testimony was false, but that defendant was not indicted until June 9, 1988.
The United States Supreme Court noted in United States v. Marion, 404 U.S. 307, 30 L. Ed. 2d 468, 92 S. Ct. 455 (1971), that "'the applicable statute of limitations . . . is . . . the primary guarantee against bringing overly stale criminal charges.'" Id. at 322 (quoting United States v. Ewell, 383 U.S. 116, 122, 15 L. Ed. 2d 627, 86 S. Ct. 773 (1966)). The Court recognized, however, that if preindictment delay is so substantial as to prejudice a defendant's right to a fair trial, the Due Process Clause of the Fifth Amendment may necessitate dismissal. Id. 404 U.S. at 324.
To prevail on his claim that the Due Process Clause requires this case to be dismissed, the defendant must demonstrate first, that he was actually prejudiced by the preindictment delay; and second, that the delay was a purposeful device to gain a tactical advantage over the accused. Marion, 404 U.S. at 324.
Simply demonstrating either prejudice or intentional delay alone is not sufficient to establish this claim. United States v. Lovasco, 431 U.S. 783, 790, 52 L. Ed. 2d 752, 97 S. Ct. 2044 (1977) (" Marion makes clear that proof of prejudice is generally a necessary but not sufficient element of a due process claim, and that the due process inquiry must consider the reasons for the delay as well as the prejudice to the accused"); see United States v. McClure, 153 U.S. App. D.C. 370, 473 F.2d 81, 83 (1972) (finding delay that was "unquestionably " unreasonable, but affirming conviction because of absence of actual prejudice).
In this case, defendant has not established that he is entitled to dismissal for preindictment delay. First, the defendant fails to establish actual prejudice. Defendant asserts only that "it is extremely difficult to recall the specifics of [events] that occurred eight or more years ago." Defendant's Motion to Dismiss Indictment for Preindictment Delay at 5. Defendant further notes that he experienced a family tragedy in 1986 which "drained [his] energy and emotional resources, and contributes to the diminution of his memory of preceding events." Id. As the government notes, the defendant does not allege that his memory has in fact failed -- only that "it is extremely difficult" to recall the events of several years ago.
The Court of Appeals for this Circuit interpreted the Supreme Court's opinion in Marion to reject the "faded memory" argument. In United States v. Bridgeman (Matthews), 173 U.S. App. D.C. 150, 523 F.2d 1099 (1975), cert. denied, 425 U.S. 961, 48 L. Ed. 2d 206, 96 S. Ct. 1743 (1976), the Court noted that defendants had alleged "only a general dimming of memories and loss of evidence, varieties of prejudice the Marion court specifically rejected as 'not in themselves enough to demonstrate that [defendants] cannot receive a fair trial.'" Id. 523 F.2d at 1112.
Defendant also points out the circumstances that have changed and argues that the delay "has unnecessarily increased the difficulty of mounting a defense in this case." Defendant's Motion to Dismiss Indictment for Preindictment Delay at 5-6. Even accepting defendant's contention at face value, this falls far short of establishing actual prejudice. Courts have rejected many substantial "difficulties" encountered by defendants as failing to establish actual prejudice. See United States v. Jones, 808 F.2d 561, 567 (7th Cir. 1986) (bald assertions that one witness became unavailable and another witness' memories faded not sufficient to show prejudice), cert. denied, 481 U.S. 1006, 107 S. Ct. 1630, 95 L. Ed. 2d 203 (1987); United States v. Russo, 796 F.2d 1443, 1451 (11th Cir. 1986) (general allegations of prejudice due to lost witnesses and evidence insufficient to establish prejudice); United States v. Duncan, 763 F.2d 220, 222 (6th Cir. 1985) (assertion that witness who was once willing to testify is now unwilling is insufficient prejudice to justify dismissal).
The defendant also fails to establish that the delay between testimony and indictment was a "purposeful device to gain a tactical advantage over the accused," the standard articulated by the Supreme Court in Marion, 404 U.S. at 324. The defendant's argument with respect to the second test is that "the United States had sufficient grounds to seek the indictment of Philip Mahoney immediately after his grand jury testimony, but it deliberately delayed taking any such action." Defendant's Motion to Dismiss Indictment for Preindictment Delay at 2 (emphasis provided). At another point in his motion, defendant argues that "the attorneys of the Antitrust Division had a basis to conclude that Mahoney did participate in bid rigging well in advance of his grand jury testimony. [In fact,] Department of Justice attorney L. John Schmoll approached Peter White, then counsel for Mahoney [immediately upon releasing Mahoney from the grand jury] and expressed his opinion that Mahoney had not been truthful." Id. at 4 (emphasis mine). The gist of defendant's argument is that it was incumbent on the United States to seek an indictment as soon as the government suspected Mahoney or as soon as it had probable cause.
The United States Supreme Court rejected a similar argument in United States v. Lovasco, 431 U.S. 783, 52 L. Ed. 2d 752, 97 S. Ct. 2044 (1977):
It requires no extended argument to establish that prosecutors do not deviate from "fundamental conceptions of justice" when they defer seeking indictments until they have probable cause to believe an accused is guilty; indeed it is unprofessional conduct for a prosecutor to recommend an indictment on less than probable cause. It should be equally obvious that prosecutors are under no duty to file charges as soon as probable cause exists but before they are satisfied they will be able to establish the suspect's guilt beyond a reasonable doubt.