U.S. v. Rumell, s. 80-1155

• Decision Date: 03 March 1981
• Docket Number: Nos. 80-1155,s. 80-1155
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James A. RUMELL and Raymond Stanley Darzinikas, Defendants-Appellants. & 80-1161.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 213

642 F.2d 213

UNITED STATES of America, Plaintiff-Appellee, v. James A. RUMELL and Raymond Stanley Darzinikas, Defendants-Appellants.

Nos. 80-1155 & 80-1161.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 5, 1981.

Decided March 3, 1981.

Nile Stanton, Indianapolis, Ind., for defendants-appellants.

Kennard P. Foster, Asst. U. S. Atty., Indianapolis, Ind., for plaintiff-appellee.

Before BAUER and WOOD, Circuit Judges, and BONSAL, Senior District Judge. ^*

WOOD, Circuit Judge.

This appeal arises from the conviction of James Rumell and Raymond Darzinikas for interstate transportation of stolen vehicles, 18 U.S.C. §§ 2312 and 2, and receiving and concealing stolen motor vehicles, 18 U.S.C. §§ 2313 and 2.

As part of its investigation of a "stolen truck ring" operating in Indiana and Illinois, the FBI discovered two stolen International Harvester tractor-truck cabs on the premises of Truck Rail Truck Service, Inc. (TRTS) in Indianapolis, Indiana. The trucks had been purchased by James Rumell, owner and operator of TRTS, through Darzinikas and the members of the truck ring. Rumell and Darzinikas were indicted on charges of having caused the transportation of the two stolen trucks from Illinois to Indiana (Counts I and II) as well as knowing receipt of the stolen trucks (Counts III and IV).

A jury verdict found Rumell guilty on all counts and Darzinikas guilty on Counts I and III. Judgment was entered on February 5, 1980. On February 6, 1980, Rumell filed a notice of appeal from the judgment. ¹ On February 11, 1980, Rumell filed a motion in the district court under 28 U.S.C. § 2255 to vacate and set aside his conviction on grounds of ineffective assistance of counsel. The district court denied the motion on April 2, 1980. Rumell never filed a notice of appeal from the denial.

I.

On appeal, Rumell and Darzinikas allege error in numerous rulings of the trial court. Initially, Rumell seeks to have this court review the order denying his motion under § 2255. Although both sides briefed the issue of whether the district court properly denied the motion, they failed to note that jurisdiction to review the order is predicated on proper notice of appeal. ² Under Rule 4(a) of the Federal Rules of Appellate Procedure, ³ where the United States is a party, an appeal may be taken within 60 days of the entry of the order; the district court may extend this period another 30 days upon a showing of excusable neglect. In this instance, no separate notice was ever filed, only the notice of appeal of the judgment of conviction.

The timeliness requirement is "mandatory and jurisdictional." Browder v. Director, Illinois Department of Corrections, 434 U.S. 257, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978). Moreover, because Rule 4 is mechanical, it must apply mechanically to avoid uncertainty as to its requirements. Brainerd v. Beal, 498 F.2d 901, 903 (7th Cir.), cert. denied, 419 U.S. 1069, 95 S.Ct. 655, 42 L.Ed.2d 664 (1974).

Rumell argues that the filing of a timely notice of appeal on the judgment is sufficient notice of the appeal of the denial of the § 2255 motion since the motion to vacate is a further part of the criminal case and not a separate civil action. He urges that the record transmittal letter to the court of appeals in connection with the notice of appeal of the conviction which indicated that the § 2255 motion would be filed and that it was to be included as part of the record for appeal is sufficient to put the government on notice that it would be part of the appeal. We find no authority for this proposition. First, Rumell's proposed exception to the timeliness rules would create the very uncertainty about which Brainerd warned. In addition, if a notice of appeal from a judgment of conviction is to serve as a blanket notice covering not only the conviction but also any post-trial rulings, then neither appellees nor appellate courts could be certain which, if any, of a district court's post-trial rulings are to be attacked on appeal. This result would contravene the requirement of Rule 3(a) of the Federal Rules of Appellate Procedure that the notice of appeal state the judgment or order, or part thereof, appealed from.

The cases cited by Rumell as exceptions each involve a situation where, although technically defective, an actual filing of notice as to the judgment appealed from was timely made. By contrast, Rumell's notice of appeal was not simply technically defective. At the time the notice was filed, the underlying motion had not even been made and obviously had not yet been ruled on by the district court.

Even if we were to accept that the appeal from the motion was part of the original notice of appeal, the notice on that issue would still be defective in that jurisdiction must exist at the time of notice and "cannot be acquired on the basis of later events." 9 Moore's Federal Practice P 204.14 (2d ed. 1980). This court has no jurisdiction to review the district court's order denying Rumell's motion to vacate. The appeal on this issue is dismissed. ⁴

II.

Rumell next alleges error in the district court's refusal to admit into evidence the results of his polygraph examination. Appellant admits that the rule in the Seventh Circuit is clear: the exclusion of such evidence is within the sound discretion of the trial judge. Only abuse of discretion would render the exclusion erroneous. United States v. Infelice, 506 F.2d 1358 (7th Cir.), cert. denied, 419 U.S. 1107, 95 S.Ct. 778, 42 L.Ed.2d 802 (1974); United States v. Penick, 496 F.2d 1105 (7th Cir. 1974); United States v. Chastain, 435 F.2d 668 (7th Cir. 1970). Nevertheless, appellant invites us to abandon this rule and to require a balancing test "weighing the potential prejudice to the jury if let in and the potential prejudice to Rumell if it is kept out."

Appellant apparently urges this test as a way of increasing the acceptance of polygraph examination results as competent evidence. However, a balancing process has always been a part of the decision-making process of the trial court judge in exercising his discretion. If the result of the current rule has been a reluctance to admit the polygraph results, it is because the doubts as to its probative value outweigh any positive aspects. The court in United States v. Bursten identified the factors which have influenced federal courts in rejecting polygraph evidence:

Among these are the distrust of the accuracy of results based upon a nexus between autonomic discharge and veracity, this skepticism being fueled by disagreement among experts in the field. Also, judges loathe the spector (sic) of trial by machine, wherein each man's sworn testimony may be put to the electronic test. Finally, there exists the apprehension that jurors will abdicate their responsibility for determining credibility, and rely instead upon the assessment of a machine.

560 F.2d 779, 785 (7th Cir. 1977). Therefore, adhering to the rule of our past decisions, we find no error in the refusal to admit Rumell's polygraph results.

III.

Rumell and Darzinikas both allege error in the denial of their joint motion for acquittal tendered at the close of the government's case in chief. In order for the government to meet its burden of proof under 18 U.S.C. § 2312, it must prove that (1) the vehicles were stolen, (2) they were transported in interstate commerce, (3) the appellants knew the vehicles were stolen and (4) the transportation was intentional. United States v. Meek, 388 F.2d 936 (7th Cir.), cert. denied, 391 U.S. 951, 88 S.Ct. 1855, 20 L.Ed.2d 866 (1968). Rumell contends that the government failed to prove that the truck described in Count II had been in interstate commerce ⁵ and that the appellants knew that the trucks were stolen. Darzinikas alleges improper venue.

A motion for judgment for acquittal must be denied where substantial evidence, taken in the light most favorable to the government, tends to show that the defendant is guilty beyond a reasonable doubt. United States v. Fearn, 589 F.2d 1316 (7th Cir. 1978). The United States is entitled to the benefit of all reasonable inferences. United States v. Barclay, 560 F.2d 812 (7th Cir. 1977).

Rumell contends that the direct evidence pertaining to the truck described in Count II places it only in Indiana. However, there was ample evidence from which the jury may have inferred that the truck was transported to Illinois. Testimony of the members of the stolen truck ring indicated that some trucks were sent to Paxton, Illinois, for repainting and changing vehicle identification numbers. The electric starter was replaced with an air starter subsequent to the theft and prior to delivery to Rumell. From testimony it may be inferred that this modification was made at the Paxton, Illinois garage. Even if the truck was not sent to Paxton for these changes, the storage facility used by the ring was located in Lansing, Illinois....