834 F.2d 1334 (7th Cir. 1987), 86-2817, United States v. Valona

Docket Nº:86-2817.
Citation:834 F.2d 1334
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. James J. VALONA, Defendant-Appellant.
Case Date:November 20, 1987
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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834 F.2d 1334 (7th Cir. 1987)

UNITED STATES of America, Plaintiff-Appellee,


James J. VALONA, Defendant-Appellant.

No. 86-2817.

United States Court of Appeals, Seventh Circuit

November 20, 1987

Argued May 27, 1987.

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Stephen M. Glynn, Shellow, Shellow & Glynn, S.C., Milwaukee, Wis., for defendant-appellant.

Francis D. Schmitz, Asst. U.S. Atty., Milwaukee, Wis., Eric J. Klumb, R. Jeffrey Wagner, Asst. U.S. Attys., Patricia A. Gorence, U.S. Atty., for plaintiff-appellee.

Before WOOD, FLAUM, and EASTERBROOK, Circuit Judges.

HARLINGTON WOOD, Jr., Circuit Judge.

On May 11, 1983 the defendant, James J. Valona, attempted to purchase ten kilograms of cocaine from an undercover agent. Federal agents arrested and released Valona the same day. A paid government informant, Arthur Rapkin, was instrumental in arranging the attempted buy. On July 2, 1985 the grand jury returned an indictment against Valona, charging that he attempted possession of cocaine with an intent to distribute, criminalized by 21 U.S.C. Secs. 841, 846. The jury returned a guilty verdict on the charge.

Valona raises three issues on appeal: 1) whether or not a twenty-eight month delay between the arrest and unsealing of the indictment, during which time a potential defense witness died, violates due process under the fifth amendment; 2) whether or not it was error for the trial court to deny Valona's request for the informant Rapkin's prior criminal record, record of performance as an informant, and details of the consideration he received; and, 3) whether or not the government's "pre-targeting" of Valona, providing Valona with cocaine, and entering into a contingent fee

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arrangement with Rapkin constitutes outrageous conduct. We find no error, and for the reasons discussed below, we affirm defendant Valona's conviction.


William Hehr, a Special Agent with the Drug Enforcement Agency (DEA), approached Arthur Rapkin about assisting in drug investigations. At that time Rapkin lived outside of Wisconsin. He agreed to assist in such activities if he received approximately ten percent of the value of any contraband, fruits, or instrumentalities of criminal activity recovered with his assistance. The reduction or elimination of any pending or contemplated charges against Rapkin did not figure into the deal. Rapkin also requested that the government keep his identity confidential for an indefinite period. The DEA-Rapkin agreement, including the ten percent and confidentiality provisions, was consummated. The government supplied Rapkin with sufficient funds to pay his travel expenses to Milwaukee, where one of his assignments included involvement in an operation in which undercover government agents attempted to sell cocaine to a suspected drug trafficker. This suspected trafficker was the defendant James J. Valona.

Rapkin and Valona had a previous social and/or business relationship. It is not clear how Rapkin reestablished contact for this undercover operation, nevertheless, he met with Valona and gained his confidence. On April 22, 1983 Rapkin introduced Valona to "Joe Berghart", claiming Berghart was a chemist capable of manufacturing cocaine hydrochloride of high purity. Actually Berghart was an undercover DEA Agent, Melvin Schabilion. This April 22 meeting took place at a Brookfield, Wisconsin restaurant.

During this meeting Valona learned that Schabilion had a sample of the cocaine he was capable of manufacturing. Valona indicated he had access to a mass spectrometer, a testing instrument that could be used to test the purity of cocaine. Apparently Valona said that if testing showed that the cocaine was as pure as Schabilion claimed, he and his associates might want to purchase up to twenty kilograms of the drug.

From the restaurant the three, Valona, Schabilion, and Rapkin, proceeded to Rapkin's car. There Schabilion handed Valona a package containing three and one-half grams of cocaine, cocaine that Rapkin apparently told Valona was available for testing. This ended the April 22 meeting.

Rapkin spoke with Valona several times between April 22, 1983 and May 11, 1983. Valona agreed to purchase ten kilograms of cocaine for $450,000, and Rapkin communicated this to Schabilion. It was agreed that on May 11 Valona would bring the money to the Marriott Hotel in Brookfield to effectuate the money for cocaine exchange.

As planned, Rapkin and Schabilion positioned themselves in a room in the Marriott on the 11th of May. Valona called several times to let them know he was on his way but running a bit late. He arrived between 5:30 and 6:00 p.m. Schabilion and Rapkin asked that Valona show his cash before they displayed the cocaine. This was agreeable as was the request that Schabilion accompany Valona to a Waukesha apartment, where the purity of the cocaine could be tested. Valona let it be known that if the ten kilograms tested as positively as the three and one-half gram sample, he and his associates would be interested in purchasing up to twenty-five kilograms of the drug the following week.

Valona left and then returned to the Marriott room carrying a suitcase containing two brown paper bags. The bags contained currency totalling $285,000. Falling short of the agreed upon $450,000 purchase price, Valona asked that Schabilion accept collateral to secure the remaining balance for a period of one week. Once again Valona left the room, and when he next returned he carried the same suitcase, this time filled with jewels, coins, and appraisal sheets, as well as the $285,000 in currency. He told Schabilion he had additional silver coins in the hotel, which were too heavy to carry to Schabilion's room. Valona called someone whom he identified as "JB" and

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asked that he bring the additional coins to Schabilion's room.

Schabilion and Valona agreed that they would leave the hotel and place the currency and collateral in Schabilion's car, transfer the cocaine from Schabilion's car to Valona's car, obtain the additional coins from JB, and finally drive to the Waukesha apartment to test the cocaine.

They got as far as opening their respective trunks. The trunk opening was a prearranged signal that triggered the action of federal agents who arrested Valona and Schabilion. Valona was held at the DEA office for approximately one and one-half hours and released.

Although Valona had been arrested May 11, 1983, the grand jury did not return an indictment against him until July 2, 1985. The indictment remained sealed until September 13, 1985, at which time Valona was arraigned.

During the period of time between Valona's 1983 arrest and his 1985 indictment it appears that the government sought his assistance in criminal investigations. Also, during the greater part of this period the government continued to keep Rapkin's identity confidential. This changed sometime around March 22, 1985, when the government-informant agreement was modified, and Rapkin's name was divulged, although under the modified agreement he was still excused from any role as a witness in the Valona case. This modification apparently resulted from the government's determination that Rapkin had somehow breached the agreement; therefore, he could not expect the government to honor the agreement, including that portion requiring Rapkin's identity to remain confidential. With the confidentiality barrier removed, the government moved ahead in its prosecution of Valona.


  1. Twenty-Eight Month Delay

    Valona was arrested on May 11, 1983 and indicted July 2, 1985. He claims that the government's delay in bringing the indictment led to the unavailability of an important defense witness, Thomas Daniels. Daniels died in a plane wreck in the spring of 1985. On November 26, 1985 the magistrate denied Valona's request for an evidentiary hearing on his claim of pre-indictment delay and recommended that Valona's motion to dismiss based on that same claim likewise be denied. The magistrate reasoned that it was unlikely that Daniels would testify, and if he did, his testimony was not clearly exculpatory. Even assuming that substantial prejudice occurred the magistrate went on to find that the government's reason for the delay, to protect the identity of an informant, was a proper motive. In the pretrial order the trial court adopted the magistrate's recommendation and at the end of trial denied Valona's motion for judgment notwithstanding the verdict, in part finding the pre-indictment delay issue had been previously considered and denied.

    The statute of limitations is the primary source of repose and protection from prosecutions based on stale evidence. United States v. Marion, 404 U.S. 307, 322, 92 S.Ct. 455, 464, 30 L.Ed.2d 468 (1971). "The Supreme Court, however, has held that the due process clause of the fifth amendment provides some protection against pre-indictment delay that has caused such substantial prejudice to the defendant as to outweigh the government's reasons for delay." United States v. Williams, 738 F.2d 172, 175 (7th Cir.1984) (citing inter alia United States v. Lovasco, 431 U.S. 783, 789, 97 S.Ct. 2044, 2048, 52 L.Ed.2d 752 (1977)).

    The trial court undertook the proper two-step analysis for determining the merits of a claim of prejudice based on pre-indictment delay. First, the defendant must establish that he has suffered actual and substantial prejudice. Lovasco, 431 U.S. at 789-90, 97 S.Ct. at 2048; Marion, 404 U.S. at 324-26, 92 S.Ct. at 465-66. See, e.g., United States v. Wellman, 830 F.2d 1453 (7th Cir.1987); United States v. Antonino, 830 F.2d 798 (7th Cir.1987). "Proof of actual prejudice makes a due process claim concrete and ripe for adjudication, [and] it [does not] make[ ] the claim

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