Opinion
No. 22718.
May 3, 1966.
Robert H. Cleveland, Atlanta, Ga., for appellant.
Fred S. Clark, Asst. U.S. Atty., Donald H. Fraser, U.S. Atty., Savannah, Ga., for appellee.
Before TUTTLE, Chief Judge, THORNBERRY, Circuit Judge, and LYNNE, District Judge.
The principal contention in this appeal from appellant's conviction for a violation of the Dyer Act is that appellant was without adequate representation of counsel. This point was not raised before the district court, and the record does not present sufficient facts for a determination of this question on direct appeal. Appellee seeks to supplement the record by submitting affidavits attached to its brief. Affidavits outside the record, however, may not be considered by this Court. Smith v. United States, 5th Cir. 1965, 343 F.2d 539, 541; Roberts v. United States, 5th Cir. 1963, 325 F.2d 290.
The Court's consideration of the case has been unnecessarily complicated by the failure of the Reporter for the District Court to furnish a transcript of the proceedings touching on the appointment of counsel.
The contention that the evidence was insufficient to warrant submission of the case to the jury is clearly without merit.
The judgment is affirmed, without prejudice to the right of the appellant to present his contention involving representation of counsel by other proceedings available to him. See Tyree v. United States, 5th Cir. 1965, 351 F.2d 611.