United States v. Kapatos, 66 Cr. 34
| Decision Date | 30 November 1967 |
| Docket Number | 67 Civ. 3847.,No. 66 Cr. 34,66 Cr. 34 |
| Citation | 276 F. Supp. 43 |
| Parties | UNITED STATES of America, v. Thomas KAPATOS, Defendant. |
| Court | U.S. District Court — Southern District of New York |
Robert M. Morgenthau, U. S. Atty. for S.D. of New York, New York City, for the United States. Jay Gold, Asst. U. S. Atty., of counsel.
Frank A. Lopez, Brooklyn, N. Y., for defendant.
The assertions by defense counsel that John T. Joyce, "a key witness unknown previously to the defendant but within the knowledge of the Government has been found," and that he, defense counsel, "never knew of this witness * * * until after the judgment of conviction," upon which rest the charge that the government suppressed evidence and the claim of newly discovered evidence, are conclusively refuted by the record.
Although John T. Joyce's name was not included in a list, submitted by the prosecution to the defense counsel three months prior to trial, of names and addresses of potential witnesses whom the prosecution did not intend to call at the trial and "who may have information which you defense counsel may determine to be pertinent to your client's defense," the omission was without significance. The fact is that defense counsel knew of John T. Joyce long prior to the trial. The omission of his name from the list was clearly inadvertent, an understandable inadvertence, due to confusion arising from the circumstance that John T. Joyce's brother, James P., was also a potential witness, who together with him had observed events that related to the present claims. Both had given statements to the agents of the Federal Bureau of Investigation which were identical as to certain phases of events.
The list submitted to the defense included James, but failed to mention John. This inadvertent omission is now seized upon by defense counsel to bottom the charge of suppression of evidence or concealment of a material witness. But the fact is that counsel, who here makes the charge, months before the trial himself informed the Assistant United States Attorney of an article about this case which appeared in Life Magazine dated February 7, 1964, more than two and a half years before the trial, and which defense counsel advised the Assistant he had read in preparing for trial. The article contains direct and pointed references to both brothers, John and James, and as to their alleged observation of events at the time of the holdup. Both brothers were convicted of receiving stolen property, the subject matter of the instant indictment.
It is not without significance that James Joyce, named in the list as one "who may have information which you...
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United States v. Mandel, Crim. No. HM75-0822.
...had access to the favorable information. See, e. g., United States v. Brawer, 367 F.Supp. 156 (S.D.N.Y.1973); United States v. Kapatos, 276 F.Supp. 43 (S.D.N.Y.1967); and other cases cited in 34 A.L.R.3d 16, 79-91 (1970). The general rule formulated in those cases is that prerequisite to re......