-

4. That on or about May 18, 1982, in the Eastern Dis-

trict of Texas, the defendants did willfully, know-

ingly, and intentionally, and not otherwise permit-

ted or authorized by law possess with intent to dis-

tribute, approximately nine hundred and forty-

eight pounds of a Schedule | Controlled Sub

stance, to wit marijuana;

. That on or about May 17, 1982, pursuant to an

order issued by C. Houston Abel, United States

Magistrate, Eastern District of Texas, in response

to the application and affidavit of Terry W. Lank-

ford, an agent of the Texas Department of Public

Safety, a tracking device was installed in the in

terior of a Piper Navajo Airplane, bearing FAA reg

istration No. N4081L, while such aircraft was le

gally parked on the apron of the Mount Pleasant

Municipal Airport, Titus County, Texas, and at a

time when the said airplane was jointly leased to

the defendants;

. That the tracking device installed in the interior of

the Piper Navajo Airplane, FAA No. N4081L, was

monitored and utilized by agents of the United

States Government to track, follow, observe, and

locate the said airplane and the contraband made

the subject of the indictments herein;

. That the defendants had a joint possessory in

terest in the Piper Navajo Airplane, FAA No.

N4081L, referred to in paragraph 5 above;

8. That the defendants have standing, under the

facts, to challenge the search made pursuant to

the Order referred to in paragraph 5 above, as an

alleged intrusion of their expected right to privacy

in their movements and an alleged violation of

their right to be secure from unreasonable search

es and seizures.

-C5-

9. That the contraband made the basis of the indict-

ments herein, and all evidence offered in support

of the Government's cases, was seized and ob

tained as a result of the search made pursuant to

the Order referred to in paragraph 5 above;

10. That the Order, Affidavit, and Return attached to

Government Exhibit #1 as Exhibit A, is the Order,

Affidavit and Return referred to hereinabove, and

is the same Order made the basis of Defendants’

Motion to Suppress and that said Exhibit A was

offered and received in evidence without objec-

tion.

Based upon the evidence received at the trial of this

cause and the applicable law, the Court finds the defen

dant, James Gregory Smith, GUILTY of the offenses

charged in Counts 1 through 4 of his indictment, and also,

the Court finds the defendant, Robert Shingle Speir,

GUILTY of the offenses charged in Counts 1 through 4 of

his indictment. Sentencing on these counts will be

scheduied for each defendant on Monday, May 9, 1983, at

9:00 A.M. in the United States Courthouse in Tyler, Texas.

SIGNED this 6th day of April, 1983.

UNITED STATES DISTRICT JUDGE

ae.

IN THE UNITED STATE DISTRICT COURT FOR THE

EASTERN DISTRICT OF TEXAS

APPLICATION OF THE UNITED STATES

OF AMERICA FOR AN ORDER.

RE: 1981 TWIN ENGINE PIPER NAVA-

JO AIRCRAFT, SERIAL NUMBER

PA-31 8112038, WHITE WITH

YELLOW, ORANGE AND BROWN

STRIPES, BEARING FAA NUMBER

)

TX-82-348-M

)

N4081L. )

APPLICATION FOR AN ORDER

NOW COMES TERRY W. LANKFORD, NARCOTICS

INVESTIGATOR, TEXAS DEPARTMENT OF PUBLIC SAFE-

TY AND HEREBY MAKES APPLICATION FOR AN ORDER

AUTHORIZING THE INSTALLATION OF AN ELECTRONIC

TRACKING DEVICE IN THE ABOVE DESCRIBED AIR-

CRAFT LOCATED IN THE NORTHERN DISTRICT OF

TEXAS, AND IN SUPPORT THEREOF WOULD SHOW THE

COURT THE FOLLOWING: SEE ATTACHED AFFIDAVIT.

- £2.

IN THE UNITED STATE DISTRICT COURT FOR THE

EASTERN DISTRICT OF TEXAS

IN THE MATTER OF AN APPLI- )

CATION OF THE UNITED STATES )

OF AMERICA FOR AN ORDER AU- ) AFFIDAVIT IN

THORIZING THE INSTALLATION ) SUPPORT OF AN

AND USE OF AN ELECTRONIC ) APPLICATION

TRACKING DEVICE ON A 1981 ) FOR THE USE OF

TWIN ENGINE PIPER NAVAJO ) AN ELECTRONIC

AIRCRAFT, SERIAL NUMBER ) AIRCRAFT

PA31-8112038, WHITE WITH ) TRACKING

YELLOW ORANGE AND BROWN _) EQUIPMENT.

STRIPES BEARING FAA NUMBER _)

N40811, LOCATED IN THE )

EASTERN DISTRICT OF TEXAS. )

TERRY W. LANKFORD, being first duly sworn, deposes

and says: {

1. That | am a Narcotics Investigator with the Texas

Department of Public Safety assigned to Corpus :

Christi, Texas. | have been so employed as a nar-

cotics investigator since January 1, 1980. My

duties as a narcotics investigator include the de-

tection, identification and apprehension of narcot-

ic smuggling violators and narcotic smuggling or-

ganizations who utilize aircraft to facilitate their

smuggling activities. | have received specialized

training in these types of investigations. ;

2. The affiant alleges that there is probable cause to

believe that aircraft bearing FAA N4081L, a twin

engine Piper aircraft, serial number PA31-8112038,

being white with yellow, orange and brown stripes

will be utilized te commit offenses as defined in 19

U.S. Code, Sections 1459 and 1460; being viola-

tions arising from the failure to report and mani-

fest goods imported into the United States and 18

- £3.

U.S. Code, Section 545; being violations arising

from bring into the United States any merchandise

contrary to Law and 21 U.S. Code, Sections

952,846 and 841(a\(1); being violations arising out

of the smuggling and possession with intent to

distribute controlled substances into and within

the United States.

. The affiant states that the facts which establish

probable cause necessary for the issuance of an

order authorizing the installation and utilization of

electronic aircraft tracking equipment in the

above captioned aircraft is as follows:

A. On 05-16-82, affiant received information from

a cooperating individual that a Piper Navajo

aircraft, N4081L, had arrived at Chaparral Avia-

tion at the Corpus Christi International Airport

on 05-16-82 at approximately 10:00 pm. The

above mentioned aircraft was in need of fuel

and upon arrival was occupied by two(2) white

maies. One (1) of the subjects was later identi

fied as James Gregory Smith. The cooperating

individual informed the affiant that Smith ana

the other occupant of the aircraft wanted to

purchase fuel for the above described aircraft

and upon being advised that they would have

to wait until the next date for fuel, Smith and

the unidentified subject left the airport on foot

and walked toward the main airport terminal.

B. The affiant was informed by a cooperating ind:

vidual that on 05-16-82, at approximately 5:30

am, Smith and the same unidentified subject

returned to Chapparal Aviation for the purpose

of having the above mentioned aircraft refuet

ed. The cooperating individual, while refueling

the aircraft observed that all of the seats had

been removed from the aircraft with the excep

tion of the pilot and copilot seats. Removing

the rear seats from an aircraft to be utilized ina

iia.

narcotic smuggling operation is very common

in that the pay-load, or total cargo capacity is

increased to a maximum. The cooperating ind:

vidual further informed the affiant that while

refueling the aircraft, he was requested by

Smith to assist him (Smith) in fueling a two

hundred (200) gallon auxiliary fuel cell which

was located in the floor of the main cabin of

the aircraft. Smith was inside the aircraft and

requested that the cooperating individual re

main outside the aircraft and assist him

(Smith) by holding a ventilating hose, which

was connected to the utility fuel cell. The carry-

ing of extra fuel onboard an aircraft is a felony

in direct violation of Title 49, U.S.C. Section

1803 and 1809, which prohibits the transporta-

tion of hazardous materials onboard an air-

craft. This method of carrying auxiliary fuei on

an aircraft to be used in a smuggling operation

is very common in that it enables the aircraft to

be flown to such locations as Central and

South America and return to the United States

without a need for refueling. Based on ex-

perience as a narcotics investigator the affiant

knows that Central and South America are the

most popular locations for smugglers to pur-

chase their narcotics.

. The affiant inquired with the Federal Aviation

Administration in Oklahoma City and learned

that Piper Navajo, N4081L, was purchased on

01-19-82 in the name of C.V. Aviation, 2311

Federal Avenue, Seattle, Washington. Informa.

tion received indicates that C.V. Aviation is

owned by Carl M. Gritzmaker and Vern L. Ra-

burn. No current intelligence data exists on

Gritzmaker of Raburn at the present time.

. Suspect James Gregory Smith is known to the

Affiant to be a documented narcotics smuggler

. 6S -

who utilizes aircraft in his (Smith's) smuggling

operation. Smith is currently the target of a

separate investigation being conducted by the

Texas Department of Public Safety, Narcotics

Service in Corpus Christi, Texas. The Affiant

learned through this separate investigation

that Smith is the owner of a twin engine Beech

craft Queen Air, N36S and he (Smith) is current-

ly having an aircraft hangar constructed at the

Aransas County Airport in Rockport, Texas.

Smith stated to a cooperating individual that

the reason for having the hangar built in Aran

sas County and not in Corpus Christi (Smith's

residence) is because there are too many

“Feds” (federal agents) in the Corpus Christi,

Texas area.

. The Affiant also learned through a cooperating

individual that Smith has been presenting him

self as a “high roller’. Smith elaborated further

as having associates in Nevada and Florida

and that he (Smith) was accustomed to paying

large sums of money “under the table” in order

to get what he (Smith) wants.

. The Affiant learned that all work performed on

Beechcraft aircraft, N36S, while at the Aransas

County Airport was done in the name of Mag

num Aviation, Inc. The Affiant overheard Smith

tell the employees at Chaparral Aviation on

05-16-82 that he (Smith) is the owner of Mag

num Aviation, Inc., located at 710 Buffalo

Street, in Corpus Christi, Texas. As a result of

investigation conducted on Smith by the Texas

Department of Public Safety, Narcotics Service

as previously mentioned herein, it was learned

from the Texas Secretary of State, Corporation

Division, that Magnum Aviation Inc. is not cur-

rently or properly registered as a corporation to

-F6-

conduct business as such. Corporation Divi

sion records reflect that Magnum Aviation, Inc.

has filed for “name reservation” as of February

18, 1982. The Affiant also learned that the As

sumed Names Division of the Nueces County

District Clerk’s Office in Corpus Christi, Texas

has no such business as Magnum Aviation reg

istered as doing legitimate business in Corpus

Christi. The Affiant also learned that the local

address associated with Magnum Aviation, 710

Buffalo Street, is actually the address of Mag

num Tools and not that of Magnum Aviation.

An inquiry was made with Magnum Tools at the

above address and it was learned that Magnum

Tools is in no way affiliated with Magnum Avia-

tion. As a result of the above mentioned

checks conducted by this office, the Affiant

believes that Magnum Aviation is not a legit:

mate business and it actually a “front” for

Smith in his smuggling operation. The practice

of utilizing a ficticious company name is com

mon to narcotic smuggling violators in that it is

a method by which they (suspects) can keep

their true names and affiliations secret from

the authorities.

. On Q5-16-82 at approximately 5:15 pm Smith

and the above mentioned unidentified white

male departed Chaparral Aviation in the Piper

aircraft, N4081L, filing a flight plan and giving

their destination as Winnsboro, Texas. Prior to

departing the airport the above mentioned

unidentified white male was overheard by the

Affiant checking the weather conditions for a

flight to St. Thomas in the Virgin Islands. This

is significant in that it shows an intent by the

pilot to make an overseas flight. Surveillance

units were sent to the Winnsboro, Texas airport

in an attempt to locate the Piper aircraft,

ae ee

ere ge ee

N4081L, and although they were unable to lo

cate the aircraft they did locate a 1979 Ford

pick up, 1982 Texas NB 4960, which is regis-

tered to James G. Smith, Box 10, Leesburg,

Texas. When the aircraft failed to arrive at the

Winnsboro, Texas airport’ Texas Ranger B.

Foster checked several airstrips and airports in

the area and at approximately 10:15 pm Ranger

Foster located the Piper aircraft N4081L, at the

Mount Pleasant, Texas airport

WHEREFORE, Affiant believes that prob

able cause exists to believe that the afore

mentioned and described Piper aircraft,

N4081L, is going to be utilized to commit of-

fenses against the laws of the United States of

America as defined in paragraph two (2) of this

document and that conventionai methods of in

vestigation have failed in the past and/or are

likely to fail in the future in the detection and

apprehension of said type smuggling endeav-

or, and that the installation of electronic track-

ing devices in said aircraft, N4081L, will result

in the detection of the aircraft from foreign ter-

ritories into the United States resulting the

seizure of Controlled Substances pursuant to

statutes cited in this Affidavit. The electronic

tracking device to be installed, maintained and

utilized is known as a transponder or a beeper

or both and such installation shail be perform

ed by a qualified officer of the U.S. Customs

Service Air Branch and/or electronic techni

cians of the U.S. Customs Service, Department

of Treasury and shall be in accordance with

Federai Aviation Administration procedures.

Furthermore, this electronic tracking device

will in no way impair or affect the safe opera-

tion of said aircraft, to include flight perfor-

mance, navigation or any other aspect of safe

- £8.

flight. The success of this investigation de

pends upon this Affidavit, Application and Or-

der being kept secret. Therefore, it is addition

ally requested that this Affidavit, Application

and Order be sealed by the Court. It is further

requested that the United States Customs Ser-

vice Officers and Employees be authorized to

enter private premises and/or buildings which

may house aircraft N4081L for the purpose of

sa'd installation and maintenance and that it

may be accomplished during the day or night

time hours as circumstances dictate.

Affiant Terry W. Lankford

Texas Department of Public Safety

Sworn to before me and subscribed in my presence on

May 17 1982 at_4:52 p.m. in__Tyler___, Texas.

- 9 -

IN THE UNITED STATE DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

APPLICATION OF THE UNITED STATES

OF AMERICA FOR AN ORDER.

RE: 1981 TWIN ENGINE PIPER NAVAJO )

AIRCRAFT, SERIAL NUMBER PA-31 )

8112038, WHITE WITH YELLOW, )

ORANGE AND BROWN STRIPES, _)

BEARING FAA NUMBER N4081L. i)

ORDER OF THE COURT

THE COURT, AFTER CONSIDERING THE APPLICATION

AND AFFIDAVIT FOR AN ORDER OF THE COURT CON-

CERNING THE INSTALLATION AND UTILIZATION OF AN

ELECTRONIC TRACKING DEVICE ON A PIPER NAVAJO

AIRCRAFT, BEARING FAA REGISTRATION NUMBER

N4081L AND AFTER CONSIDERING THE ATTACHED AF-

FIDAVIT, HEREBY ORDERS THE FOLLOWING:

THAT ANY OFFICER OF THE UNITED STATES CUS

TOMS SERVICE OR HIS AUTHORIZED REPRESEN-

TATIVE, CONTINUE TO INVESTIGATE THE SUBJECT

MATTER IN THE ATTACHED AFFIDAVIT, AND AS

SOON AS FEASIBLE, INSTALL, MAINTAIN AND UTI-

LIZE AND ELECTRONIC TRACKING DEVICE ON THE

ABOVE MENTIONED AND DESCRIBED AIRCRAFT.

THAT ANY OFFICER OF THE UNITED STATES CUS

TOMS SERVICE OR HIS AUTHORIZED REPRE-

SENTATIVE TO ENTER SAID AIRCRAFT, IF

NECESSARY, AND TO ENTER PRIVATE OR PUBLIC

PREMISES AND/OR BUILDINGS WHICH MAY HOUSE

SAID AIRCRAFT FOR THE PURPOSE OF INSTALLING

THE AFOREMENTIONED ELECTRONIC TRACKING

DEVICE.

- E-10-

3. THAT THE INSTALLATION BE ACCOMPLISHED AT

ANY TIME OF THE DAY OR NIGHT.

4. THAT INVESTIGATOR TERRY W. LANKFORD NOTIFY

THE COURT IN WRITING PROMPTLY AFTER SAID Oc-

VICE IS INSTALLED.

5. THAT THIS AUTHORIZATION IS TO REMAIN IN EF-

FECT FOR THIRTY DAYS FROM THE SIGNING OF

THIS ORDER.

6. THAT THE AFFIDAVIT, APPLICATION AND ORDER

FROM THE COURT AND ANY OTHER RELATED DOCU: ;

MENTS HEREIN BE SEALED AND SHALL REMAIN IN

THE CUSTODY OF THE COURT UNTIL THE TIME SET |

FOR THE EXPIRATION OF THE AUTHORIZATION FOR

THE USE OF SAID SURVEILLANCE AIDS AS SET

FORTH ABOVE.

SIGNED AND ENTERED AT _SMI/TH _ COUNTY, TEXAS,

THIS THE _17th_ DAY OF MAY, 1982, AT _4:52. O’CLOCK ;

P.M.

U.S. Magistrate

ee ee ee eee ee ae PA? enhas MIU ine ATE ede ede

-E-11-

IN THE UNITED STATE DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

RE: 1981 TWIN ENGINE PIPER NAVAJO

AIRCRAFT, SERIAL NUMBER PA-31__) ~TX-82-348-M

8112038, WHITE WITH YELLOW, )

ORANGE, AND BROWN STRIPES, ) AFFIDAVIT

BEARING FAA NUMBER N4081L. )

)

STATE OF TEXAS )

) ss.

COUNTY OF SMITH )

|, TERRY W. LANKFORD, being an Investigator with

the Texas Department of Public Safety, upon my oath, do

hereby depose and say:

That at 1:00 a.m. on May 16, 1982 | assisted officers

of the United States Customs Service in the installation of

an electronic tracking device in Aircraft Number N4081L,

while it was parked on the apron of the Mount Pleasant

Municipal Airport, Titus County, Texas.

TERRY W. LANKFORD

Affiant

SUBSCRIBED AND SWORN to before me this _19th

day of May, 1982.

UNITED STATES MAGISTRATE

F-1

United States of America vs.

DEFENDANT: JAMES GREGORY SMITH

IN THE UNITED STATES DISTRICT COURT for

EASTERN DISTRICT OF TEXAS

TEXARKANA DIVISION (at Tyler, Texas)

Docket No: TX-82-18-CR-ol

JUDGEMENT AND PROBATION/COMMITIMENT ORDER

In the presence of the attorney for

the government, the defendant

appeared in person on this date:

May 16, 1983

COUNSEL: ____ WITHOUT COUNSEL: However the

court advised defendant of right to .

counsel and asked whether defendant

desired to have counsel appointed by

the court and the defendant there-

upon waived assistance of counsel.

—————“«<«“—“——-—=—--™-

FINDING &

JUDGMENT

to counts 1,2,3, and 4 of the Indict-

ment (superseding)

___ Guilty, and the court being sa-

tisfied that there is a factual basis

for the plea.

____ NOLO CONTENDERE,

__X NOT GUILTY

There being a finding/XXXX of:

___NOT GUILTY, Defendant is dis-

charged

__X GUILTY, to cots 1,2,3, and 4 of

the superseding Indictment.

Defendant has been convicted as

charged of the offense(s) of: Con-

spiring to import Marijuana into the

U.S.; to transport gasoline in air

commerce; and to possess marijuana

with intent to distribute in viola-

tion of 18 USC Sec. 371, as charged

F-l-c

in Ct. 1; importing marijuana into

the U.S. in violation of 21 USC Sec.

952(a) as charged in Ct. 2; trans-

porting gasoline in air conmerce in

violation of 49 USC Sec. 1472(h) as

charged in Ct. 3; and possessing

marijuana with intent to distribute

in violation of 21 USC Sec. 841(a)

as charged in Ct. 4 of the Indictment.

The Court asked whether defendant had

anything to say why judgment should

not be pronounced. Because no suffi-

cient cause to the contrary was

shown, or appeared to the court, the

court adjudged the defendant guilty

as charged and convicted and ordered

that the defendant is hereby

committed to the custody of the

Attorney General or his authorized

representative for imprisomment for a

period of:

F-1-d

Five (5) years as to Count 1 of the

Indictment, which the Defendant is re-

SENTENCE quired to serve. Five (5) years as to

OR counts 2,3, and 4 of the Indictment,

PROBATION which Defendant is required to serve,

ORDER said sentence to rum concurrent with

Count 1 and with each other. A spe-

cial parole term of Two (2) years as

to each count is imposed,

Defendant allowed to remain on same

bond pending any appeal of this case.

: s+ & & 2B

U.S.DISTRICT COURT

EASTERN DISTRICT OF TEXAS

MAY 16, 1983

MURRAY L. HARRIS, CLERK

BY DEPUTY s/ Anita D. Thomason

SIGNED BY

X U.S. District Judge: s/ WILLIAM M. STEGER

U.S. MAGISTRATE

F-l-e

Date: 5-16-83

Crim. Order Book

Vol. 6 Page 329

F-2

AMENDMENT (IV.)

The right of the people to be secure in their

persons, houses, papers, and effects, against un-

reasonable searches and seizures, shall not be vi-

olated, and no Warrants shall issue, but upon pro-

bable cause, supported by Oath or affirmation, and

particularly describing the place to be searched,

and the persons or things to be seized.

18 Sec. 924. Penalties

(a) Whoever violated any provision of this

chapter or knowingly makes any false statement or

representation with respect to the information

required by the provisions of this chapter to be

kept in the records of a person ‘icensed under

this chapter, or in applying for any license or

exemption or relief fram disability under the

provisions of this chapter, shall be fined not

more than $5,000, or imprisoned not more than

five years, or both, and shall become eiigible

for parole as the Board of Parole shall determine.

(b) Whoever, with intent to commit therewith

an offense punishable by tapeincmeniee: for a term

exceeding one year, or with knowledge or reason-

able cause to believe that an offense punishable

by imprisonment for a term exceeding one year is

to be camitted therewith, ships transports, or

receives a firearm or any ammmition in inter-

state or foreign commerce shall be fined not more

G-2

than $10,000., or imprisoned not more than ten

years, or both.

(1) uses a firearm to commit any felony

for which he may be prosecuted in a court of

the United States, or

(2) carries a firearm wlawfully during

the cammission of any felony for which he

may be prosecuted in a court of the United

States,

shall, in addition to the punishment provided for

the commission of such felony, be sentenced to a

term of imprisonment for not less than one year

nor more than ten years. In the case of his se-

cond or subsequent conviction under this subsec-

tion, such person shall be sentenced to a term of

imprisonment for not less than two nor more than

twenty-five years and, notwithstanding any other

G-3

provision of law, the court shall not suspend the

sentence in the case of a second or subsequent

conviction of such person or give him a proba-

tionary sentence, nor shall the term of imprison-

ment imposed under this subsection rum con-

currently with any term of imprisonment imposed

for the commission of such felony.

(d) Any firearm or ammmition involved in or

used or intended to be used in, any violation of

the provisions of this chapter or any rule or reg-

ulation promulgated thereunder, or any violation

of any other criminal law of the United States,

shall be subject to seizure and forfeiture and all

provisions of the Internal Revenue Code of 1954

relating to the seizure, forfeiture, and dispo-

sition of firearms, as defined in Section 5845(a)

of that Code, shall, so far as applicable, extend

to seizures and forfeitures under the provisions

of this chapter.

H-1

Rule 41 RULES OF CRIMINAL PROCEDURE

Rule 41. Search and Seizure

(a) Authority to Issue Warrant.--A search

warrant authorized by this rule may be issued by

a federal magistrate or a judge of a state court

of record within the district wherein the prop-

erty or person sought is located, upon request of

a federal law enforcement officer or an attorney

for the govermment.

(b) Property or Persons Which May Be Seized

with a Warrant.--A warrant may be issued under

this rule to search for and seize any (1) pro-

perty that constitutes evidence of the commission

of a criminal offense; or (2) contraband, the

fruits of crime, or things otherwise criminally

possessed; or (3) property designed or intended

for use or which is or has been used as the means

of committing a criminal offense; or (4) per-

son for whose arrest there is probable cause, or

H-2

who is unlawfully restrained.

(1) Warrant Upon Affidavit.--A warrant

other than a warrant upon oral testimony under

paragraph (2) of this subdivision shall issue

only on an affidavit or affidavits sworn to be-

fore the federal magistrate or state judge and

establishing the grounds for issuing the warrant.

If the federal magistrate or state judge is satis-

fied that grounds for the application exist or

that there is probable cause to believe that they

exist, he shall issue a warrant identifying the

property or person to be seized and naming or de-

scribing the person or place to be searched. The

finding of probable cause may be based upon hear-

Say evidence in whole or part. Before ruling on

a request for a warrant the federal magistrate

or state judge may require the affiant to appear

personally and may examine under oath the affiant

and any witnesses he may produce, provided that

H-3

such proceeding <‘1all be taken down by a cont

reporter or recording equipment and made part of

the affidavit. The warrant shall be directed to

a civil officer of the United States authorized

to enforce or assist in enforcing any law thereof

or to a person so authorized by the President of

the United States. It shall command the officer

to search, within a specified period of time not

to exceed 10 days, the person or place named for

the property or person specified. The warrant

shall be served in the daytime, unless the issuing

authority, by appropriate provision in the warrant

and for reasonable cause shown, authorizes its

execution at times other than daytime. It shall

designate a federal magistrate to whom it shall

be returned.

(2) Warrant upon oral testimony.--

(A) General Rule.--If the circumstances

make it reasonable to dispense with a

written affidavit, a Federal Magistrate may

H-4

issue a warrant based upon sworn oral testi-

mony commmicated by telephone or other

appropriate means.

(B) Application.~-The person who is re-

questing the warrant shall prepare a docu-

ment to be known as a duplicate original

warrant and shall read such duplicate ori-

ginal warrant, verbatim, to the Federal Ma-

gistrate. The Federal Magistrate shall

enter, verbatim, what is so read to such m-

gistrate on a document to be known as the

original warrant. The Federal Magistrate

may direct that the warrant be modified.

is satisfied that the circumstances are such

as to make it reasonable to dispense with a

written affidavit and that grounds for the app-

lication exist or that there is probabl:’ cause

to believe that they exist, the Federal Magi-

strate shall order the issuance of a warrant

H-5

by directing the person requesting the warrant

to sign the Federal magistrate's name on the

duplicate original warrant. The Federal magi-

strate shall immediately sign the original

warrant and enter on the face of the original

warrant the exact time when the warrant was

ordered to be issued. The finding of probable

cause for a warrant upon oral testimony may be

based on the same kind of evidence as is suffi-

cient for a warrant upon affidavit.

(D) Recording and certification of testi-

mony.- When a caller informs the Federal Ma-

gistrate that the purpose of the call is to

request a warrant, the Federal magistrate

shall immediately place under oath each per-

son whose testimony forms a basis of the appli-

cation and each person applying for that war-

rant. If a voice recording device is avail-

able, the Federal Magistrate shall record by

means of such device all of the call after

the caller informs the Federal Magistrate

H-6

that the purpose of the call is to request a

warrant. Otherwise a stenographic or long-

hand verbatim record shall be made. If a

voice recording device is used or a stenogra-

phic record made, the Federal Magistrate shall

have the record transcribed, shall certify the

accuracy of the transcription, and shall file

a copy of the original record and the tran-

scription with the court. If a longhand ver-

batim record is made, the Federal Magistrate

shall file a signed copy with the court.

(E) Contents.--The contents of a warrant

upon oral testimony shall be the same as the

contents of a warrant upon affidavit.

(F) Additional rule for execution. --The

person who executes the warrant shall enter

the exact time of execution on the face of

the duplicate original warrant.

(G) Motion to suppress precluded.---Ab-

sent a finding of bad faith, evidence obtained

pursuant to a warrant issued under this para-

graph is not subject to a motion to suppress

on the ground that the circumstances were not

such as to make it reasonable to dispense with

written affidavit.

21 Sec. 830 FOOD AND DRUGS Ch. 13

Sec. 841 Prohibited acts A

Unlawful acts

(a) Except as authorized by this subchapter,

it shall be wnlawful for any person knowingly or

intentionally--

(1) to manufacture, distribute, or dis-

pense, or possess with intent to manufacture,

distribute, or dispense, a controlled sub-

stance; or

(2) to create, distribute, or dispense,

or possess with intent to distribute or dis-

pense, a counterfeit substance.

Penalties

(b) Except as otherwise provided in section

I-2

845 of this title, any person who violates sub-

section (a) of this section shall be sentenced as

follows :

(1)(A) In the case of a controlled substance

in schedule I or II which is a narcotic drug, such

person shall be sentenced to a term of imprison-

ment of not more than 15 years, a fine of not more

than $25,000., or both. If any person commits such

a violation after one or more prior convictions of

him for an offense punishable under this para-

graph, or for a felony under any other provision

of this subchapter or subchapter II of this chap-

ter or other law of the United States relating to

narcotic drugs, marihuana, or depressant or sti-

mulant substances, have become final, such person

shall be sentenced to a term of imprisonment of

not more than 30 years, a fine of not more than

$50,000., or both. Any sentence imposing a term

of imprisonment under this paragraph shall, in the

absence of such prior conviction, impose a special

parole term of at least 3 years in addition to

I-3

such term of imprisonment and shall, if there was

such a prior conviction, impose a special parole

term of at least 6 years in addition to such term

of imprisonment.

(B) In the case of a controlled substance in

schedule I or II which is not a narcotic drug or

in the case of any controlled substance in sche-

dule III, such person shall, except as provided in

paragraphs (4), (5), and (6) of this subsection,

be sentenced to a term of imprisonment of not more

than 5 years, a fine of not more than $15,000., or

both. If any person commits such a violatio af-

ter one or more prior convictions of him for an

offense punishable under this paragraph, or for a

felony under any other provision of this subchap-

ter or subchapter II of this chapter or other law

of the United States relating to narcotic drugs,

marihuana, or depressant or stimulant substances,

have become final, such person shall be sentenced

to a term of imprisonment of not more than 10

years, a fine of not more than $30,000., or both.

Any sentence imposing a term of imprisonment under

this paragraph shall; in the absence of such a

prior conviction, impose a special parole term of

at least 2 years in addition to such term of im-

prisomment and shall, if there was such a prior

conviction, impose a special parole term of at

least 4 years in addition to such a term of im-

prisonment.

(2) In the case of a controlled substance in

schedule IV, such person shall be sentenced to a

term of imprisonment of not more than 3 years, a

fine of not more than $10,000., or both. If any

person commits such a violation after one or more

prior convictions of him for an offense punish-

able under this paragraph, or Site a felony under

any other provision of this subchapter, or subchap-

ter II of this chapter or other law of the United

States relating to narcotic drugs, marihuana, or

depressant or stimulant substances, have become

final, such person shall be sentenced to a term

of imprisonment of not more than 6 years, a fine

I-5

of not more than $20,000., or both. Any sentence

imposing a term of imprisonment under this para-

graph shall, in the absence of such a prior con-

AW Ra AP Rie ete Tacs GS. 0 «ttl

viction, impose a special parole term of at least

one year in addition to such term of imprisonment

and shall, if there was such a prior conviction,

impose a special parole term of at least 2 years

in addition to such term of imprisonment.

(3) In the case of a controlled substance in

schedule VY, such person shall be sentenced to a

term of imprisonment of not more than one year, a

fine of not more than $5,000., or both. If any

person commits such a violation after one or more

comvictions of him for an offense punishable un-

der this paragraph, or for a crime under any other

provision of this subchapter or subchapter II of

this chapter or other law of the United States re-

lating to narcotic drugs, marihuana, or depressant

or stimulant substances, have become final, such

person shall be sentenced to a term of imprison-

ment of not more than 2 years, a fine of not more

I-6

than $10,000., or both.

(4) Notwithstanding paragraph (1)(B) of this

subsection, any person who violates subsection (a)

of this section by distributing a small amount of

marihuana for no remmeration shall be treated as

provided in subsections (a) and (b) of section

844 of this title.

(5) Notwithstanding paragraph (1)(B) of this

subsection, any person who violates subsection (a)

of this section by manufacturing, distributing,

dispensing, or possessing with intent to manu-

facture, distribute, or dispense, except as auth-

orized by this subchapter, phencyclidine (as de-

fined in section 830(c)(2) of this title) shall

be sentenced to a term of imprisonment of not more

than 10 years, a fine of not more than $25,000.,

or both. If any person commits such a violation

after one or more prior convictions of him for an

offense punishable under paragraph (1) of this

paragraph, of for a felony under any other pro-

I-7

vision of this subchapter or subchapter II of

this chapter or other law of the United States re-

lating to narcotic drugs, marihuana, or depressant

or stimulant substances, have become final, such

person shall be sentenced to a term of imprison-

ment of not more than 20 years, a fine of not more

than $50,000., or both. Any sentence imposing a

term of imprisonment under this paragraph shall,

in the absense of such a prior conviction, impose

a special parole term of at least 2 years in addi-

tion to such term of imprisonment and shall, if

there was such a prior conviction, impose a spec-

ial parole term of at least 4 years in addition

to such term of imprisonment.

(6) In the case of a violation of subsection

(a) of this section involving a quantity of mari-

huana exceeding 1,000 poumds, such person shall

be sentenced to a term of imprisonment of not more

than 15 years, and in addition, may be fined not

more than $125,000. If any person commits such a

violation after one or more prior convictions of

I-8

such person for an offense punishable under para-

graph (1) of this paragraph, or for a felony under

any other provision of this subchapter, subchapter

II of this chapter, or other law of the United

States relating to narcotic drugs, marihuana, or

depressant or stimulant substances, have become

final, such person shall be sentenced to a term

of imprisonment of not more than 30 years, and in

addition, may be fined not more than $250,000.

Special parole term

section or section 845 of this title may be re-

voked if its terms and conditions are violated.

In such circumstances the original term of im-

prisonment shall be increased by the period of

the special parole term and the resulting new

term of imprisonment shall not be diminished iy

the time which was spent on special parole. A

person whose special parole term has been revoked

may be required to serve all or part of the re-

I-9

mainder of the new term of imprisonment. A spec-

ial parole term provided for in this section or

section 845 of this title shall be in addition to,

and not in lieu of, any other parole provided for

by law.

Piperidine offenses and penalty

(d) Any person who knowingly and intentionally-

(1) possesses any piperidine with intent

to manufacture phencyclidine except as auth-

orized by this subchapter, or

(2) possesses any piperidine knowing, or

having reasonable cause to believe, that the

piperidine will be used to mamufacture phen-

cyclidine except as authorized by this sub-

chapter,

shall be sentenced to a term of imprisonment of

not more than 5 years, a fine of not more than

$15,000. , or both.

I-10

Sec. 952. Importation of controlled substances

Controlled substances in schedules I

or II and narcotic drugs in schedules

III, IV, or V; exceptions

(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 sub-

stance 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-

(1) such amounts of crude opium and coca

leaves as the Attorney General finds to be

necessary to provide for medical, scientific,

or other legitimate purposes, and

(2) such amounts of any controlled sub-

stance in schedule I or II or any narcotic

I-11

drug in schedule III, IV, or V, that the

Attorney General finds to be necessary to

provide for the medical, scientific, or

other legitimate needs of the United States-

(A) during an emergency in which

domestic supplies of such substance or

drug are found by the Attorney General to

be inadequate, or

(B) in any case in which the Attor-

ney General finds that competition among

domestic manufactures of the controlled

substance is inadequate and will not be

rendered adequate by the registration of

additional manufacturers under section

823 of this title.

may be so imported under such regulations as the

Attorney General shall prescribe. No crude opium

may be so imported for the purpose of manufac-

turing heroin or smoking opium.

I-12

Nonnarcotic controlled substances

in schedules III, IV, or V

(b) 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 nonnarcotic con-

trolled substance in schedule III, IV, or V, un-

less such nomnarcotic controlled substance--

(1) is imported for medical, scientific,

or other legitimate uses, and

(2) is imported pursuant to such notifi-

cation or declaration requirements as the

Attorney General may by regulation prescribe,

except that if a nomnarcotic controlled sub-

stance in schedule III, IV, or V is also

listed in schedule I or II of the Convention

on Psychotropic Substances it shall be im-

ported pursuant to such import permit re-

I-13

quirements, prescribed by regulation of the

Attorney General, as are required by the

Convention.

Coca leaves

authorized to be imported into the United States

under subsection (a) of this section, the Attormey

General may permit the importation of additional

amounts of coca leaves. All cocaine and ecgonine

(and all salts, derivatives, and preparations

from which cocaine or ecgonine may be synthesized

Aca ae Shine RAN CCLER eANe | made

or made) contained in such additional amounts of

coca leaves imported under this subsection shall

be destroyed under the supervision of an autho-

rized representative of the Attomey General.

Pub.L. 91-513, Title III, Sec. 1002, Oct. 27,

1970, 84 Stat. 1285; Pub.L. 95-633, Title I,

ne RL RN NS kT EA cs Ps oo AN

Sec. 105, Nov. 10, 1978, 92 Stat. 3772.

Sec. 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,

(2) contrary to section 955 of this

title, knowingly or intentimally brings or

possesses on board a vessel, aircraft, or

vehicle a controlled substance, or

(3) contrary to section 959 of this

title, manufactures or distributes a con-

trolled substance,

shall be punished as provided in subsection (b)

of this section.

I-15

Penalties

(b) (i) In the case of a violation under sub-

section (a) of this section with respect to a

narcotic drug in schedule I or II, the person

committing such violation shall be imprisoned not

more than fifteen years, or fined not more than

$25,000., or both. If a sentence under this para-

graph provides for imprisonment, the sentence

shall include a special parole term of not less

than three years in addition to such term of im-

prisonment.

(2) In the case of a violation under subsec-

tion (a) of this section with respect to a con-

trolled substance other than a narcotic drug in

schedule I or II, the person committing such vi-

Olation shall be imprisoned not more than five

years, or be fined not more than $15,000, or both.

If a sentence under this paragraph provides for

imprisonment, the sentence shall, in addition to

such term of imprisomment, include (A) a special

I-16

parole term of not less than two years if such

controlled substance is in schedule I, II, III,

or (B) a special parole term of not less than one

year if such controlled usbstance is in schedule

IV.

Special parole term

section or section 962 of this title may be re-

voked if its terms and conditions are violated.

In such circumstances the original term of impri-

sonmment shall be increased by the period of the

special parole term and the resulting new term of

imprisonment shall not be diminished by the time

which was spent on special parole. A person whose

special parole term has been revoked may be re-

quired to serve all or part of the remainder of

the new term of imprisonment. The special term

provided for in this section and in section 962

of this title is in addition to, and not in lieu

of, any other parole provided for by law.

I-17

Pub.L. 91-513, Title III, Sec. 1010, Oct. 27,

1970, 84 Stat. 1290.

J-1

49 Sec. 1472 FEDERAL AVIATION PROGRAM Cu. 20

49 Sec. 1472. Criminal penalties

Generally

(a) Any person who knowingly and willfully vi-

olates any provision of this chapter (except sub-

chapters III, V, VI, VII, and XII of this chap-

ter), or any order, rule, or regulation issued by

the Administrator or by the Board under any such

provision or any term, condition, or limitation

of any certificate or permit issued under sub-

chapter IV of this chapter, for which no penalty

is otherwise provided in this section or in sec-

tion 1474 of this title, shall be deemed guilty

of a misdemeanor and upon conviction thereof shall

be subject for the first offense to a fine of not

more than $2,000. If such violation is a cotin-

uing one, each day of such violation shall con-

stitute a separate offense.

J-2

Forgery of certificates and false

marking of aircraft

(b) Any person who knowingly and willfully

forges, counterfeits, alters, or falsely makes

any certificate authorized to be issued under this

chapter, or knowingly uses or attempts to use any

such fraudulent certificate, and any person who

knowingly and willfully displays or causes to be

displayed on any aircraft, any marks that are

false or misleading as to the nationality or regi-

stration of the aircraft, shall be subject to a

fine of not exceeding $1,000 or to imprisonment.

not exceeding three years, or to both such fine

and imprisonment.

Interference with air navigation

not exceeding $5,000 or to imprisonment not ex-

ceeding five years, or to both such fine and im-

prisonmment, who--

(1) with intent to interfere with air

navigation within the United States, exhibits

within the United States any light or signal

at such place or in such mammer that it is

likely to be mistaken for a true light or

signal established pursuant to this chapter,

or for a true light or signal in comnection

with an airport or other air navigation fa-

cility: or

(2) after due warning by the Administra-

tor, continues to maintain any misleading

light or signal: or

(3) knowingly removes, extinguishes, or

interferes with the operation of any such

true light or signal.

Offering, granting, giving, soliciting,

or accepting rebates or concessions

(d)(1) Any air carrier, foreign air carrier,

or ticket agent, or any officer, agen’, employee,

or representative thereof, who shall, knowingly

and willfully, offer, grant, or give, or cause to

be offered, granted, or given, any rebate or

other concession in violation of the provisions

of this chapter, or who, by any device or means,

shall, knowingly and willfully assist, or shall

willingly suffer or permit, any person to obtain

transportation or services subject to this chap-

ter at less than the rates, fares, or charges

lawfully in effect, shall be deemed guilty of a

misdemeanor and, upon conviction thereof, shall

be. subject for each offense to a fine of not less

than $100 and not more than $5,000.

(2) Any person who, in any mamner or by any

device, knowingly and willfully solicits, accepts,

or receives a refund or remittance of any portion

of the rates, fares, or charges lawfully in effect

for the air transportation of property, or for any

service in connection therewith, or knowingly so-

licits, accepts, or receives any privilege, favor,

J-5

or facility, with respect to matters required by

the Board to be specified in currently effective

tariffs applicable to the air transportation of

property, shall be fined not less than $100, nor

more than $5,000., for each offense.

Failure to file reports;

falsification of records

(e) Any carrier, or any officer, agent, en-

ployee, or representative thereof, who shall

knowingly and willfully, fail or refuse to make a

report to the Board of Administrator as required

by this chapter, or to keep or preserve accounts,

records, and memoranda in the form and mamer

prescribed or approved by the Board or Admini-

strator, or shall, knowingly and willfully, fal-

sify, mutilate, or alter any such report, account,

record, or memorandum, or shall knowingly and

willfully file any false report, account, record,

Or memorandum, shall be deemed guilty of a mis-

demeanor and, upon conviction thereof, be subject

for each offense to a fine of not less than $100

and not more than $5,000.

Divulging information; information to

Congressional committees

(£f) LE the Administrator or any member of the

Board, or any officer or employee of either, shall

knowingly and willfully divulge any fact or in-

formation which may come to his knowledge during

the course of an examination of the accounts, re-

cords, and memoranda of any air carrier, or which

is withheld from public disclosure under section

1504 of this title, except as he may be directed

by the Administrator or the Board in the case of

information ordered to be withheld by either, or

by a court of competent jurisdiction or a judge

thereof, he shall upon conviction thereof be sub-

ject for each offense to a fine of not more than

$5,000 or imprisonment for not more than two

years, or both: Provided, That nothing in this

section shall authorize the withholding of infor-

J-7

mation by the Administrator or Board fram the

duly authorized committees of the Congress.

PENALTIES

Refusal to testify

(g) Any person who shall neglect or refuse to

attend and testify, or to answer any lawful in-

quiry, or to produce books, papers, or documents,

if in his power to do so, in obedience to the

subpena or lawful requirement of the Board or Ad-

ministrator, shall be guilty of a misdemeanor and,

upon conviction thereof, shall be subject to a

fine of not less that $100 nor more than $5,000.,

or imprisonment for not more than one year, or

both.

Safe transportation of hazardous materials

(h)(1) In carrying out his responsibilities

under this chapter, the Secretary of Transpor-

tation may exercise the authority vested in him

by section 1804 of this title to provide by regu-

lation for the safe transportation of hazardous

materials by air.

(2) A person is guilty of an offense if he

willfully delivers or causes to be delivered to

an air carrier or to the operator of a civil air-

craft for transportation in air commerce, or if

he recklessly causes the transportation in air

commerce of, any shipment, baggage, or other

property which contains a hazardous material, in

violation of any rule, regulation, or requirement

with respect to the transportation of hazardous

materials issued by the Secretary of Transpor-

tation under this chapter. Upon conviction, such

person shall be subject for each offense, to a

fine of not more than $25,000, imprisonment for a

term not to exceed 5 years, or both.

(3) Nothing in this subsection shall be con-

strued to prohibit or regulate the transportation

by any individual, for personal use, of any fire-

arm (as defined in paragraph (4) of section 232

of Title 18) or any ammmition therefor.

Aircraft piracy

(i)(1) Whoever commits or attempts to commit

aircraft piracy, as herein defined, shall be

punished--

(A) by imprisonment for not less than 20

years; or

(B) if the death of another person re-

sults from the commission or attempted conmmi-

sion of the offense, by death or by im-

prisonment for life.

(2) As used in this subsection, the term

“aircraft piracy'’ means any seizure or exercise

of control, by force or violence or threat of

force or violence, or by any other form of inti-

midation, and with wrongful intent, of an air-

J-10

craft within the special aircraft jurisdiction of

the United States.

(3) An attempt to commit aircraft piracy

shall be within the special aircraft jvrisdiction

of the United States even though the aircraft is

not in flight at the time of such attempt if the

aircraft would have been within the special air-

craft jurisdiction of the United States had the

offense of aircraft piracy been completed.

Ch. 27 HAZARDOUS MATERIALS 49 Sec. 1302

Sec. 1802 Definitions

As used in this chapter, the term--

(1) "commerce" means trade, traffic, com-

erce, or transportation, within the juris-

diction of the United States, (A) between a

place in a State and any place outside of such

State, or (B) which affects trade, traffic,

commerce, or transportation described in

clause (A);

(2) “hazardous material'' means a substance

or material in a quantity form which may pose

an unreasonable risk to health and safety or

property when transported in commerce;

(3) ‘Secretary’' means the Secretary of

Transportation, or his delegate;

(4) "serious harm’' means death, serious ill-

ness, or severe personal injury;

(5) "State'’ means a State of the United

States, the District of Columbia, the Conmon-

wealth of Puerto Rico, the Virgin Islands

American Samoa, or Guam;

(6) ‘'transports" or ''transportation" means

any movement of property by any mode, and any

loading, unloading, or storage incidental

thereto; and

(7) ‘United States'’ means all of the States.

Sec. 1803 Designation of hazardous materials

Upon a finding by the the Secretary, in his dis-

cretion, that the transportation of a particular

quantity and form of material in commerce may

pose an umreasonable risk to health and safety or

property, he shall designate such quantity and

form of material or group or class of such mater-

K-3

ials as a hazardous material. The materials so

designated may include, but are not limited to,

explosives, radioactive materials, etiologic a-

gents, flammable liquids or solids, combustible

liquids or solids, poisons, oxidizing or corro-

sive materials, and compressed gases.

Sec. 1804. Regulations governing transportation

of hazardous materials

General

(a) The Secretary may issue, in accordance

with the provisions of Section 553 of Title 5 in-

cluding an opportunity for informal oral presen-

tation, regulations for the safe transportation

in commerce of hazardous materials. Such regula-

tions shall be applicable to any person who trans-

ports, or causes to be transported or shipped, a

hazardous material, or who manufactures, fabri-

cates, marks, maintains, reconditions, repairs,

or tests a package or container which is repre-

K-4

sented, marked, certified, or sold by such person

for use in the transportation or commerce of cer-

tain hazardous materials. Such regulations may

govern any safety aspect of the transportation of

hazardous materials which the Secretary deems ne-

cessary or appropriate, including, but not limi-

ted to, the packing, repacking, handling, labeling,

marking, recording, and routing (other than with

respect to pipelines) of hazardous materials, and

the manufacture, fabrication, marking, mainte-

nance, reconditioning, repairing, or testing of a

package or container which is represented, marked,

certified, or sold by such person for use in the

transportation of certain hazardous materials.

Cooperation

(b) In addition to other applicable require-

ments, the Secretary shall consult and cooperate

with representatives of the Interstate Commerce

Commission and shall consider any relevant sug-

gestions made by such Commission, before issuing

K-5

any regulation with respect to the routing of

hazardous materials. Such Commission shall, to

the extent of its lawful authority, take such

action as is necessary or appropriate to implement

any such regulation.

Representation

represent that a container or package for the

transportation of hazardous materials is safe,

certified, or in campliance with the requirements

of this Act, unless it meets the requirements of

all applicable regulations issued under this Act.

Sec. 1806. Exemptions

General

(a) The Secretary, in accordance with pro-

cedures prescribed by regulation, is authorized

to issue or renew, to any person subject to the

K-6

requirements of this chapter, an exemption from

the provisions of this chapter, and from regu-

lations issued under section 1804 of this Title,

if such person transports or causes to be trans-

ported or shipped, hazardous materials in a manner

sO as to achieve a level of safety (1) which is

equal to or exceeds that level of safety which

would be required in the absence of such exemp-

tion, or (2) which would be consistent with the

lic interest and the policy of this chapter in

the event there is no existing level of safety

established. The maximm period of an exemption

issued or renewed under this section shall not

exceed 2 years, but any such exemption may be re-

newed upon application to the Secretary. Each

person applying for such an exemption or renewal

shall, upon application, provide a safety analysis

as prescribed by the Secretary to justify the

grant of such exemption. A notice of an appli-

cation for issuance or renewal of such exemption

shall be published in the Federal Register. ‘he

Secretary shall afford access to any such safety

analysis and an opportunity for public comment on

any such application, except that nothing in this

sentence shall be deemed to require the release

of any information described by subsection (b) of

Section 552 of Title 5, or which is otherwise

protected by law from disclosure to the public.

Vessels

(b) The Secretary shall exclude, in whole or

in part, from any applicable provisions and regu-

lations under this chapter, any vessel which is

excepted from the application of Section 201 of

the Ports and Waterways Safety Act of 1972 by

paragraph (2) of such section, or any other vessel

regulated under such Act, to the extent of such

regulation.

Firearms and ammmnition

lation issued under this chapter, shali be con-

K-8

strued to prohibit or regulate the transportation

by any individual, for personal use, of any fire-

arm (as defined in paragraph (4) of section 232

of Title 18) or any ammmition therefor, or to

prohibit any transportation of firearms or amm-

nition in commerce.

Limitation on authority

an emergency exists, exemptions or renewals

granted pursuant to this section shall be the

only means by which a person subject to the re-

quirements of this chapter may be exempted from

or relieved of the obligation to meet any re-

quirements imposed under this chapter.

Sec. 1808. Powers and duties of Secretary

General

(a) The Secretary is authorized, to the extent

K-9

necessary to carry out his responsibilities under

this chapter, to conduct investigations, make re-

ports, issue subpoenas, conduct hearings, require

the prodiiction of relevant documents, records,

and property, take depositions, and conduct, di-

rectly or indirectly, research, development, de-

monstration, and training activities. The Secre-

tary is further authorized, after notice and an

opportunity for a hearing, to issue orders di-

recting compliance with this chapter or regula-

tions issued under this chapter; the district

courts of the United States shall have jurisdic-

tion, upon petition by the Attorney General, to

enforce such orders by apporpriate means.

Records

(b) Each person subject to requirements under

this chapter shall establish and maintain such

records, make such reports, and provide such in-

formation as the Secretary shall by order or re-

gulation prescribe, and shall submit such reports

K-10

and shall make such records and information avail-

able as the Secretary may request.

Inspection

employee, or agent to enter upon, inspect, and

examine, at reasonable times and in a reasonable

manner, the records and properties of persons to

the extent such records and properties relate to

(1) the manufacture, fabrication, mark-

. ing, maintenance, reconditioning, repair,

testing, or distribution of packages or con-

tainers for use by any person in the trans-

portation of hazardous materials in commerce:

(2) the transportation or shipment by

any person of hazardous materials in

commerce.

K-11

Any such officer, employee, or agent shall, upon

request, display proper credentials.

Facilities and duties

(d) The Secretary shall--

(1) establish and maintain facilities

and technical staff sufficient to provide,

within the Federal Govermment, the capability

of evaluating risks connected with the trans-

portation of hazardous materials and mater-

ials alleged to be hazardous;

(2) establish and maintain a central re-

porting system and data center so as to be

able to provide the law-enforcement and fire-

fighting personnel of commmities, and other

interested persons and government officers,

with technical and other information and ad-

vice for meeting emergencies connected with

the transportation of hazardous materials;

(3) conduct a continuing review of all

aspects of the transportation of hazardous

materials in order to determine and to be

able to recommend appropriate steps to assure

the safe transportation of hazardous mater-

ials.

Annual report

(e) The Secretary shall prepare and submit to

the President for transmittal to the Congress on

or before May 1 of each year a comprehensive re-

port on the transportation of hazardous materials

during the preceding calendar year. Such report

shall include, but need not be limited to--

(1) a thorough statistical compilation

of any accidents and casualties involving

the transportation of hazardous materials;

K-13

(2) a list and summary of applicable

Federal regulations, criteria, orders, and

exemptions in effect;

(3) a summary of the basis for any exenp-

tions granted or maintained;

(4) an evaluation of the effectiveness

of enforcement activities and the degree of

voluntary compliance with applicable regu-

lations;

(5) a summary of outstanding problems

confronting the administration of this chap-

ter, in order of priority; and

(6) such recommendations for additional

legislation as are deemed necessary or a-

ppropriate.

1809. Penalties

K-14

Civil

(a)(1) Any person (except an employee who acts

without knowledge) who is determined by the Secre-

tary, after notice and an opportunity for a hear-

ing, to have knowingly committed an act which is

a violation of a provision of this chapter or of

a regulation issued umder this chapter, shall be

liable to the United States for a civil penalty.

Whoever knowingly commits an act which is a vio-

lation of any regulation, applicable to any per-

son who transports or causes to be transported or

shipped hazardous materials, shail be subject to

a civil penalty of not more than $10,000, for each

violation, and if any such violation is a con-

tinuing one, each day of violation constitutes a

separate offense. Whoever knowingly commits an

act which is a violation of any regulation appli-

cable to any person who manufactures, fabricates,

marks, maintains, reconditions, repairs, or tests

a package or container which is represented,

K-15

marked, certified, or sold by such perso for use

in the transportation in commerce of hazardous

materials shall be subject to a civil penalty of

not more than $10,000 for each violation. The a-

mount of any such penalty shall be assessed by the

Secretary by written notice. In determining the

amount of such penalty, the Secretary shall take

into account the nature, circumstances, extent,

and gravity of the violation committed and, with

respect to the person found to have committed

such violation, the degree of culpability, any

history of prior offenses, ability to pay, effect

on ability to continue to do business, and such

other matters as justice may require.

(2) Such civil penalty may be recovered in an

action brought by the Attorney General on behalf

of the United States in the appropriate district

court of the United States or, prior to referral

to the Attorney General, such civil penalty may

be compromised by the Secretary. The amount of

such penalty, when finally determined (or agreed

K-16

upon in compromise), may be deducted from any

sums owed by the United States to the person

charged. All penalties coliected under this sub-

section shall be deposited in the Treasury of the

United States as miscellaneous receipts.

Criminal

(b) A person is guilty of an offense if he

willfully violates a provision of this chapter or

a regulation issued under this chapter. Upon con-

viction, such person shall be subject, for each

offense, to a fine of not more than $25,000, im-

prisonment for a term not to exceed 5 years, or

both.

L-1

Sec. 173.119 Title 49--Transportation

Sec. 173.119 Flammable liquids not specifically

provided for.

(a) Flammable liquids with flash point 20 de-

grees F. or below. Flammable liquids with flash

point 20 degrees F. or below and having vapor

pressure (Reid! test) not over 16 pounds per

square inch, absolute, at 100 degrees F., other

than those for which special requirements are

prescribed in this Part, must be prepared for

shipment in specification containers of a design

and constructed of materials that will not react

dangerously with or be decamposed by the chemical

packed therein as required in the following para-

graphs (see paragraphs (c) to (i) of this section

for high pressure liquids, paragraphs (j) to (1)

of this section for viscous liquids, and para-

graph (m) of this section for flammable liquids

which are also oxidizers, corrosive liquids, poi-

son B liquids, or organic peroxides and Section

L-2

173.134 for flammable liquids that are also pyro-

phoric liquids):

laST™M Test D323.

(1) Specification 1A, 1D, or 1M (Sections 178.

1, 178.4, 178.17 of this subchapter). Glass car-

boys in boxes or expanded polystyrene packagings.

Rated capacity may not exceed 5 gallons for Spec-

ification 1A. Not authorized for transportation

by aircraft.

(2) Spec. 5, 5A, 5B, 5C, or 5M (Sections 178.

80, 178.81, 178.82. 178.83, or 178.90 of this

subchapter). Metal barrels or drums, with open-

ings not exceeding 2.3 inches in diameter.

(3) Specification 17E (Sec. 178.116 of this

subchapter). Metal drums (single-trip) with

openings not over 2.3 inches in diameter. Drums

with a marked capacity of more than 5 gallons but

L-3

not more than 30 gallons must be constructed of

19-guage body and head sheets. Drums with a

marked capacity in excess of 30 gallons must be

constructed of 18-guage body and head sheets.

Drums with a marked capacity of more than 5 gal-

lons are not authorized for transportation by air.

(4) Specification 17C (Sec. 178.115 of this

subchapter). Metal drums (single-trip), with

openings not exceeding 2.3 inches in diameter.

(5)<6) (Reserved)

(7) Spec. 12B (Sec. 178.205 of this subchap-

ter). Fiberboard boxes with inside containers

which mist be glass or earthenware, not over 1

quart each; metal cans not over 1 gallon each.

Note 1: Spec. 12B fiberboard boxes (Sec. 178.

205-26(a) of this subchapter), with one inside

rectangular metal can, spec. 2F (Sec. 178.25 of

this subchapter) not to exceed 5 gallons capacity,

L-4

are authorized for gasoline only. Gross weight

of campleted package not over 65 pounds.

(8) Spec. 15A, 15B, 15C, 16A, 19A, or 19B

(Sections 178.168, 178.169, 178.170, 178.185, 178.

90, or 178.191 of this subchapter). Wooden boxes

with inside containers which must be metal pails,

kits, or cans, not over 10 gallons each or inside

glass or earthenware containers up to 3 gallons

each are authorized when only one inside container

is packed in each outside container.

(9) Spec. 21C, 22A or 22B (Sec. 178.224, Sec.

178.196 or Sec. 178.197 of this subchapter).

Fiber drums and plywood drums with a single in-

side glass, earthenware, or metal container of

not over one gallon capacity in each dmm. In-

side container must be so cushioned at top, sides,

and bottom, as to prevent breakage or leakage in

transit.

(10) Specification 42B, (Sec. 178.107, of

L-5

this subchapter). Alumimm drums.

(11) Cylinders as prescribed for any com-

pressed gas, except acetylene.

(12) Specification 103,7 103W, 103ALW, 103DW,

104,2 1O4W, 105A100,* 1OSALOOALW, 1OSALOOW, 106A-

500X, 1O6A800XNC, LO6AS00NCI,* LOSALOOALW, 109A-

300W, 11OA500W, 111A60ALW1, 111A460F1, 111A60W1,

111A1L00W3, 111A100W4, 111A100W6, 112A200W, 112A-

4OOF, 114A340W, 115A60W1, 115A60ALW, 115A60W6,

ARA-III, ARA-IV,* or ARA-IV-A? (Sections 179.100,

179.101, 179.200, 179.201, 179.220, 179.300, 179.

301 of this subchapter). Tank cars. For cars e-

quipped with expansion domes, manway closures

must be so designed that pressure will be re-

leased automatically by starting the operation of

removing the manway cover. Openings in tank heads

to facilitate application of lining are author-

ized on tank cars constructed before January 1,

1975. These openings must be closed in an a-

pproved (Sec. 179.3 of this subchapter) marmer.

L-6

2Use of existing tank cars authorized, but new

construction not authorized.

(13) The use of spec. 103AL special riveted

aluminum tank cars is authorized for the trans-

portation of gasoline, ethyl acetate, acetone,

methanol, or butyraldehyde as provided in special

orders of November 5, 1937 and February 1, 1939.

.14) Spec. 15X (Sec. 178.181 of this subchap-

ter). Wooden boxes with inside metal containers.

For shipment by common carriers by water to non-

contiguous territories or possessions of the U-

nited States and foreign countries; shipments

from inland points in the United States which

are consigned to such destinations are autho-

rized to be transported to ship side by rail

freight in carload lots only and by motor vehi-

cle im truckload lots only.

L-7

(15)-(16) (Reserved)

(17) Specification MC 300, MC 301, MC 302, MC

303, MC 304, MC 305, MC 306, MC 307, MC 330,? or

MC 3313 (Sections 178.340, 178.341, 178.342, 178.

337). Tank motor vehicles. Bottom outlets on

specification MC 304 cargo tanks must be equipped

with valves conforming with Sec. 178.342-5(a).

Bottom outlets on specifications MC 330 and MC 331

cargo tanks must be equipped with valves conform-

ing with Sec. 178.33711(c).

3In addition to other requirements of this sec-

tion, necessary interior cleaning of the tanks

must be performed between changes in lading.

Safety relief devices must be in accordance with

specification MC 331 (Sec. 1-8.337).

(18) The use of existing tank cars constructed

to specifications Emergency USG-A,* USG-B,* or

usc-c* in effect prior to Jume 4, 1956 is autho-

L-8

rized for the transportation of liquids weighing

not over 8 pounds per gallon, and having vapor

pressures not exceeding 16 pounds per square inch,

absolute, at 100 degrees F.

4Use of existing tank cars authorized, but

new construction not authorized.

(19) Spec. 5L (Sec. 178.89 of this subchapter).

Metal barrels or drums for gasoline shipments

offered by or consigned to the Departments of the

Army, Navy, and Air Force of the United States

Government or Allies. Use of this container wili

be permitted because of the present emergency and

until firrther order of the Department.

(20) Spec. 12D (Sec. 178.207 of this subchap-

ter) Fiberboard boxes with inside containers

which must be glass or earthenware not over one

gallon each; authorized for not more than 75

pounds gross weight; not to contain more than 4

L-9

such containers if their capacity is greater than

5 pints each. Use of this container will be per-

mitted because of the present emergency and until

further order of the Department.

(21) Gasoline samples in boxes or metal not

lighter than 20 gauge, United States standard,

having hinged cover securely closed, and contain-

ing not more than 5 inside rectangular metal cans

with screw cap closure, each having a capacity

not to exceed one half gallon, may be shipped

when consigned to state laboratories for exami-

nation.

(22) Specification 17H or 37A (Sections 178.-

118 and 178.131 of this subchapter). Metal drums

with inside glass packagings not over 9 pints ca-

pacity each. Inside containers may contain bio-

logical materials if these materials are not eti-

ologic agents, except that etiologic agents ex-

empt by Sec. 173.386(d) are authorized.

ish GE I

L-10

(23) Specification 12A (Sec. 178.210 of this

subchapter). Fiberboard box, with inside glass

bottles or specification 2E (Sec. 178.24a of this

subchapter) polyethylene bottles, not over 1 gal-

lon capacity each. Polyethylene bottles are auth-

orized only for materials that will not react with,

or cause decomposition of the plastic. Not more

than four inside bottles exceeding 5 pints capa-

city each may be packed in a package. Shipper

must have established that the completed package

meets the test requirements prescribed by Sec. 178.

21010 of this subchapter.

(24) Spec. 6D (Sec. 178.102 of this subchap-

ter). Cylindrical steel overpack with inside

spec. 2S (Sec..178. 35 of this subchapter) polyeth-

ylene container.

(25) Spec. 51 (Sec. 178.245 of this subchap-

ter). Portable tanks.

(26) Specification 57 (Sec. 178.253 of this

L-11

subchapter). Portable tanks, Not authorized for

transportation by water.

(27) Specification 12P (Sec. 178.211 of this

subchapter). Fiberboard box with one inside spe-

cification 2U (Sec. 178.24 of this subchapter)

polyethylene container of not over 5-gallon capa-

city, or two inside specification 2U polyethylene

containers of not over 2 and one half gallon ca-

pacity each. Authorized only for material which

will not react with or cause decomposition of

polyethylene. Not authorized for transportation

by air.

(28) Specification 12A (Sec. 178.210 of this

subchapter). Fiberboard boxes with inside metal

containers not over l-gallon capacity each. Not

more than six metal containers shall be packed in

a 275-pound test, double faced, corrugated fiber-

board, specification 12A box and gross weight

shall not exceed 45 pounds. The immer flap gaps

of the box shall not exceed five-eighths inch and

L-12

the box shall provide a tight fit so there is no

movement of the cans within the box.

(29) Marine portable tanks meeting the re-

quirements of 46 CFR Part 64 authorized for high-

way cargo vessel only when shipped in support

of off-shore oil well drilling activities. Tanks

shall comply with mounting and tie-down require-

ments of Sec. 178.245-4 of this subchapter when

transported by highway.

(30) IM portable tanks, under conditions spe-

cified ir the IM Tank Table. |

(b) Flammable liquids with flash points above

20 degrees F. to 73 degrees F, Flammable liquids

with flash points above 20 degrees F. to 73 de-

grees F, and having vapor pressure (Reidl test)

not over 16 poumds per square inch, absolute, at

loo degrees F. other than those for which special

requirements are prescribed in this Part, must be

packaged in packagings of a design and constructed

L-13

of materials that will not react dangerously with

or be decomposed by the chemical packed therein as

follows (see paragraphs (c) through (i) of this

section for high-pressure liquids and paragraph

(m) of this section for flammable liquids which

are also oxidizers, poison B liquids, organic

peroxides or corrosive liquids) :

laSIM Test D323

(1) Contairers as specified in paragraph (a)

of this section, except that openings greater than

2.3 inches in diameter in barrels and drums are

authorized when permitted by the specification.

(2) Spec. 17E or 17H (Sections 178.116 or 178.

118 of this subchapter). Metal drums (single-trip).

(3) Specification 10B (Sec. 178.156 of this

subchapter). Wooden barrels or kegs. Authorized

only for alcohol and alcohol-water-mixtures.

Note 1: Until further order of the Department,

wooden whiskey barrels, properly recoopered,

which comply with all the provisions of spec. 10B

(Sec. 178.156 of this subchapter), are also autho-

rized. Marking is required on the head of each

container, by the reconditioner, by hot branding

or legible stenciling, as follows: DOT-10B.

Name or symbol (letters) of reconditioner;

this must be registered with the Associate Dir-

ector for HMR and located just above, below, or

following the mark DOT-10B.

Size of marking (minimm) 3/4, inch high.

(4) Spec. 12B (Sec. 178.205 of this subchap-

ter). Fiberboard boxes with inside containers

which must be glass, earthenware, polyethylene

(bags are not authorized), or metal, not over 1

gallon each. Packages containing inside glass or

earthenware containers must not contain more than

4 such inside containers if their capacity is

L-15

greater than 5 pints each. Polyethylene con-

tainers are authorized only for materials that

will not react with or cause decomposition of the

plastic.

Note 1: Until further order of the Department,

fiberboard boxes, Spec. 12B (Sec. 178.205-26(a) of

this subchapter), with one inside rectangular me-

tal can, spec. 2F (Sec. 178.25 of this subchapter),

not to exceed 5 gallons capacity, are authorized.

Gross weight of completed package not over 65

pounds.

(5) Spec. 12E (Sec. 178.208 of this subchap-

ter). Fiberboard box with 1 or 2 rectangular me-

tal inside containers of not over 5 gallons capa-

city each.

(6) Specification 57 (Sec. 178.253 of this sub-

chapter). Steel portable tank. Authorized for

transportation by water when having a minimm de-

sign pressure of 9 psig and equipped in accordance

L-16

with Sec. 178.253-4, except that frangible devices

are not authorized. Also, for water transporta-

tion, no pressure relief device may open at less

than 5 psig. Authorized for liquids with flash

points above 20 degrees F. and a vapor pressure

not over 16 psia at 100 degrees F.

(7) Specification 37P (Sec. 178.133 of this

subchapter). Steel drums with polyethylene liner

(non-reusable container). Authorized only for ma-

terials that will not react with polyethylene and

result in container failure. Not authorized for

transportation by air.

(8) Specification 6D or 37M (non-reusable con-

tainer) (Sections 178.102, 178.134 of this sub-

chapter). Cylindrical steel overpack with an in-

side specification 2S or 2SL (Sections 178.35,

178.35a of this subchapter) polyethylene container.

Authorized only for materials that will not react

with polyethylene and result in container failure.

L-17

(9) Spec. 21P (Sec. 178.225 of chis subchap-

ter). Fiber drum overpack with inside spec. 2S

or 2SL (Sections 178.35 or 178.35a of this sub-

chapter) polyethylene container. Authorized only

for materials that will not react with polyeth-

ylene and result in container failure.

(10) Specification 37D (Sec. 178.137 of this

subchapter). Non-reusable steel drum authorized

only for a material not exceeding a weight of 10

pounds per gallon. For a material weighing more

than 10 pounds per gallon but not exceeding a

weight of 12 pounds per gallon, drums made of not

less than 2"-guage body and 20-guage heads must

be used.

packing requirements are not prescribed. Flam-

able liquids for which other special packing re-

quirements are not prescribed in this part, must

be shipped, depending upon their Reid! vapor pres-

sures as prescribed in paragraphs (d) to (i) of

L-18

this section.

1aSIM Test D323.

(d) When the vapor pressure does not exceed 16

pounds per square inch, absolute, at 100 degrees

F. When the vapor pressure does not exceed 16

pounds per square inch, absolute, at 100 degrees

F., flammable liquids must be packed as prescribed

in paragraphs (a) and (b) of this section.

(e) When the vapor pressure exceeds 16 pounds

per square inch, absolute, at 100 degrees F. When

the vapor pressure exceeds 16 poumds per square

inch, absolute, at 100 degrees F., but does not

exceed 27 pounds per square inch, absolute, at

100 degrees F., flammable liquids mst be packed

in specification containers as follows:

(1) As prescribed in paragraphs (a) (1) to

(11) of this section, except spec. 17E (Sec. 178.

116 of this subchapter). Bung labels required,

L-19

for metal barrels and drums, as prescribed in

paragraph (i) of this sectior

(2) Specification 1037, 103W, 1O3ALW, 103-

DW, 104,2 104W, 105A100,2 10SAL00ALW, 105A-

LO0W, 1O06ASO0X, 1O6AS00XNC, 106A800NCI,2 109A-

LOOALW, 1O9A300W, 110A500W, 111A60ALW1,

111A60F1, 111A460W1, 111A100W3, 111A100W4, 111-

Al00W6, 112A200W, 112A400F, 114A340W, 115A60-

Wl, 115A60W6, 115A60ALW, ARA-III,2 ARA-IV,2

or ARA-IV-A,* (Sections 179.100, 179.101, 179.-

200, 179.201, 179.220, 179.221, 179.300, 179.301

of this subchapter). Tank cars. Any car having

an expansion dome must be equipped with a manway

closure identification mark, and dome placards

as described in paragraphs (f) (4), (g), amd (h) of

this section. Openings in tank heads to facili-

tate application of lining are authorized on tank

cars constructed before January 1, 1975. These

openings must be closed in an approved (Sec. 179.3

of this subchapter) manner (See note 1 of para-

graph (f) (3) of this secticn).

L-20

2Use of existing tank cars authorized, but new

construction not authorized.

(3) Specification MC 304, MC 307, MC 330, or

MC 331 (Sections 178.340, 178.342, 178.337 of this

subchapter). Tank motor vehicles, Necessary in-

terior cleaning of the tanks must be performed be-

tween changes in lading Each safety relief de-

vice must have a start-to-discharge pressure of

not less than 25 p.s.i.g. Each tank must meet the

following requirements as applicable:

(i) Bottom outlets on each specification MC

304 cargo tank must be equipped with valves con-

forming to the requirements of Sec. 178.342-5(a)

of this subchapter: and

(ii) Bottom outlets on each specification MC

330 and MC 331 cargo tank must be equipped with

valves conforming to the requirements of Sec. 178.

rc ey — _ =

— — A A tt

L-21

337-11(c) of this subchapter. Safety relief de-

vices on these tanks must be in accordance with

specification MC 331 (Sec. 178.337 of this sub-

chapter) requirements.

(4) Spec. 51 (Sec. 178.245 of this subchapter).

Portable tanks

(5) IM portable tanks, under conditions speci-

fied in the IM Tank Table,

)£) When the vapor pressure exceeds 27 pounds

per square inch, absolute, at 100 degrees F.

When the vapor pressure exceeds 27 pounds per

square inch, absolure, at 100 degrees F., but does

not exceed 40 pounds per square inch (See note 2),

absolute, at 100 degrees F., flammable liquids

must be packed in specification containers as

follows:

(1) Spec. 5, 5A, or 5P (Sections 178.80, 178.-

81, or 178.92 of this subchapter). Metal barrels

L-22

or drums, with openings not exceeding 2.3 inches

in diameter. Bung labels required as prescribed

in paragraph (i) of this section.

(2) Cylinders as prescribed for any compressed

gas except acetylene.

(3) Specification 105A100,* 105ALOQALW,

LOSALOOW, 108ASO0X, ‘106A800XNC, 106AS00NCI, 2

LOQALOOALW, 1O09A300W, 110A500W, 111A100W4,

112A200W, LL2A400F, 114A340W, or ARA-IV-A* (Sec. -

179.30, 179.100, 179.101, 179.200, 179,201, 179.300,

179.301 of this subchapter), (see Note 1 of this

paragraph). Tank cars. Specification 104, 2 104W,

111A100W3, and ARA-IV2 (Sections 179.200, 179.201

of this subchapter), tank cars are authorized un-

der the conditions prescribed in paragraphs (f) (4),

(g), and (h) of this section and Note 3 of this

paragraph. Openings in tamk heads to facilitate

application of lining are authorized on tank cars

constructed before January 1, 1975. These open-

ings must be closed in an approved (Sec. 179.3 of

L-23

this subchapter) manner.

2ise of existing tank cars authorized, hut new

construction not authorized.

Note 1: Tanks built in compliance with Ameri-

can Railway Association specifications for class

IV-A2 tank cars authorized for use effective Oc-

tober 1, 1925, may be continued in service for the

transportation of ethyl chloride and other liquids

which do not have a vapor pressure exceeding 28

pounds per square inch, gauge pressure, at 100 de-

grees F., provided there is stenciled on each side

of the tank immediately below the valve protecting

housing the words "Liquids having vapor pressure

exceeding 28 pounds per square inch at 100 degrees

F. must not be loaded into this tank" in letters

and figures at least 1 inch high. These tank cars

must be retested as prescribed in current spec.

LOSALOOW except that safety valves must open at

pressure not exceeding 35 pounds, and be vapor

tight at 28 pounds per square inch.

L-24

Note 2: When the vapor pressure exceeds 40

pounds per square inch, absolute, at 100 degrees

F., these flammable liquids are classed as flan-

mable compressed gases and must be described,

packed, and shipped as prescribed for such arti-

cles.

Note 3: Spec. 1042 or 104-W or ARA-IV2 tank

cars are authorized provided that they are equipp-

ed with approved fittings designed to provide for

the loading, unloading, gauging, sampling, and

taking temperature of the contents without re-

moving the manway closure; that safety valves are

set to open at pressure of 35 pounds, (with a tol-

erance of plus or minus 3 pounds), and are vapor

tight at 28 pounds per square inch gauge pressure;

that bottom discharge outlets are of the same

type as authorized for specification 1042 or 104-W

tank cars; amd that there is stenciled on each

side of the tank above the specification mark, in

letters and figures at least 1 inch high, 'For

vapor pressures not exceeding 40 pounds per square

Fe eS ee en ea

L-25

inch, absolute, at 100 degrees F.'' Because of the

present emergency and until further order of the

Department, spec. ICC-1042 or 104-W tank cars,

equipped with safety valves set to open at pres-

sure of 35 pounds (with a tolerance of plus or

minus 3 pounds) and which are vapor tight at 28

pounds per square inch, gauge pressure, are auth-

orized provided that they are stenciled as re-

quired above.

2Use of existing tank cars authorized, but new

construction not authorized.

(4) Specification 103,2 103W, 103ALW, 104,2

111A60ALW1, i111A60F1, 111A60W1, 115A60W1,

115A60N6, LISA6QALW, ARA-ITI,2 or ARA-IV* (Sec-

tions 179.200, 179.201, 179.220, 179.221 of this

subchapter). Tank cars. Each car must have its

manway closure equipped with approved safeguards

making the removal of the closure fram the manway

opening practically impossible while the car in-

terior is subjected to vapor pressure of lading.

L-26

The car must be stenciled on each side of the dome

in line with the ladders, and in a color con-

trasting to the color of the dome, with identifi-

cation marks as prescribed in paragraph (g) of

this section.

2Use of existing tank cars authorized, but new

construction not authorized.

(5) Specification MC 304, MC 307, MC 330,3 or

MC 3313 (Sections 178.340, 178.342, 178.337 or

this subchapter). Tank motor vehicles. Bottom

outlets on specification MC 304 cargo tanks must

be equipped with valves conforming with Sec. 178.-

342-5(a) of this subchapter. Bottom outlets on

specification MC 330 and MC 331 cargo tanks must

be equipped with valves conforming with Sec. 178.-

337-11(c) of this subchapter.

31m addition to other requirements of this sec-

tion, necessary interior cleaning of the tanks

L-27

must be performed between changes in lading.

Safety relief devices must be in accordance with

specification MC 331, (Sec. 178.337).

(6) Spec. 51 (Sec. 178.245 of this subchapter).

Portable tanks.

(7) IM portable tanks, under conditions spe-

cified in the IM Tank Tab’e.

(g) Manhole closure identification mark.

(Reduced size}

(h) Dome placards. Specification 103 ,2 103-

ALW, 103W, 104,2 104W, 11LA6OALWL, 111A60F1, 111-

AGOWL, 115A60W1, 115A60W6, 115A60ALW, ARA-

” BEST AVAILABLE COPY |

L-28

III,2 or ARA-IV* (Sections 179.200, 179.201,

179.220, 179.221 of this subchapter). Tank cars.

Each car loaded with any material described in

paragraph (e) or (f) of this section must, in

addition to the ''Flammable" placards, be protected

by special dome placards, at least 4 and one-

eighth by 10 and seven-eights inches, with legible

wording as follows:

DOME PLACARD

(Reduced Size)

‘Black printing on white)

seariitiinintaiecniipaaicdaie STE POND OD icthiinecnccnvttinenaihniie,

AVOID ACCIDENTS

3 :

c DO MOT RCMOVE TriS DOLIC COVER :

—

wll CAS PRCSSUAC CXISTS IN TAAK

FLICP USATED LANTLIANS AWAT

Se ease aaaal

2Use of existing tank cars authorized, but new

construction not authorized.

Note 1: For tank cars equipped with both immer

L-29

and outer manhole covers, and when removal of in-

ner cover is not necessary to unload the car, the

word "inner'' may be substituted for the word

"this'' in the dome placard.

(1) Dome placard mist be applied one on each

Side of dome and one on the top near the manhole

in line with the ladders. Dome placards may be of

white paper securely pasted to the dom, or of

strong tag board for use in suitable holders; or

the wording of the dome placard may be stenciled

on the dome of car and remain thereon as long as

it is used in the service which requires these

special placards.

(i) Bung label. A flammable liquid as de-

scribed in paragraph (e) or (f) of this section,

shipped in a metal drum or barrel, in addition to

the FLAMMABLE LIQUID label, must be labeled near

the bung with a white rectangular label or tag

measuring 5 by 3 inches, bearing the wording as

displayed below:

L-30

BUNG LABEL

‘Reduced Size)

(Black printing on white)

CAUTION ““iowiy=**

Do not enscrew entirely until al] interior

pressure has escaped through the loosened

thieads.

REMOVE BUNG IN OPEN AIR. Keep

all oper Esme Eights and Ores away. Inciosed

coed INCHES... cece

Evectric Lights are safe.

(j) Viscous flammable liquids. Flammable li-

quids which are viscous as defined in Sec. 171.8

of this subchapter must be shipped in specifica-

tion packagings as prescribed in paragraph (k) or

(1) of this section.

(k) Viscous flammable liquids having a vapor

pressure which does not exceed 16 pounds per

square inch, absolute, at 100 degrees F. (See

paragraphs (c) to (i) of this section for higher

pressure liquids) must be prepared for shipment in

containers as follows:

B BEST AVAILABLE COPY ~

L-31

(1) As prescribed in paragraphs (a) or (b) of

this section, irrespective of flash point.

(2) Specification 6B, or 6C (Sections 178.98,

179.99 of this subchapter). Metal barrels or

drums .

(3) Specification 37A or 37B (Sections 178.131,

178.132 of this subchapter). Metal drums (single-

trip) not over 5 gallons with welded seams.

Not authorized for transportation by air.

(4) (Reserved)

(1) Viscous flammable liquids with flash point

above 20 degrees F. to 73 degrees F. and having a

vapor pressure which does not exceed 18 pounds

per square inch, absolute, at 100 degrees F. Vis-

cous flammable liquids with flash point above 20

degrees F. to 73 degrees F. and having a vapor

pressure which does not exceed 18 pounds per

square inch, absolute, at 100 degrees F. must be

L-32

packaged as follows:

(1) As prescribed in paragraphs (e) to (i) of

this section.

(2) Spec. 17E or 17H (Secticns 178.116 or 178.-

118 of this subchapter). Metal drums (single-trip).

(m) Flammable liquids which are also organic

peroxides, oxidizers, corrosive liquids or poison

B liquids. A flammable liquid which is also am or-

ganic peroxide, oxidizer, corrosive liquid, or

poison B liquid must be packed as follows:

(1) Specification 1A, 1D, 1EX (single-trip) or

1M (Sections 178.1, 178.4, 178.6, 178.17 of this

subchapter). Glass carboys in boxes, plywood

drums, or expanded polystyrene packagings. Rated

capacity may not exceed 5 gallons for Specifica-

tion 1A. Not authorized for transportation by

aircraft.

—e EE

L-33

(2) Specification 15A, 15B, 15C, 16A, 19A, or

19B (Sections 178.168, 178.169, 178.170, 178.185,

178.190, 178.191, of this subchapter). Wooden

boxes with inside containers which must be glass,

earthenware, or polyethylene not over 1 gallon ca-

pacity each. Inside containers must be cushioned

with noncombustible packaging material in suffi-

cient quantity to absorb the contents of the immer

container.

(3) Spec. 12B (Section 178.205 of this sub-

chapter). Fiberboard boxes with inside containers

which must be glass or earthenware, not over l

quart each, cushioned with incombustible packing

material in sufficient quantity to absorb the con-

tents of the immer container.

(4) Specification 5, 5A, 5B, 5C, 5P, 17C (sin-

gle-trip), or 17E (single-trip) (Sections 178.80,

178.81, 178.82, 178.83, 178.92, 178.115, 178.116

of this subchapter). Metal barrels or drums. Re-

moveable head packagings over 16 gallons capacity

L-34

are not authorized. Authorized only for materials

which will not react dangerously with the drum

metal, or be decomposed by contact with it.

(5) Specification 37P (Sec. 178.133 of this

subchapter). Steel drums, not over 15 gallons

capacity, with polyethylene liner (non-reusable

container). Drums exceeding one gallon capacity

must be constructed of at least 24-gauge metal.

Authorized only for materials that will not react

with polyethylene and result in container failure.

Not authorized for transportation by air.

(6) Specification 12B (Sec. 178.205 of this

subchapter). Fiberboard boxes with inside Speci-

fication 2E (Sec. 178.24a of this subchapter)

polyethylene bottles not over 1l-gallon capacity

each. Not more than four 1l-gallon polyethylene

bettles shall be packed in one outside fiberboard

box. Authorized only for material which will not

react dangerously with or be decomposed by con-

tact with polyethylene.

L-35

(7) Spec. 12B (Sec. 178.205 of this subchap-

ter). Fiberboard boxes with one inside polyethy-

lene bottle not over 5-gallons capacity, as spe-

cified by Sec. 178.205-34 of this subchapter.

Authorized only for material which will not react

dangerously with or cause decomposition of poly-

ethylene.

(8) Specification 12P (Sec. 178.211 of this

subchapter). Fiberboard box with one inside spe-

cification 2U (Sec. 178.24 of this subchapter)

polyethylene container of not over 6-gallon capa-

city, or two inside specification 2U polyethylene

containers of not over 2% gallon capacity each.

Authorized only for material which will not react

with or cause decomposition of polyethylene. Not

authorized for transportation by air.

(9) Specification steel or nickel cylinders as

prescribed for any campressed gas except acetylene.

All cylinder valves must be protected by one of

the methods described in Sec. 173.301 (g) (1),

L-36

(2), or (3) of this part. See Sec. 173.34 (e)-

(16).

(10) Specification MC 303 or MC 304: Tank m-

tor vehicle meeting Sec. 178.343-2(c) of this sub-

chapter. If the cargo tank is constructed with

bottom outlets, they must meet Sec. 178.342-5(a)

of this subchapter. Not authorized for flammable

liquids which are also organic peroxides. MC 303

not authorized for transportation by water.

(11) Specification MC 305, MC 306, or MC 307

(Sections 178.340, 178.341, 178.342 of this sub-

chapter). Tank motor vehicles meeting Sec. 178.-

343-2(c) of this subchapter. Not authorized for

flammable liquids which are also organic peroxides.

McC 305 and MC 306 not authorized for transporta-

tion by water.

(12) Specification MC 310, MC 31l, or MC 312

(Sections 178.340, 178.343 of this subchapter).

Tank motor vehicles. If the cargo tank is con-

L-37

structed with bottam outlets, they mist meet Sec-

tions 178.342-5{a) and 178.343-5 of this subchap-

ter. Not authorized for flammable liquids which

are also organic peroxides.

(13) Specification 103AW, LO3ALW, 103A-ALW,

1o3ANW, 103BW, 103CW, 103DW, 1O3EW, 103W, LO4W,

LOSALOOW, L11LAG0ALW1, 111LA60ALW2, 111A60W1,

111A60W2, 111A60W5, 111A100F2, 111A100W3,

LL1IALOOW6, 115A60W6, or AAR206W (Sections 179.-

200, 179.201, 179.220 of this subchapter). Tank

cars. All special requirements for tank cars

according to flash point, vapor pressure, and vis-

cosity, in paragraphs (a) through (1) of this sec-

tion apply. Not authorized for flammable liquids

which are also organic peroxides.

(14) Specification 112A200W or 114A340W (Sec-

tions 179.100, 179.101 of this subchapter). Tank

cars. Authorized only for propylene oxide except

112A200W also authorized for acrylonitrile and

dichlorobutene .

L-38

(15) (Reserved).

(16) Specification 6D or 37M (non-reusable con-

tainer) (Sections 178.102, 178.134 of this sub-

chapter). Cylindrical steel overpacks with an in-

side specification 2S or 2SL (Sections 178.35,

178.35a of this subchapter) polyethylene container.

Authorized only for materials that will not react

with polyethylene and result in container failure.

Note 1: Authorized only on an interim basis

pending the Department's decision on use of bottom

outlets for tank cars containing hazardous mater-

ials.

(18) IM portable tanks, under the conditions

specified in the IM Tank Table. Not authorized

for flammable liquids which are also organic per-

oxides or oxidizers.

(49 U.S.C. 1803, 1804, 1808; 49 CFR 1.53 and App.

A to Part 1)

L-39

(29 FR 18700, Dec. 29, 1964. Redesignated at 32

FR 5606, April 5, 1967).

EDITORIAL NOTE: For Federal Register citations

affecting Sec. 173.119, see the list of CFR Sec-

tions Affected appearing in the Finding Aids sec-

tion of this volume.

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.