U.S. v. Potamitis

• Decision Date: 10 July 1984
• Docket Number: Nos. 1284-1286,D,s. 1284-1286
• Parties: 15 Fed. R. Evid. Serv. 1747 UNITED STATES of America, Appellee, v. Christos POTAMITIS, Eddie Argitakos, and Steve Argitakos, Appellants. ockets 84-1036-38.
• Court: U.S. Court of Appeals — Second Circuit

Page 784

739 F.2d 784

15 Fed. R. Evid. Serv. 1747

UNITED STATES of America, Appellee, v. Christos POTAMITIS, Eddie Argitakos, and Steve Argitakos, Appellants.

Nos. 1284-1286, Dockets 84-1036-38.

United States Court of Appeals Second Circuit.

Argued June 6, 1984.

Decided July 10, 1984.

Dennis B. Schlenker, Albany, N.Y. (Kathleen J. Pehl, John B. Sheehan, Albany, N.Y., of counsel), for appellant Potamitis.

Lawrence A. Dubin, New York City (Goldberger, Feldman & Dubin, New York City, of counsel), for appellant Eddie Argitakos.

Joel A. Brenner, New York City (Goldberger, Feldman & Dubin, New York City, of counsel), for appellant Steve Argitakos.

Ira H. Block, Asst. U.S. Atty., New York City (Rudolph A. Giuliani, U.S. Atty. for the Southern Dist. of N.Y., Celia Goldwag Barenholtz, Benito Romano, Asst. U.S. Attys., New York City, of counsel), for appellee.

Before OAKES and WINTER, Circuit Judges, and MISHLER, District Judge. ^*

OAKES, Circuit Judge:

Christos Potamitis, Eddie Argitakos, and Steve Argitakos appeal from judgments of conviction entered after a jury trial in the United States District Court, 564 F.Supp. 1484, for the Southern District of New York, Edward Weinfeld, Judge. Potamitis, Eddie Argitakos, and others were convicted of bank larceny, interstate transportation of stolen property, conspiracy, and other offenses. Steve Argitakos was acquitted of conspiracy, but convicted of being an accessory after the fact for transporting and concealing the proceeds of the theft. Potamitis was also convicted of making fraudulent statements to the FBI, perjury before the grand jury, and obstruction of justice. Another defendant, Demetrios Papadakis, was acquitted of all charges. We have considered the appellants' objections and affirm the judgments of the district court.

FACTS

The Government proved at trial that Christos Potamitis, Eddie Argitakos, and others planned and executed an elaborate robbery of the Sentry Armored Courier Corporation (Sentry) in Bronx, New York, where Potamitis was employed as a guard. More than $11 million in currency and valuables was stolen, only about $1 million of Potamitis gave his account of the incident to New York City police officers and FBI agents. He stated that he had been surprised at his desk by two masked gunmen who took his gun, led him out of the office, and handcuffed him to the railing. He also testified before the grand jury on the matter, specifically asserting that he had properly set the alarm at the scheduled time on the evening of December 12, and was unaware that the system was not working properly. He denied any involvement in or prior knowledge of the theft. He stated that he had not let any unauthorized persons onto Sentry's premises, and knew neither the identity of the robbers nor the location of the missing money and valuables.

which has been recovered to date. The evidence showed that Potamitis and Eddie Argitakos "staged" a robbery at Sentry on the night of December 12, 1982, when Potamitis was the only guard on duty. The alarm, which Potamitis was responsible for activating, did not sound. On the morning of December 13, Sentry's assistant vice president found Potamitis handcuffed to the railing of a staircase, the apparent victim of the robbery.

At trial, the testimony of George Legakis and Lenny Cascio related a series of conversations and meetings among Potamitis, Eddie Argitakos, Nicholas Gregory, and themselves, during which the robbery and concealment of its proceeds were planned. Two other key witnesses who had testified before the grand jury, Steve Panagopoulos and Gerrasimos Pavlatos, failed to appear at the trial to testify. After evidentiary hearings, the district court determined that Steve Argitakos, Eddie Argitakos's father, was responsible for their unavailability and admitted their grand jury testimony as evidence against him. Panagopoulos had testified before the grand jury that Steve Argitakos shortly after the robbery had asked him to store a locked footlocker in his garage in East Greenbush, New York. After Eddie Argitakos was arrested, Panagopoulos had the footlocker delivered to federal authorities, who discovered almost $400,000 of money taken during the robbery.

DISCUSSION

The appellants raise numerous objections to their convictions. Most importantly, they contend that (1) the Government's proof was insufficient to establish the conspiracy charged in the indictment; (2) the district court erred in admitting into evidence certain grand jury testimony; (3) the court erred in denying various motions for severance; (4) venue was improper with respect to Eddie Argitakos on the charge of being an accessory after the fact.

1. Scope of the conspiracy charged and proved. Eddie Argitakos and Potamitis argue that their convictions for conspiracy must be reversed because of an alleged variance between the indictment and the evidence adduced at trial. According to the appellants, the indictment charged a single conspiracy, while the evidence purportedly established separate conspiracies: one to commit the robbery which supposedly ended when the robbers left Sentry's premises with the money, a second to deal with the proceeds which presumably began sometime after the robbery was accomplished. Because of the alleged variance between the indictment and proof, appellants argue that their convictions must be reversed, relying on Grunewald v. United States, 353 U.S. 391, 405, 77 S.Ct. 963, 974, 1 L.Ed.2d 931 (1957), Lutwak v. United States, 344 U.S. 604, 73 S.Ct. 481, 97 L.Ed. 593 (1953), and Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790 (1949).

The question whether the proof establishes a single or multiple conspiracies is an issue of fact "singularly well-suited to resolution by the jury." United States v. McGrath, 613 F.2d 361, 367 (2d Cir.1979), cert. denied, 446 U.S. 967, 100 S.Ct. 2946, 64 L.Ed.2d 827 (1980). Implicit in the jury's verdict here is the finding that the Government proved a single conspiracy. Construing the evidence in the light most favorable to the Government, United States v. Murray, 618 F.2d 892, 902 (2d Cir.1980), the evidence was clearly sufficient as a matter of law to support the finding of a single conspiracy.

The cases on which the appellants rely involve far different circumstances from those involved here. In Grunewald, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931, for example, the court determined that the main objective of the conspiracy was to obtain "no prosecution" rulings from the IRS as part of a tax fraud scheme. Since no agreement to conceal the conspiracy after its accomplishment was shown or could be inferred from the record, the court held that the duration of the conspiracy could not be lengthened indefinitely to keep the statute of limitations from expiring. The court went on to make a "vital" distinction between "acts of concealment done in furtherance of the main criminal objectives of the conspiracy, and acts of concealment done after these central objectives have been attained, for the purpose only of covering up after the crime." Id. at 405, 77 S.Ct. at 974 (emphasis in original). We believe that this case is a clear example of the former.

The evidence established a single conspiracy involving the robbery itself, obstruction of the investigation, and various acts of concealment. For example, it was essential to the plan that Potamitis remain behind to play the "victim," to conceal his involvement in the crime and the identity of his co-conspirators. Potamitis's ruse enabled the others to flee and gave them time to secrete the proceeds. Clearly, the evidence was sufficient to support the jury's finding that Potamitis's actions subsequent to the theft were part of the original conspiracy to rob Sentry. The nature of the crime involved in this case shows that "the successful accomplishment of the crime necessitate[d] concealment." Grunewald, 353 U.S. at 405, 77 S.Ct. at 974. See United States v. Colasurdo, 453 F.2d 585, 592 (2d Cir.1971), cert. denied, 406 U.S. 917, 92 S.Ct. 1766, 32 L.Ed.2d 116 (1972).

Likewise, the jury could fairly have concluded that the division and concealment of the proceeds were parts of the single conspiracy. As this court has said, "where a general objective of the conspirators is money, the conspiracy does not end, of necessity, before the spoils are divided among the miscreants." United States v. Knuckles, 581 F.2d 305, 313 (2d Cir.), cert. denied, 439 U.S. 986, 99 S.Ct. 581, 58 L.Ed.2d 659 (1978). Accord, United States v. Mennuti, 679 F.2d 1032, 1035 (2d Cir.1982). Thus, consistent with Grunewald, the jury could infer from the evidence that acts to conceal and divide the proceeds were part and parcel of a single scheme to rob Sentry.

2. Admission of grand jury testimony. After conducting evidentiary hearings pursuant to United States v. Mastrangelo, 693 F.2d 269, 273 (2d Cir.1982), cert. denied, --- U.S. ----, 104 S.Ct. 2385, 81 L.Ed.2d 343 (1984), Judge Weinfeld declared Steve Panagopoulos and Gerrasimos Pavlatos to be unavailable witnesses. Stating that he had no doubt that Steve Argitakos was responsible for the witnesses' disappearance, Judge Weinfeld ruled that their grand jury testimony was admissible against him. Steve Argitakos argues here that the district court was clearly erroneous in finding that he was responsible for the witnesses' unavailability and that he was denied a fair trial as a result of the admission of the grand jury testimony. Relying primarily on Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), Eddie Argitakos and Potamitis claim that despite the trial court's limiting instructions, admission of the testimony resulted in unfair prejudice to them.

A defendant may waive the right to confront witnesses against him when his own misconduct is responsible for a witness's unavailability at trial. Mastrangelo, 693 F.2d at 272-73 (citing numerous cases). The testimony at the...