EDWARD WEINFELD, District Judge.
Eddie Argitakos and Christos Potamitis were convicted in December 1983 after a seven-week jury trial of conspiracy, bank larceny, interstate transportation of stolen property and other offenses. Potamitis was also convicted of making fraudulent statements to the FBI, perjury before the grand jury and obstruction of justice. Steve Argitakos, father of Eddie, was convicted as an accessory after the fact. Demetrios Papadakis was acquitted. The crimes centered about a staged or phony hold-up at the Sentry Armored Courier Corporation ("Sentry") on December 12, 1982, where Potamitis had been employed as a guard. The amount of the theft has been stated at various times generally to be in the sum of $11,000,000 in currency, checks, food stamps and money orders, of which to date approximately $1,500,000 of the stolen funds has been recovered from five locations. The Court imposed upon the defendants Eddie Argitakos and Christos Potamitis, under the different counts, sentences that totalled fifteen years. Steve Argitakos was sentenced to a term of four years. The convictions were affirmed upon appeal.
Also named in the original indictment was Nicholas Gregory, who was a fugitive at the time of the defendants' trial, but who was apprehended in September 1984, and was thereafter tried under a superseding indictment with Gerassimos Vinieris and others not named in the original indictment, but charged with offenses also arising out of the Sentry theft.
Thereafter Argitakos and Potamitis moved under Fed.R.Crim.P. 35(b) for a reduction of their sentences based upon their cooperation with respect to the Gregory-Vinieris trial. On May 29, 1985, the Court granted their respective motions to the extent of reducing the sentence of each to twelve years.
Preliminarily, it is noted that none of the claims now advanced was raised either upon petitioners' direct appeal from the judgments of conviction and the sentences imposed thereunder; nor were the claims presented when petitioners successfully moved for and obtained a three-year reduction of sentence. Accordingly, the Court holds that petitioners, by their failure to do so, waived their claims, all or which were then known to them, particularly since the Court granted relief upon their applications for reduction.
But more important, this Court finds that the claims now advanced are without merit and are belied by the record. At the time of sentencing the Court expressly stated, not once, but several times, that it would not take into account matters controverted by counsel, particularly the references to the alleged connection of the defendants with organized crime and crime figures.
Finally, the patent absurdity of the Court's alleged failure to make a specific finding as to the exact amount of the proceeds of the theft is demonstrated by a stipulation signed by all the defendants in the Argitakos trial, as well as their attorneys, and introduced into evidence at that trial. The stipulation specified that "if appropriate business records custodians and/or other representatives of customers of the Sentry Armored Courier Corporation whose property was stolen from Sentry's premises on the evening of December 12, 1982 were called as witnesses at trial," the testimony adduced would be that a total of $8,750,757.47 in currency, $1,856,096.58 in checks, $288,979 in food stamps, $199,293.91 in currency and checks, $9,911.26 in other property, for a grand total of $11,105,039.22, was stolen from Sentry. Whether the exact amount of cash was more or less than $8,000,000 or $9,000,000 makes about as much difference on the issue of sentence as a grain of sand in the Sahara Desert. There was never any suggestion that, within a month after the staged holdup, as a result Sentry went out of business. A Sentry official testified at the Argitakos-Potamitis trial that approximately 160 to 170 employees lost their jobs when Sentry closed shop in January following the faked holdup. Not the slightest evidential matter has been submitted to challenge this trial testimony.
Potamitis's claim that he was unfamiliar with the presentence report and had not read it is again belied by the record. Several days prior to sentencing, Potamitis's trial counsel submitted a lengthy and detailed memorandum on his behalf. That statement leaves no room to doubt that Potamitis or his counsel had conferred about matters in the presentence report, since counsel's memorandum made detailed references to various portions of the presentence report. It is of significance that no affidavit is submitted by his counsel on this issue nor any explanation for its non-production.
Each defendant, at the time of sentencing, was specifically asked not only if he desired to make any statement on his own behalf and present any information in mitigation of any sentence the Court might impose, but to "set forth any reason why the judgment of the Court should not be imposed upon you." Other than a plea for a lenient sentence, no claim was advanced by any of them, each resting upon his lawyer's statement.
Finally, petitioners are correct that, with respect to the Court's finding that rejected the statements in the presentence report of their alleged connection with organized crime and other matters and references would not be taken into account in sentencing, the Court omitted to make a separate written record of such determination other than as recorded in the sentencing minutes, to be appended to and to accompany the presentence report, as required by Fed.R.Crim.P. 32(c)(3)(D). The omission was a ministerial inadvertence. However, the information was fully set forth in the sentencing minutes, copies of which petitioners' trial counsel had upon their transcription and which their current counsel have had and have presented by them to the Parole Commission. A separate
A fair reading of the sentencing record leaves no room to doubt that the presently alleged claims are virtually de minimis, and that the failure of the Court to direct that its rejection of petitioners' alleged identification with criminal elements be forwarded to the Parole Commission is of little, if any, consequence. The Court's rejection of the allegation is clear and unambiguous.
Overriding petitioners' miniscule and technical contentions,
The respective motions are denied.