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UNITED STATES v. GREGORY

January 29, 1985

UNITED STATES OF AMERICA, against NICHOLAS GREGORY, a/k/a "Nick," a/k/a "Nick the Greek," GERASSIMOS VINIERIS, a/k/a/ "Mike Vinieris," a/k/a "Captain Mike," HOWARD MARSHALL, and RICHARD DiBELLA, Defendants.


The opinion of the court was delivered by: WEINFELD

EDWARD WEINFELD, D.J.

The instant indictment, the subject of a series of motions considered hereafter, is the second stemming from the theft of $11 million in cash, food stamps, and other property during a staged holdup of the Sentry Armored Courier Corporation, Bronx, New York ("Sentry"). Under the prior indictment, five defendants, Christos Poatmitis, Eddie Argitakos, Steve Argitakos, Demetrius Papadakis, and Nicholas Gregory, were charged with various offenses based upon the theft, including conspiracy; in addition, the indictment charged that other persons known and unknown to the Grand Jury were participants in the conspiracy.

 A trial under the prior indictment, which commenced on October 24, 1983 and was concluded on December 7, 1983, resulted in the conviction of Eddie Argitakos, Christos Potamitis, and Steve Argitakos on one or more counts; Demetrious Papadakis was acquitted. Nicholas Gregory was a fugitive at the time of the trial. The judgments of conviction were affirmed upon appeal. *fn1" Familiarity is assumed with the Court of Appeals' opinion and this Court's pretrial rulings with respect to motions made by defendants in the prior indictment, which were also affirmed upon appeal. *fn2"

 Nicholas Gregory was apprehended on September 4, 1984, following which the Grand Jury returned an indictment charging him, Gerassimos Vinieris, Howard Marshall, and Richard DiBella with conspiracy and various substantive crimes arising out of the December 12, 1982 Sentry theft. These defendants, except for Gregory, now make various motions with respect to the latter indictment.

 MOTIONS BY MARSHALL AND DiBELLA

 Marshall attacks the indictment on various grounds. The charges against him in the various counts in which he is named center essentially about a claim that, with respect to $20,000 in currency found during a search under warrant of a jewelry premises owned by him, he gave false information when he appeared before a Grand Jury and again upon the trial of Eddie Argitakos, Christos Potamitis, and two others. Thus, Counts Seven and Eight charge that he gave false material testimony when he appeared before a Grand Jury on April 8, 1983 and when he testified at the trial on November 9, 1983. In these instances he is charged with violations of 18 U.S.C. § 1623, which makes it a crime knowingly to make a false material declaration under oath in any proceeding before a Court or Grand Jury.

 In addition, he is also charged, based upon the very same false testimony before the Grand Jury and the Trial Court, in two separate Counts, Nine and Ten, with violations of Section 1503 of Title 18, the obstruction of justice statute. This section provides in pertinent part that one who

 corruptly . . . endeavors to influence . . . or impede any grand or petit juror, or officer in or of any court of the United States, . . . in the discharge of his duty, . . . or corruptly . . . impedes, or endeavors to influence, obstruct, or impede, the due administration of justice [commits a crime].

 The thrust of the statute extends to investigative activities by authorized agencies, such as the Federal Bureau of Investigation, to a Grand Jury proceeding, or to a trial following indictment. The law is designed to prevent a miscarriage of justice by corrupt methods. *fn3" It is aimed at the widest variety of means and conduct that impede the functioning of the judicial process, whether it be an investigation, a Grand Jury inquiry, or a trial proper. *fn4"

 Here the Government contends that Marshall, by his alleged willful and knowing false testimony with respect to the $20,000 in currency found on his premises, corruptly endeavored to influence, obstruct, to impede the due administration of justice in one instance before the Grand Jury and in another upon the trial proper. It is also alleged that by giving false testimony Marshall committed overt acts in furtherance of the conspiracy charged in Count One. That count charges a conspiracy to commit various crimes related to the Sentry theft, including obstruction of justice and false swearing.

 Marshall first moves to dismiss the conspiracy count upon the grounds that his indictment thereunder was obtained through the use of his immunized testimony and that such testimony will be used against him at trial. He testified before the Grand Jury and upon the trial under a grant of immunity as authorized under 18 U.S.C. § 6002. This section provides that such compelled testimony "or any information directly or indirectly derived from such testimony . . . may [not] be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order."

 Marshall argues that the foregoing exception permitting the Government to use an immunized witness's testimony against him is limited to the crimes specified therein, that is, perjury or giving a false statement, and does not extend to the crime of conspiracy. *fn5" However, the exception also extends to the immunized person "otherwise failing to comply with the order [of immunity]." This undefined clause is comprehensive enough to include a conspiracy to violate the false swearing and obstruction of justice statutes, which violations the instant indictment alleges were among the various objectives of the conspiracy. The sweep of the exception against the use of immunized testimony, under the clause "otherwise failing to comply with the order [of immunity]," extends to any conduct aimed at frustrating the purpose of the grant of immunity. *fn6" A conspiracy allegedly participated in by the immunized defendant by giving false testimony to impede an ongoing investigation, Grand Jury inquiry, or trial proper comes within the scope of the exception. The Government therefore may use Marshall's immunized testimony to prosecute him for participation in the conspiracy charged in Count One and need not establish at a hearing or otherwise that the prosecution is based upon evidence independent of such testimony. Accordingly, this branch of Marshall's motion is denied.

 Next, Marshall, joined by DiBella, argues that the conspiracy ended in February 1983 with the arrest of Eddie Argitakos and Christos Potamitis, admittedly two principal conspirators, and that since the acts attributed to the movants occurred thereafter, and in the instance of DiBella even after the trial of Argitakos and Potamitis and the affirmance of their convictions, the conspiracy count must be dismissed. While it is true that usually a conspiracy terminates upon arrest of the participants and exposure of the conspiracy, *fn7" the existence, duration, and scope of a conspiracy and whether there is a "single" or "multiple" conspiracy present fact issues. *fn8" Here, despite the arrest and conviction of two of the prime conspirators, there was still unrecovered the not inconsiderable sum of $10 million in currency and food stamps and the continued efforts by the authorities to locate the loot and the persons having possession of it or involved in its concealment. In addition and of equal significance, Nicholas Gregory, who the Government alleges was the principal planner of and a participant in the staged holdup and thereafter was in possession of the major portion of the unrecoverred cash and food stamps, was at large and not apprehended until September 4, 1984, more than a year and a half after the arrests of Potamitis and Argitakos. During this period and until his arrest, the Government charges that Gregory was still engaged in various conspiratorial activities. Thus, the Government contends that there was in existence a continuing single, overall conspiracy to effect several of its objectives even after the robbery, or wit: the concealment of the unrecovered cash and food stamps; obstruction of the ongoing investigation by the FBI, the United States Attorney, and the Grand Jury; and hindering the apprehension of other participants in the Sentry affair.

 DiBella, it is charged, played a role in the conspiracy by supplying a rental car to Gregory to conceal his identity, to prevent his detection, and to impede the ongoing investigation to locate and recover the remaining $10 million in currency and food stamps. DiBella's contention that he is entitled to dismissal of the conspiracy charge against him because his acts occurred in August-September 1984, whereas the conspiracy commenced shortly prior to the staged holdup on December 12, 1982 and terminated no later than the arrest of Christos Potamitis and Eddie Argitakos in February 1983, is without substance. As already noted, it is charged that Gregory, a prime conspirator, was still engaged in committing acts in furtherance of various objectives of the conspiracy. It is hornbook law that one may join a conspiracy at any point during its existence and be held accountable for all acts committed before as well as after his joinder to effectuate one or more of its objectives. *fn9" In this instance, one of the objectives, as the indictment charges, was to "conceal, hide and secret the money and property stolen . . . from Sentry on December 12, 1982, in such a way as to attempt to prevent said money and property from being located and recovered by law enforcement officials investigating the theft, and from being traced to, and identified with, the perpetrators." ...


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