U.S. v. Anagnostou

• Decision Date: 27 October 1992
• Docket Number: No. 91-3263,91-3263
• Citation: 974 F.2d 939
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Vasilios ANAGNOSTOU, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 939

974 F.2d 939

UNITED STATES of America, Plaintiff-Appellee, v. Vasilios ANAGNOSTOU, Defendant-Appellant.

No. 91-3263.

United States Court of Appeals, Seventh Circuit.

Argued May 28, 1992.

Decided Sept. 10, 1992.

Rehearing Denied Oct. 27, 1992.

Barry R. Elden, Asst. U.S. Atty., Haywood E. McDuffie (argued), Office of the U.S. Atty., Criminal Receiving, Appellate Div., Chicago, Ill., for plaintiff-appellee.

Robert H. Aronson, Chicago, Ill., argued, for defendant-appellant.

Before CUMMINGS and FLAUM, Circuit Judges, and LEE, District Judge. ^*

FLAUM, Circuit Judge.

A jury convicted Vasilios Anagnostou of using an explosive device to destroy his restaurant, 18 U.S.C. § 844(i), and of mail fraud for filing an insurance claim to collect on the resulting property loss. 18 U.S.C. § 1341. On appeal, Anagnostou contends his due process rights were violated by a nearly five-year delay between the explosion and his indictment, and also challenges the sufficiency of the evidence and the jury instructions. We affirm.

I.

In 1977, Anagnostou opened the Honey Bee Snack Shop (the restaurant) in Mount Prospect, Illinois, which he owned and operated for the next eight years. On the afternoon of November 25, 1985, Peter Anthony, an old friend and regular patron, entered the restaurant to have a cup of coffee. Anagnostou told Anthony that he thought there might be a problem with his kitchen stove owing to a gas odor emanating from the kitchen earlier that day. Anthony, who had experience as a general contractor and carpenter, thought that the "flex" pipe on the back of the stove looked old, and told Anagnostou they should replace it. After picking one up at a hardware store across the street, Anthony, using some wrenches from his car, replaced the pipe and completed his work by 5:00 p.m. The staff left by 10:00 p.m. and Anagnostou and his family closed the restaurant by 10:30 p.m.; after stopping off to see his accountant, Anagnostou went home to bed.

Just two hours later, at approximately 12:30 a.m., an enormous explosion destroyed the restaurant. Firefighters extinguished the blaze, bulldozing the front of the building in the process, and local fire investigators and agents from the federal Bureau of Alcohol, Tobacco, and Firearms (ATF) immediately began an investigation into its cause. They suspected a natural gas explosion from the start: a witness observed a fireball, the roof had been blown off, brick walls were knocked down, and debris scattered more than 100 feet. Investigators traced the main gas line into the building and to the kitchen, where it supplied all of the appliances in the restaurant through flex pipes connected to the main line. The pipe entered the restaurant through the wall behind the stove. Investigators discovered the stove resting roughly one foot away from the wall with the gas shut-off valve removed from the protruding main gas line and laying on the floor behind the stove. Threads on the pipe were all intact and the valve assembly had a fresh tool mark on it. Fire investigators removed the pipes and valve assembly and forwarded them to a laboratory in Washington, D.C., for further examination.

ATF agents interviewed Anthony on December 10, 1985, and again on February 11, 1986, to determine what he did behind the stove. Anthony told them that he replaced only the stove flex pipe and did not disconnect any other valve or pipe; after replacing the flex pipe, he tightened it with a wrench and then lit a match to make sure the connections were properly sealed. He further told investigators that he did not detect the smell of gas after completing his repairs. Investigators also learned from others that by 5:00 p.m. the stove had been pushed back against the wall, that the restaurant's cook, James Alikakos, then used the stove without any problems, and that neither he nor anyone else noticed the smell of gas in the kitchen.

As the investigation unfolded, evidence suggested that Anagnostou might have deliberately set-off the explosion. Just weeks before, Anagnostou received word from his insurance agent that the company insuring his restaurant had sent out a non-renewal notice, terminating coverage on December 1, 1985. Other evidence indicated that Anagnostou's business and personal finances were in decline and that he exhibited unusual behavior on the day of the explosion.

A federal grand jury returned a two-count indictment against Anagnostou on November 14, 1990. As will soon become relevant, Anthony died just one month later, on December 16. After a six-day trial in July 1991, a jury convicted Anagnostou on both counts. The district court sentenced Anagnostou to 36-months imprisonment and three years probation, and stayed the sentence pending the outcome of this appeal.

II.

Anagnostou's principal contention is that a delay of nearly five years between the restaurant explosion on November 26, 1985, and the return of the indictment on November 14, 1990, substantially prejudiced his defense because of Anthony's death in December 1990 and his resulting unavailability at trial. Anagnostou asserts that Anthony would have explained exactly what he did behind the stove and possibly admitted to disconnecting the main shut-off valve, exonerating Anagnostou of the crime or at least creating a reasonable doubt in the minds of the jurors. He adds that Anthony would have created additional doubt by admitting on the stand that he had limited plumbing experience, and suffered from ailing health and poor eyesight. Anagnostou first made this due process argument in a pre-trial motion to dismiss, which the district court denied.

Although statutes of limitation are the primary safeguard against the potential prejudice--i.e., faded memories, lost evidence, unavailable witnesses--that attends stale criminal charges, the due process clause plays a limited role in protecting against oppressive prosecutorial delay. United States v. Lovasco, 431 U.S. 783, 789, 97 S.Ct. 2044, 2048, 52 L.Ed.2d 752 (1977); United States v. Ashford, 924 F.2d 1416, 1419 (7th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 98, 116 L.Ed.2d 69 (1991). Limited, indeed, for in the twenty-five odd cases we have heard raising this claim, we have never found a pre-indictment delay that rose to the level of a constitutional violation. See United States v. Strauss, 452 F.2d 375 (1971) (first case), cert. denied, 405 U.S. 989, 92 S.Ct. 1252, 31 L.Ed.2d 455 (1972); Ashford, 924 F.2d at 1419 (most recent case). Thus, only the most egregious pre-indictment government delay--that which transgresses "fundamental conceptions of justice" and "the community's sense of fair play and decency," Lovasco, 431 U.S. at 790, 97 S.Ct. at 2049--is proscribed by the constitution. A pre-indictment delay constitutes a due process violation if 1) the delay caused "actual and substantial prejudice" to the defendant's right to a fair trial, and 2) the government delayed the indictment for tactical advantage or some other impermissible reason. Ashford, 924 F.2d at 1419-20. In satisfying the prejudice prong of this test, it is not enough to show the mere passage of time nor to offer some suggestion of speculative harm; rather, the defendant must present concrete evidence showing material harm. ¹ See, e.g., United States v. Nichols, 937 F.2d 1257 (7th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 989, 117 L.Ed.2d 151 (1992); United States v. Antonino, 830 F.2d 798, 805 (7th Cir.1987). Hence, to show prejudice in the context of an unavailable witness, the defendant must offer some grounds for his belief that the absent witness would have helped his case in a material way. See United States v. Doerr, 886 F.2d 944, 964 (7th Cir.1989).

Here, Anagnostou fails to show that Anthony's unavailability prejudiced his defense. United States v. Adams, 834 F.2d 632 (7th Cir.1987), cert. denied, 484 U.S. 1046, 108 S.Ct. 783, 98 L.Ed.2d 869 (1988), is instructive. There the defendant maintained that a three-year pre-indictment delay caused prejudice because two potential witnesses had died in the interim. Id. at 633. The defendant alleged, without any evidentiary support, that one of those deceased witnesses, a close friend and long-time employer, would have exonerated him by confessing that he actually led the stolen car operation charged in the indictment. We upheld the conviction, noting that Adams' "naive speculation" that the deceased witness would have taken the blame was insufficient to meet the burden of showing actual and substantial prejudice. Id. at 634; see also Doerr, 886 F.2d at 964-65. Similarly, Anagnostou speculates that Anthony would somehow have exonerated him had he testified at trial. But there is no evidence to suggest that Anthony would have said anything different from what he told investigators before his death: that he never touched the main gas valve, replaced only the flex pipe, lit a match to check for leaks, and smelled no odor of gas after completing his repairs. Speculation that "something else" may have occurred behind the stove falls short of the concrete showing necessary to prove actual prejudice. See, e.g., Nichols, 937 F.2d at 1261. Indeed, Anthony's absence arguably helped Anagnostou by allowing him to speculate at trial and in closing argument that Anthony's negligence might have caused the explosion, speculation that might well have been foreclosed by Anthony's testimony.

Turning to the second prong of the pre-indictment delay analysis, Anagnostou concedes that the government did not intentionally delay his indictment to gain an unfair tactical advantage. Appellant's Br. at 14. Only bad faith delay is proscribed by the due process clause, and therefore Anagnostou's concession on this point is fatal to his argument. Ashford, 924 F.2d at 1421. We note that even absent that concession, Anagnostou could not have established that the government manipulated the timing of the indictment to gain a tactical advantage because the government...