The opinion of the court was delivered by: WEINFELD
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 connecton 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., section 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.
Substantial prejudice does not mean merely a better chance of acquittal.
The prejudice must be of such a degree that the defendant's rights cannot be "adequately protected by appropriate admonitory instructions to the jury,"
and such that, without a severance, he would "not receive a fair trial."
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.
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.
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.
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.
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, "[a]t 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."
The defendant has clearly not met this standard. He had merely raised the possibility of a conflict without any explanation of how his anticipated defense will be logically inconsistent ...