United States v. Tremont

• Decision Date: 30 September 1965
• Docket Number: No. 15839.,15839.
• Citation: United States v. Tremont, 351 F.2d 144 (6th Cir. 1965)
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Vincent TREMONT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

351 F.2d 144 (1965)

UNITED STATES of America, Plaintiff-Appellee, v. James Vincent TREMONT, Defendant-Appellant.

No. 15839.

United States Court of Appeals Sixth Circuit.

September 30, 1965.

Henry V. Sutton, Memphis, Tenn. (James F. Schaeffer, Memphis, Tenn., on the brief), for appellant.

C. Odell Horton, Jr., Memphis, Tenn. (Thomas L. Robinson, U. S. Atty., C. Odell Horton, Jr., Asst. U. S. Atty., Memphis, Tenn., on the brief), for appellee.

Before O'SULLIVAN, Circuit Judge, McALLISTER, Senior Circuit Judge, and SMITH, Judge of the United States Court of Customs and Patent Appeals.^*

O'SULLIVAN, Circuit Judge.

James Vincent Tremont appeals from his conviction, on jury trial, of violating the Dyer Act, 18 U.S.C.A. § 2312, by transporting a stolen automobile from Elizabeth, New Jersey, to Memphis, Tennessee. The cause was tried in the United States District Court for the Western District of Tennessee. The proofs easily permitted a jury finding that Tremont stole the car in New Jersey, transported it to Memphis, Tennessee, and sold it there for $4,250,00.

In the following order, we consider such of appellant's assertions of District Court error as we consider merit discussion.

1) Sufficiency of evidence.

Appellant urges that the evidence of guilt was not sufficient to go to the jury. He initially makes the assertion that "this was a rare case in which the government charged and prosecuted the wrong man."

There appears to be no serious quarrel with the sufficiency of proof to establish that a Cadillac convertible was stolen from a used car lot in New Jersey on July 19, 1962, and was sold to a dealer in Tennessee on July 23. Defendant offered evidence tending to show he had remained at his home in New Jersey throughout this entire period. Government witnesses positively identified him, however, as the man who had inspected the car on the lot in New Jersey on the day before and on the day it was stolen; as the man who had registered at a motel in Arkansas and attempted to sell a Cadillac convertible to a dealer there; and as the man who sold the stolen car to buyers in Memphis, and who cashed the check given for purchase of the car at a Tennessee bank. Less positive, but quite credible, identifications were also furnished by the operator of a motel near Memphis at which a man resembling Tremont spent the night of July 23, and by a cab driver who transported a passenger from such motel to the bank and then to Union Station on July 24, 1962, the day following the sale of the stolen vehicle. An expert testifed that appellant had written on an application for certificate of ownership, relevant motel registration cards, and the check issued to pay for the car. The person thus identified as the defendant Tremont used the name of George Larro throughout the described activities in Arkansas and Tennessee.

It was for the jury to weigh the evidence and resolve the issues it presented. It is familiar law that the verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the government, to support it. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680, 704 (1942). Applying such rule we find that the evidence supported the verdict.

2) Motion to transfer trial to New Jersey.

Error is charged in the denial of appellant's motion for transfer of the prosecution to New Jersey, pursuant to F.R. Crim.P. 21(b). The ground for this motion, made at the beginning of trial, was that it would further the "interest of justice" to try the case where appellant's alibi witnesses would be more readily available. Appellant had announced he was ready to go to trial before this motion was made, and also that he expected to produce some alibi witnesses. He did produce alibi witnesses. We find no error in denying the motion.

Disposition of a motion for change of venue in a criminal case lies within the discretion of the trial judge. This rule applies where the motion is based on convenience and availability of witnesses just as in other cases. Scott v. United States, 255 F.2d 18 (CA 4, 1958), cert. denied, 357 U.S. 942, 78 S.Ct. 1392, 2 L.Ed.2d 1555 (1958); cf. United States v. Sorce, 308 F.2d 299, 301 (CA 4, 1962), cert. denied, 377 U.S. 957, 84 S.Ct. 1635, 12 L.Ed.2d 500 (1964); Gates v. United States, 122 F.2d 571, 577 (CA 10, 1941), cert. denied, 314 U.S. 698, 62 S.Ct. 478, 86 L.Ed. 558 (1942). In addition, Rule 22 requires that a motion to transfer be made "at or before arraignment" unless otherwise prescribed by the rules or the court. Compare Cagnina v. United States, 223 F.2d 149, 154 (CA 5, 1955); cf. Poliafico v. United States, 237 F.2d 97, 113 (CA 6, 1956), cert. denied, 352 U.S. 1025, 77 S.Ct. 590, 1 L.Ed. 2d 597 (1957). We are shown nothing to indicate an abuse of discretion by the trial judge in denying the tardy motion made in the present case.

3) Lie detector evidence.

Appellant also complains of the trial court's refusal to allow in evidence the results of a lie detector test assertedly taken by appellant. It is tacitly recognized that federal courts have consistently denied admission of such evidence. E. g., McCroskey v. United States, 339 F.2d 895, 897 (CA 8, 1965); Marks v. United States, 260 F.2d 377, 382 (CA 10, 1958), cert. denied, 358 U.S. 929, 79 S.Ct. 315, 3 L.Ed.2d 302 (1959); Frye v. United States, 54 App.D.C. 46, 293 F. 1013, 34 A.L.R. 145 (1923); United States v. Stromberg, 179 F.Supp. 278 (S.D.N.Y.1959). Nothing appears to have been offered to the trial court to upset the longstanding judicial distrust of such evidence, and we are not ourselves prepared to reexamine the traditional rule in a case thus presented.

4) Refusal to provide an expert witness for defendant at government expense.

Motion was made at the outset of the trial for appointment of a handwriting expert at government expense to meet anticipated expert testimony for the government. Compare 18 U.S.C.A. § 3006A (e), not in effect at the time of appellant's trial. We do not feel it appropriate to pass on the merits of the interesting question raised by this motion in view of the failure of appellant to show his claimed indigency.

The only indications of appellant's indigency in the record are the appointment of counsel to represent him and the court's order allowing him to subpoena two alibi witnesses at government expense. No formal order appointing counsel appears to have been entered, and opening colloquy between trial counsel and the court suggests it was left to counsel "to see whether or not he was an indigent within the meaning of the rule." The record also shows, however, that appellant had originally retained counsel in New Jersey and in Tennessee without appointment, and does not indicate that Tennessee counsel's later motion to withdraw was granted on the basis of non-payment of fees. It is quite clear that the court did...