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October 17, 1983


The opinion of the court was delivered by: WEINFELD


 Petitioner Demetrious Papadakis, and codefendants Christos Potamitis, Eddie Argitakos, Nicholas Gregory, and Steve Argitakos, are accused of conspiring to steal money and other valuable property from the Sentry Armored Courier Corporation ("Sentry"), in Bronx, New York. In addition, Papadakis, Potamitis, Gregory, and Eddie Argitakos are accused of the substantive offenses of stealing property belonging to various banks (the deposits of which are insured by the Federal Deposit Insurance Corporation), as well as food stamps, from Sentry on December 12, 1982, and transporting the proceeds of the larceny in interstate commerce. Steve Argitakos is further charged with aiding and abetting his codefendants and acting as an accessory after the fact by concealing the proceeds of the larceny from law enforcement officials. Papadakis now moves, pursuant to Fed. R. Crim. P. 14, for a separate trial from his codefendants, upon an allegation that his defense will be so antagonistic to, and irreconcilable with, the defenses he anticipates that Eddie and Steve Argitakos will offer that he will be unduly prejudiced and denied a fair trial if tried with them.

 To sustain its burden of proof against Papadakis, the government has indicated that it will offer at least the following evidence: (1) on November 27, 1982, Papadakis participated in a discussion with Eddie Argitakos and George Legakis (who is not named as a defendant in the indictment) about a "stake-out" of Sentry; (2) at various times in the course of the conspiracy, codefendants Eddie Argitakos and Gregory identified Papadakis as a member of the conspiracy; (3) Papadakis has a longstanding close personal relationship with codefendant Gregory; (4) following the December 12th larceny, the FBI found $379,000 of the proceeds of the larceny in the home of Papadakis' in-laws, Mr. and Mrs. Skiadas, to which Papadakis had a key and where he often visited.

 Papadakis, through his attorney, asserts that he will not contest that there was a conspiracy to steal, or that the substantive offenses were committed, but will deny that he played any part in either. Papadakis has not indicated, as is his right, whether he will testify at his trial. To resist the government's charges, it appears that Papadakis will rely upon evidence that Steve Argitakos is the brother of Mrs. Skiadas (Papadakis' mother-in-law) and that he listed the Skiadas home as his residence in applying for a Connecticut driver's license. Based upon that evidence, Papadakis' attorney intends to urge upon the jury that Steve Argitakos and his son Eddie, the nephew of Mrs. Skiadas, also had access to the Skiadas home and that a reasonable inference is that the Argitakoses, not Papadakis, secreted the stolen proceeds there. Further, Papadakis' attorney states that he will seek to impeach Eddie Argitakos' alleged statements that Papadakis was a member of the conspiracy. Papadakis anticipates, based on conversations with their counsel, that the Argitakoses will either point the accusing finger back at Papadakis, or that they will deny that there was a larceny and argue that the money was instead embezzled by another defendant or by unknown persons. In either event, Papadakis claims that his defense is so irreconcilable with the defenses that he believes Steve and Eddie Argitakos will offer that a severance is warranted.

 The petitioner's claim for severance is without merit. As a general rule, persons jointly indicted should be tried together, "particularly so where the indictment charges a conspiracy or a crime which may be proved against all the defendants by the same evidence and which results from the same or a similar series of acts." *fn1" While a joint trial may not be held at the expense of a defendant's right to a fair trial, "the public interest in avoiding duplicitous, time-consuming, and expensive trials is such that separate trials of jointly indicted defendants . . . should be granted only when it appears that a joint trial will prejudice one or more defendants." *fn2" A party claiming prejudice must show more than mere hostility between one or more defendants; indeed, he must do more than merely anticipate that one defendant may try to save himself at the expense of another. *fn3" Instead, to establish a level of antagonism between the defenses of the codefendants that compels severance, petitioner must show that "the jury, in order to believe the core of testimony offered on behalf of that defendant, must necessarily disbelieve the testimony offered on behalf of his codefendant." *fn4" Such is not the case here.

 Papadakis has not shown the required level of antagonism between him and the Argitakoses. The jury need not disbelieve one in order to believe the other. Instead, the jury could disbelieve the defenses of both Papadakis and the Argitakoses and find that each of them played a role in placing the money in the Skiadas home. Or the jury could believe that neither Papadakis nor the Argitakoses placed the money at the Skiadas home, but nevertheless find that one or all of them played some role in aiding the concealment. *fn5"

 Further, the jury could believe Papadakis' assertion that it was the Argitakoses who placed the money in the Skiadas home, and that Papadakis played no role in that concealment, yet still find Papadakis guilty of the conspiracy and substantive crimes. Papadakis' attempt to clear his name by accusing the Argitakoses rests entirely upon an assumption that because Steve Argitakos listed the Skiadas address as his own in his driver's license application, and because he is related to Mrs. Skiadas, he and his son had access to the Skiadas home. There is not, on this motion, evidential support for this assumption. The government makes no claim that the Argitakoses had access to the Skiadas home. To the contrary, it contends its proof will be directed to Papadakis and asserts that while it has no direct proof that Papadakis placed the money in the Skiadas home, it will rely on the expected testimony of the Skiadases that (1) they were unaware of the presence of the money in their home; (2) it was found in an area of the house that is not generally accessible; (3) there had been no break-ins at their home from December 12, 1982 (the date of the larceny) through February 7, 1983 (the date the money was discovered in the home); and (4) the only persons with access to the house were their two daughters and Papadakis, their son-in-law. Even assuming that the jury will draw the inference Papadakis urges rather than believe the expected testimony of the Skiadases, the jury would have other evidence upon which it could find Papadakis guilty of the conspiracy and the substantive crimes. The link between Papadakis and the money found in the Skiadas home is but one link in the chain of the evidence against Papadakis. The remainder of the evidence is not insubstantial. As noted above, the government intends to prove that prior to the alleged larceny, Papadakis participated in at least one discussion about a "stake-out" at Sentry, and that Papadakis was identified by other alleged co-conspirators as a member of the conspiracy. The jury could find Papadakis guilty upon that evidence, without regard to whether the Argitakoses or any other person placed the money in the Skiadas residence.

 In sum, the crux of Papadakis' defense apparently will be that the evidence is insufficient to establish his participation in the conspiracy or the larceny. Similarly, the Argitakoses are expected to argue that there is insufficient evidence to sustain the charges against them. While the three may completely disagree on a detail of the facts -- who had access to the Skaidas home and concealed proceeds of the larceny there -- the "essence or core of each defendant's defense -- non-involvement in criminal activity -- [is] not in conflict." *fn6" The jury could accept the defense theories of both Papadakis and the Argitakoses, or of only one, or of neither; accordingly, Papadakis will not suffer sufficient prejudice to compel severance.

 Petitioner, on the eve of trial, also urges that a severance is necessary because he needs time to locate Steve Panagopolous, who testified before the Grand Jury and upon whose testimony Count Five of the indictment, charging Steve Argitakos with concealment of another portion of the proceeds of the Sentry theft in East Greenbush, New York, is based. Papadakis asserts that Panagopolous' testimony is essential because it would give support to his claim that it was one of the Argitakoses, not Papadakis, who placed the stolen proceeds in the Skiadas home. Long before Papadakis' belated claim that Panagopolous is a material witness in support of his defense, the government had urged that he was a material witness for the prosecution with respect to Count Five; in fact, at its request, several adjournments were granted pending its efforts to locate and effect the return of Panagopolous, who made an unexpected trip to Greece in May 1982, soon after he testified before the Grand Jury. *fn7" It is not known whether he left the United States (and his wife and child) because of threats or fear for his safety. Thus far the efforts of the State and Justice Departments to locate him in Greece have been unsuccessful. Since it appears he is unavailable, despite continued governmental efforts, there is no basis for indefinite delay. Papadakis has offered no evidence to indicate that he will be more successful in locating Panagopolous and securing his attendance as a witness than the government has been. Moreover, as noted above, testimony from Panagopolous or others tending to indicate that Steve Argitakos played a role in the larceny or in the concealment of its proceeds will not necessarily prove that Papadakis is innocent. Indeed, Panagopolous' testimony relates only to money allegedly concealed in East Greenbush, not to the money found in the Skiadas home -- which is the issue upon which Papadakis anticipates that he will be at odds with the Argitakoses. In addition, the government maintains that it will attempt to offer into evidence Panagopolous' grand jury testimony, and that even without that testimony, it has sufficient other evidence to prove Argitakos' guilt.

 The motion for severance is denied.

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