United States v. Potamitis

• Decision Date: 07 June 1983
• Docket Number: No. S 83 Cr. 68.,S 83 Cr. 68.
• Citation: 564 F. Supp. 1484
• Parties: UNITED STATES of America v. Christos POTAMITIS, Eddie Argitakos, Demetrious Papadakis, a/k/a "Jimmy Pappas," Nicholas Gregory, a/k/a "Nick," a/k/a "Nick the Greek," and Steve Argitakos, Defendants.
• Court: U.S. District Court — Southern District of New York

564 F. Supp. 1484

UNITED STATES of America v. Christos POTAMITIS, Eddie Argitakos, Demetrious Papadakis, a/k/a "Jimmy Pappas," Nicholas Gregory, a/k/a "Nick," a/k/a "Nick the Greek," and Steve Argitakos, Defendants.

No. S 83 Cr. 68.

United States District Court, S.D. New York.

June 7, 1983.

John S. Martin, Jr., U.S. Atty., S.D.N.Y., New York City, for United States of America; Ira H. Block, Michael Norton, New York City, of counsel.

Arnold D. Roseman, New York City, for defendant Christos Potamitis.

Joel Winograd, New York City, for defendant Eddie Argitakos.

Martin Schmukler, New York City, for defendant Demetrious Papadakis.

Michael Washor, New York City, for defendant Steve Argitakos.

OPINION

EDWARD WEINFELD, District Judge.

The defendant, Steve Argitakos ("Argitakos"), together with four codefendants, including his son Eddie, is charged in count 1 of an indictment with conspiracy in the theft of money, food stamps and other property in excess of $11,000,000 from the Sentry Armored Courier Corporation ("Sentry"), Bronx, New York. Argitakos also is charged in count 5 with being an accessory after the fact in violation of 18 U.S.C., section 3, with respect to various substantive offenses committed by his codefendants, all of which stem from the Sentry theft.

The government contends that evidence exists that early in January 1983 Argitakos delivered a padlocked blue footlocker to a friend, Steve Panagopolous, at East Greenbush, near Albany, New York, requesting Panagopolous to hold the footlocker until Argitakos returned in several weeks from a trip to Montreal, on which he was then enroute. Soon after the footlocker was left with Panagopolous, he read in the public press about the arrest of Eddie Argitakos in connection with the Sentry robbery. Panagopolous knew that Eddie was the son of Argitakos. He became concerned about his possible involvement in the Sentry affair by reason of his possession of the footlocker, the contents of which he was unaware. He consulted an attorney, who, with Panagopolous' consent, delivered it to the Federal Bureau of Investigation ("FBI"). Upon an affidavit by an FBI agent, a search warrant was issued and when the warrant was executed the locker was found to contain approximately $392,000 in United States currency. The government asserts that at trial it will prove that the $392,000 consists in part of a portion of $1,500,000 in currency belonging to a patron of Sentry which was stored on its premises the night of the theft.

There are three motions before the Court. Argitakos moves (1) for a separate trial pursuant to Fed.R.Crim.P. 14, and (2) to suppress the footlocker and its contents. The government moves pursuant to the Speedy Trial Act, 18 U.S.C., sections 3161(h)(3) and (8), for a finding by this Court excluding time from the operation of the Act based upon the absence and unavailability of Panagopolous, an essential witness. We consider each motion separately.

A. MOTION FOR A SEPARATE TRIAL

Argitakos does not raise any issue regarding the propriety of joinder under Rule 8(b). His motion is based solely upon Rule 14, which provides:

If it appears that a defendant or the Government is prejudiced by a joinder ... of defendants ... for trial together, the court may ... grant a severance of defendants or provide whatever other relief justice requires.

A defendant seeking a Rule 14 severance bears a "heavy burden" of showing that he will suffer "substantial prejudice" from a joint trial.¹ Substantial prejudice does not mean merely a better chance of acquittal.² The prejudice must be of such a degree that the defendant's rights cannot be "adequately protected by appropriate admonitory instructions to the jury,"³ and such that, without a severance, he would "not receive a fair trial."⁴ Absent such a showing the defendant's request for a separate trial must give way to the public interest in avoiding unnecessary duplicative efforts, trial time and expense.⁵

The defendant advances several contentions as to how a joint trial will prejudice him. First, he stresses that the proof against his codefendants is stronger than the evidence against him and that he is alleged to have played a lesser, peripheral role in the criminal scheme. But the law is clear that simply because the evidence against codefendants is stronger or that one defendant's role in the crime is lesser than that of others is not sufficient reason to grant a severance.⁶ A statement made by our Court of Appeals in United States v. Aloi is apropos:

Quite naturally in any multi-defendant trial there will be differences in degree of guilt and possibly degree of notoriety of the defendants. There may be some likelihood that proof admitted as to one or more defendants will be harmful to the others. However, this possibility does not necessarily justify individual trials.⁷

The defendant also contends that he will be unduly prejudiced by being jointly tried with his son, both because of the "spillover" effect of the evidence against his son, and because he will be deterred from testifying on his own behalf lest his testimony incriminate his son. As to the first claim, joint trials of close relatives have been upheld.⁸ The Court is of the view that a properly instructed jury will be able to segregate the evidence as to father and son and render a fair and impartial verdict as to each. As to the second claim, which was advanced for the first time at oral argument by defendant's counsel without any indication of the nature of the testimony, the law is clear that:

It is axiomatic that `the mere presence of hostility among defendants or the desire of one to exculpate himself by inculpating another are insufficient grounds to require separate trials. To obtain a severance on the ground of conflicting defenses, `at the very least, it must be demonstrated that a conflict is so prejudicial that differences are irreconcilable, and that the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty.'"⁹

The defendant has clearly not met this standard. He has merely raised the possibility of a conflict without any explanation of how his anticipated defense will be logically inconsistent with whatever defense is to be offered by the son.

The ultimate question on a motion for severance is:

Whether, under all the circumstances of the particular case, as a practical matter, it is within the capacity of the jurors to follow the court's admonitory instructions and accordingly to collate and appraise the independent evidence against each defendant solely upon that defendant's own acts, statements and conduct. In sum, can the jury keep separate the evidence that is relevant to each defendant and render a fair and impartial verdict as to him? If so, though the task be difficult, severance should not be granted.¹⁰

The charges against Steve Argitakos are straightforward and essentially based upon his leaving the footlocker with Panagopolous; indeed, the entire case against all five defendants is relatively simple and concise. The Court has no doubt that a properly instructed jury will be able to compartmentalize the evidence against each defendant and render a fair verdict as to each. Since considerations of judicial economy strongly favor a joint trial here, and substantial prejudice has not been shown, the motion for severance is denied.

B. MOTION TO SUPPRESS THE FOOTLOCKER AND ITS CONTENTS

The defendant claims his Fourth Amendment right was violated when Panagopolous, through his attorney, delivered the footlocker to the authorities, who searched it under the authority of the search warrant. The government argues preliminarily that the defendant lacks standing to suppress the evidence of the footlocker or its contents because he has not alleged any facts giving rise to a legitimate expectation of privacy in these items, and that his reliance on the now defunct doctrine of "automatic standing" enunciated in Jones v. United States¹¹ is clearly misplaced. Even assuming arguendo, however, that the defendant has standing, it is clear that the Fourth Amendment was not violated here.

First, the delivery of the footlocker to the FBI by the attorney is not a constitutional violation because the Fourth Amendment limits only the government, not private citizens.¹² It is well established that a person who has been duped into holding stolen property has the right promptly to establish his innocent role in the transaction and to exculpate himself by voluntarily delivering the contraband to the authorities.¹³

Next, since the search of the footlocker was conducted pursuant to warrant, the search is valid unless the affidavit in its support did not establish probable cause to believe a crime had been committed of which the fruits could be found in the footlocker.¹⁴ As the Supreme Court has recently reiterated:

Probable cause is a flexible, commonsense standard.... A `practical, nontechnical' probability that incriminating evidence is involved is all that is required .... `The process does not deal with hard certainties, but with probabilities.... The evidence must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.'"¹⁵

With these considerations in mind, we turn to the affidavit submitted to the Magistrate who issued the search warrant. The information set forth therein is as follows: (1) that the FBI knew that a robbery had occurred at the Sentry premises on December 13, 1982, and that four men, including Eddie Argitakos, had been arrested in connection with the robbery; (2) that on February 7, 1983, the FBI had seized a garbage bag filled with money apparently taken in the Sentry robbery from the Westport, Connecticut home of the in-laws of one of the arrested men; (3) that a report of this seizure was carried in the Albany Times-Union and The New York Times; (4) that, as recounted to the FBI by an attorney representing an...