U.S. v. Antonino

• Decision Date: 02 October 1987
• Docket Number: No. 86-2062,86-2062
• Citation: 830 F.2d 798
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Anthony ANTONINO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 798

830 F.2d 798

UNITED STATES of America, Plaintiff-Appellee, v. Anthony ANTONINO, Defendant-Appellant.

No. 86-2062.

United States Court of Appeals, Seventh Circuit.

Argued April 2, 1987.

Decided Oct. 2, 1987.

Richard S. Kling, Chicago, Ill., for defendant-appellant.

Lawrence E. Rosenthal, Asst. U.S. Atty., Anton Valukas, U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Before WOOD and CUDAHY, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

ESCHBACH, Senior Circuit Judge.

The dispositive issue in this appeal is whether a delay of over three years between the dismissal of a criminal complaint charging various violations of the narcotics laws and the bringing of a subsequent indictment caused the defendant to suffer actual and substantial prejudice. To show a violation of due process from pre-indictment delay that would require dismissal of the indictment, a defendant must show two things: that the government deliberately delayed bringing the indictment in order to gain a tactical advantage and that the delay caused defendant actual and substantial prejudice in presenting his defense. United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2048, 52 L.Ed.2d 752 (1977). The district court denied defendant's motion to dismiss the indictment, holding that defendant failed to make a showing that he suffered actual and substantial prejudice from the loss of telephone records and of the notes of an FBI agent. We will affirm.

I

Anthony Antonino met in the Holiday Inn in LaSalle-Peru, Illinois, on January 15, 1982, with two men he knew only as Jerry and Larry from Tampa, Florida. Antonino had offered to buy a kilogram of cocaine. Jerry and Larry tendered the cocaine. When Antonino agreed to accept it, the "backup units and surveillance units" that Jerry and Larry had in reserve made themselves known and arrested Antonino. Jerry and Larry were in reality Sergeant Gerald Rademaker of the Tampa Police Vice Control Bureau and Special Agent Lowell Miller of the Drug Enforcement Agency.

Antonino, for his part, was a confidential informant who worked with the Federal Bureau of Investigation. Whether, in procuring the cocaine, he was acting in that capacity or for his own purposes became an issue at his subsequent trial. He was charged with conspiracy to possess and distribute cocaine and marijuana, attempted possession of cocaine with intent to distribute, possession of cocaine and marijuana with intent to distribute, and use of a telephone to further the conspiracy (see 21 U.S.C. Secs. 841(a)(1), 843(b), and 846). Antonino testified that he bought the cocaine in order to use it to set up for arrest the "real" drug dealers in the LaSalle-Peru area. The jury convicted Antonino on all counts.

The indictment against Antonino had not been returned by the federal grand jury until May 21, 1985, some three and one-third years after his arrest. A complaint had been filed against him the day of his arrest. However, on February 3, 1982, the government moved to dismiss the complaint and on February 8, Magistrate Olga Jurco granted the motion.

Antonino contends that the delay of over three years between his arrest and indictment violated both his rights under the Sixth Amendment's Speedy Trial Clause and his due process rights. As discussed below, the first contention fails because his rights under the Speedy Trial Clause did not attach until he was indicted; the pre-indictment delay could therefore not infringe them. The due process contention fails because he did not show the requisite actual and substantial prejudice. To attempt to show prejudice, Antonino contends that evidence to support his defense was no longer available because of the delay. The lost evidence is said to be telephone records and the notes of his FBI contact. He argues that this evidence would have supported his contention that he sought to buy cocaine only in order to help the FBI arrest the "real" drug dealers in the area. We hold that Antonino has failed to make the requisite showing of actual and substantial prejudice.

Many of the facts in this case are undisputed. Some facts were disputed as we will note. Because the central issue involves whether the defense was prejudiced at trial by the unavailability of certain evidence, it is necessary to give facts in considerable detail.

In 1977, Antonino's meat shop was burgled. The FBI investigated the matter. Antonino mentioned to the investigating agent that he had received an offer to buy "a hot load of meat." Antonino agreed to give further information about illegal activity in the Spring Valley area. Spring Valley lies on Interstate 80, convenient to Chicago, Rock Island, Rockford, and Peoria. It is thus a throughpoint for transportation of both legal and illegal cargoes. Antonino testified that he had felt that by becoming an informant for the FBI, he could put himself on a par with some of his friends "a private detective and [ ] the sheriff and the state troupers [sic]."

Antonino's principal contact with the FBI was Special Agent David Hirtz. Antonino and Hirtz spoke often, usually on the telephone, often several times a day. Hirtz made notes in connection with about one-third of these conversations. He used the notes in the preparation of his memoranda; not all the information in the notes was used in the memoranda. Hirtz testified that he included only "personal criminal information" in the memoranda. Many telephone calls, some as long as half an hour, were not represented in the memoranda. After the indictment, Antonino filed a motion for the preservation of the notes. At some point after Antonino's arrest, but before his indictment, Hirtz had thrown the notes away. The memoranda were made available to the defense.

The other type of evidence lost to Antonino was telephone records. Antonino sought to subpoena records of calls from his telephones, those of his partner Rounds, and Hirtz. The parties stipulated at trial that the telephone company did not keep records older than two and one-half years.

Antonino provided information about various illegal matters, including fraud involving federal funds for snow removal, sale of stolen property, meat theft, and white collar crime. At the behest of the FBI, Antonino made it known among those interested that he could be of help in the trafficking of contraband. The FBI used information garnered through Antonino in its investigations. The FBI and Antonino agreed that he would not testify against the people he informed on. Antonino himself had never been arrested or charged with a crime. During part of the period in question here, he occupied the elective office of tax assessor.

At least once, with Hirtz's authorization, Antonino committed acts that, unauthorized, would have been considered crimes. Antonino offered his services to launder the proceeds of a million dollar insurance fraud and went so far as to receive the check, which he later turned over to the FBI.

Hirtz more than once informed Antonino that a confidential informant did not have license to flout the law: "I told him he is not to participate in acts of violence, he is not to use any unlawful techniques for the FBI to obtain information, he is not to initiate a plan to commit criminal acts, he is not to participate in criminal activities with persons under investigation other than those considered necessary by the FBI for purposes of obtaining information needed for federal prosecution."

Antonino also gave information to the FBI about narcotics activity. For instance, he gave information about drug smuggling from the Bahamas involving a certain "Silburn Melt." Another time, he informed Hirtz that a pound of cocaine could be found at the home of one Johnny Harris. He also gave Hirtz the names of various people in the area who he said were involved in the sale of narcotics. Hirtz and Antonino both testified that Antonino never informed the FBI that he himself was involved in any narcotics transactions. Antonino did tell Hirtz that he had been in the Bahamas and in Colombia, saying that he had been gathering information about narcotics smuggling. At this time, the FBI did not investigate narcotics crimes; this was within the bailiwick of the Drug Enforcement Administration (DEA).

William Rounds, an attorney, joined Antonino in running the meat business in 1981. Antonino testified that because he received so many telephone calls and visits at the shop from noncustomers, Rounds asked, "Who the hell are all of these people?" Antonino informed Rounds of his role as a confidential informant and solicited his aid. Antonino's daughter, who worked at the meat shop, was also alarmed by these "creepy" people, who gave only their first names, came into the shop with their shirts hanging open, and screamed and yelled at her father.

Antonino made three trips to the Bahamas, meeting with one Dale Baxter. Baxter testified that the trips had a dual purpose: to start up a lobster export business and to buy cocaine. Baxter testified that Antonino once bought cocaine from a local dealer, Junior Johnson. Baxter also testified that Antonino, dissatisfied with the cocaine's quality, decided to find a new source. Baxter moved back to Illinois, partly because Antonino's refusal to pay the balance of the sum owing on the cocaine made it somewhat uncomfortable for Baxter in the Bahamas.

Baxter further testified to the following: in April of 1981, Antonino and Rounds dispatched him to Tampa with $6,500 in one hundred dollar bills to buy two kilograms of cocaine for them. On arriving in Tampa, Baxter called a number given him by Antonino and Rounds. "Eugene" came to his motel and took him to meet with Jerry and Larry. Eugene was an informer for the DEA. As directed by Antonino, Baxter tested the proffered cocaine by rubbing some on his gums, which duly turned numb. Baxter then displayed the money. Jerry and Larry expressed great surprise at the sum, which was less than one tenth the going rate....