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Richard G. BAILEY, Norman R. Eggimann, Laurel Macy, Appellants, v. UNITED STATES of America, Appellee.

No. 16526.

United States Court of Appeals Ninth Circuit.

Aug. 11, 1959.

*87Howard R. Lonergan, Barzee, Leedy & Erwin, Portland, Or., for appellants.

C. E. Luckey, U. S. Atty., Robert R. Carney, Robert C. Snashall, Asst. U. S. Attys., Portland, Or., for appellee.

Before STEPHENS, HAMLEY and HAMLIN, Circuit Judges.

PER CURIAM.

Appellants having moved in this court for an order directing the trial •court to take testimony to determine what matters occurred in the trial and were omitted from the transcript by reason of the court reporter’s failure to record them stenographically and to include them in the record on appeal should either party require it; and having moved for leave to designate and type parts only of the last three volumes of the seven-volume record on appeal now filed in this court; and having moved for an order •directing the clerk of the district court to transmit presentence reports to this court for inclusion in the record on appeal for use in considering appellants’ contention that probation should have ■been granted; and it appearing that at a number of places in the court reporter’s notes of the trial the letter “D” has been ■used to indicate that certain discussions took place which were not reported and included in the stenographic transcript; and it appearing that counsel for appellants is unable to recollect what discussion has been thus omitted but could possibly do so if he could be informed as to the points in the transcript where such “D” notations were made; and it appearing that he has been unable to obtain this information from the court reporter and his application to the trial court for such assistance having been denied, now therefore, pursuant to Rule 39(a), Federal Rules of Criminal Procedure, 18 U.S.C. A., and Rule 75(h), Federal Rules of Civil Procedure, 28 U.S.C.A., it is

Ordered that the record on appeal now filed in this court be temporarily returned to the clerk of the United States District Court, District of Oregon; and it is further

Ordered that the trial court hold a hearing, with the court reporter present and subject to examination, for the purpose of ascertaining at what points during the trial discussions or other proceedings were had which are not stenograph-ically reported, and to ascertain, if possible, the substance of such unreported discussions or other proceedings, such additional matters, if any, to be included in a supplemental transcript, should either party request it; and it is further

Ordered that appellant may designate and type parts only of the last three volumes of the record on appeal, this to be done with promptness while the record is in the custody of the clerk of the district court pursuant to the foregoing directions; and it is further

Ordered that the motion for an order directing the clerk of the district court to transmit presentence reports to this court for inclusion in the record on appeal be and the same is hereby denied; and it is further

Ordered that upon the completion of the proceedings referred to in the first two decretal provisions of this order and of the designation and typing referred to in the third such provision, the record on appeal be promptly returned to the clerk of this court, any supplemental transcript resulting from such proceedings to be filed at the same time.

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