United States v. A. Guy Crouch, III and Michael J. Frye

related, speech a activity. free clause is at 614- 408 U.S. religious matters. seeing of generic, guarantee for a broad may but more Entanglement at 2112-16. 91 S.Ct. activity. range expressive and assoeiational policy or a state implicated where well-acknowledged that neither clause is potential It abnormal an act creates legislative protection activities. unlimited for such 91 offers 403 U.S. at political divisiveness. indicated, well-acknowledged that the equally is state how- It The Court at 2115. may impinge of free exer- the interests will not ever, alone political divisiveness speech proffering a and free without Lynch, 465 U.S. at cise entanglement. create (“... demonstrating compelling state interest this Court at 1365 104 S.Ct. action. necessity of restrictive alone can the political divisiveness held that con- permissible otherwise to invalidate serve that Pol- from the ACLU’s assertion Aside duct”). recognized has also The Court a icy IKFD or to establish establishes tends of kind and “[e]ntanglement question reason, compelling no con- religion, it offers Lynch, 465 U.S. degree.” otherwise, permanent in- or stitutional junction against a senior class’ free choice through prayer at a Policy IKFD which re- its own nothing express thanks I find Thus, ceremony. I enduring entanglement identi- believe the graduation sembles Policy expression IKFD cre- interests of By design and free in Lemon. free exercise fied Regional Highland class of graduating absence of administrative a virtual total ates regard to any High prevail. must With School entanglement sort. divisiveness, Policy involves IKFD

political subsidy to

absolutely sponsorship organization. or related

religious institution which would nothing in the record

There engenders or will Policy

suggest that IKFD political divi- high degree so

engender normal “a threat pose as to

siveness Lemon,

political process.” omitted). (citations On the at 2116 America, UNITED STATES political hand, I not attribute Plaintiff-Appellant, may divisiveness, extent to whatever exist, engen- lawsuit itself which this Guy CROUCH, and Michael A. III ders, Lynch, 465 U.S. Policy IKFD. See Frye, Defendants-Appellees. (“A litigant J. 684-85, 104 S.Ct. at commencing cannot, very act of No. 93-7719. lawsuit, appearance of divi- ... create the Appeals, exploit it as evidence States Court and then siveness any evidence Fifth Circuit. I do not find entanglement.”) satis- and am thus entanglement of excessive May all three Policy IKFD satisfiеs fied Lemon prongs of the test.

III. majority’s challenge closing, I must religious beliefs prevalence of that “the

view obli- the state’s imagery cannot erode spectrum of reli- the entire

gation protect wor- pious from the most preferences

gious atheist.” most committed

shipper Clause Exercise

Opinion at 1488. The Free interference

guarantees religious expressive and assoeiational

state KING, POLITZ, Judge, and Chief

Before HIGGINBOTHAM, GARWOOD,JOLLY, SMITH, DUHÉ, JONES, DAVIS, BARKSDALE, WIENER, M. EMILIO BENAVIDES, DeMOSS, GARZA, DENNIS, STEWART, PARKER and Judges. Circuit GARWOOD, Judge: Circuit savings and prosecution alleged for In this trial, court, offenses, prior to the district loan against Guy Crouch dismissed the (Crouch) (Frye) for and Michael III notwithstanding that delay, pre-indictment not run. Unit- of limitations had the statute Crouch, F.Supp. ed States (S.D.Tex.1993). government appeals. The court, hearing be- following The district judge, concluded magistrate fore constitute sufficiently extensive “to was prejudice” and was presumptive substantial in some actual to “have resulted also shown Characterizing the Id. at 943. prejudice.” as essen- reasons for government’s in- personnel available to tially “insufficient properly prepare,” the district vestigate or “at reasons were concluded weight in the best, only slight entitled process considerations” of due balance “prejudice, actual and outweigh the did Although opining Id. at 946. presumptive.” negli- delay “certainly smacks rec- that “the court determined gence,” the form, justify a ord, present in its [discovery faith, because of finding of bad by ... imposed evidentiary] limitations be ruled Judge, it cannot Magistrate n. 6. 943 & out.” affirmed panel of this Court A divided States the indictment. United dismissal of Houston, TX, Womack, Ca- Paula Guy L. Cir.1995). Crouch, 51 F.3d Turner, Gay- Offerihauser, Lee James mille pre-indict for majority recognized that panel Office, Jones, Attorney’s U.S. Griffin nelle prejudice must triggering “the Houston, TX, plaintiff-appellant. actual, concluded presumptive,” but TX, Jr., Neil Angleton, Jimmy Phillips, L. finding of actual district court’s Houston, TX, McCabe, for Crouch. Colman Id. at supported. adequately prejudice was v. Town Relying on United Kemah, TX, Theo 484-485. King, Edward William (5th Cir.), cert. Houston, Associates, ley, 665 F.2d Pinson, Pinson & W. L.Ed.2d U.S. TX, Frye. (1982), panel majority committee, further held that a member of ap- its loan from prosecutorial faith proximately bad January resigning 1985 until required, and that instead the reasons for September 1986. He was also Delta’s attor- would be balanced the ex- ney, owner, father, and was half with his prejudice. tent of the Crouch аt 483. The company the title ques- at which the loans panel majority government’s held that tion, apparently many loans, other Delta “essentially, manpower lack of arid (for closed. The reasons — seven loans included: two priority investigation the low which this $915,000 $1,439,000) Ferguson, to Robert assigned” outweigh “insufficient investor, —were a real estate broker and and his Frye.” the actual to Crouch and D, Inc., company, Ferguson buy C & Id. at 485. It “requiring concluded that Savings Bankers and Loan Association Frye Crouch and to stand trial now would be (Bankers), federally-insured savings and fundamentally unfair and violative of due Galveston, Texas, loan association located in process.” granted government’s Id. We certain real estate on which Bankers had suggestion rehearing for en bane. (known owned, foreclosed as real estate (for REO); $505,780, $825,300, We now reverse the three loans district court’s order $1,200,000) dismissing Connally the indictment. and to Mark (Connally), We hold that by purchase where the indictment is two of which not barred were from limitations, Ferguson statute of pre-indict- Ferguson pur- dismissal for the REO delay requires appropriate an chased from Bankers and one of which was only operating loan; $3,950,000 capital but prose- also that the one loan Frye, purposely delayed cution real estate investor developer, indictment to and gain advantage company, tactical or for and his Corpora- other bad faith J.M.G. Financial purpose. (J.M.G.), buy tion present We further hold that Delta a Delta REO tract; $1,250,000 support record does not and one finding loan to Shawell and actual, requisite company, Kerry Interests, his Inc., substantial op- Shawell —as posed potential buy justify from Delta another Delta dis- REO tract. —to prior charges entries, missal to. trial. The “Events of the false 18 1006; prejudice, statements, § demonstrate actual U.S.C. false at the 18 U.S.C. 1014; present § appellees’ funds, time misapplication claims 18 U.S.C. 657; speculative fraud, § premature.” 1344; and bank § 18 U.S.C. and Marion, 307, 326, conspiracy § States v. 92 under 18 U.S.C. 371 to commit 455, 466, (1971). 30 L.Ed.2d 468 those offenses. (exe- conspiracy The and the bank fraud BACKGROUND cuting attempting and to execute “a scheme Charged

Offenses Delta”) and artifice to defraud charged The instant indictment two, was returned No- in counts respectively, one and and al- vember It legedly contains 19 December, counts. lasted from “about 1984 counts, Crouch is named a defendant in all continuing through and August on or about Frye and is named a defendant in counts remaining 1985.” The counts are substantive 2, 8, 13, and counts, 18. The other defendant alleged and are to have been commit- charged Shawell, Kerry ted “on or about June 1985” in counts 3 indictment — charged 1, 2, 9, 14, counts and through 19—had and “between June 1985 and pleaded guilty, agreed and cooperate August with through 1985” in counts 15 government, hearing before the through on the charge Counts 3 7 Crouch alone with Frye motions of Crouch and to dismiss for section misapplication 657 of Delta funds as preindictment delay. to, The indictment respectively, con- Ferguson the two loans to loans, cerns seven all of which closed June Connally. the three loans to Count 8 28, 1985, by made Savings Crouch, Delta charges Association by Fiye, aided with section (Delta), federally-insured savings misapplication loan; and loan 657 Frye as to the Alvin, association located charges Crouch, Shawell, Texas. Crouch by count 9 aided Delta, was the Chairman of the Board of and with misapplication section 657 as to the in furtherance to activities count also refers 10, 11, charge Counts loan. Shawell insiders,” by and the conspiracy “Delta entries 1006 false section alone with Crouch particulars states the bill of response loans to the three to, each of respectively, as Cholakian, Gerjes, Crouch, insiders” aided “Delta refers charges Connally. Count Geijes pres- succeeded officer who entry as to a Delta false Frye, with section by Erskin, an- Crouch, May or June charges ident loan; and count Frye government’s gen- officer. Shawell, entry as to the other Delta false with aided forth theory is set 15, 16, charge eral case loan. Counts Shawell Frye’s to dismiss motion response state- below 1014 false with section alone Crouch offense, as charge an follows: three failure to, each respectively, ments as applications. Count Connally loan December, and June “1. Between Frye with section charges Crouch and Crouch, 28, 1985, Robert B. defendant loan; as to statements false a scheme to others Ferguson devised and Shawell charges Crouch count tracts of real of various rid records Delta’s to the Sha- statements as 1014 false section through fore- acquired the thrift estate loan. well required that Part of the scheme closure. willing pre- persons Ferguson provide government’s aspects of the certain While buyers property of the fide tend to be bona clear, entirely it is theory are not of the case purporting to sign loan contracts and to Connally, Frye, and the to loans evident purchase the Delta real their loans, alleged to be nominee all Shawell estate. for being nominees Frye and Shawell with also, Connally plan, Fergu- at least to Ferguson, and of this furtherance In It extent, Ferguson. Frye being a nominee and Shawell defendants son caused theory that government’s personal fi- applications, further be the prepare loan statements, a nominee to some extent of directors’ Connally was also board nancial Barnes and John minutes, of Ben and other partnership corporate the resolutions each status was in as Connally. The defendants portraying nominee the documents part in for the allegedly at least real estate purchasers of Delta instance intended Houston, one avoiding loans to borrower Additional- purpose of Texas. located near Ferguson. The limitations, as to particularly buyers signed Delta loan con- ly, the sham entry section 1014 purchases 1006 false purporting section finance tracts on predicated understanding counts are statement name. It was false in their particular buyers nominee were falsely identifying parties that the named of all Shawell) as (Connally, Frye, and of Fer- on behalf borrower borrowers mere nominee scheme were being parties the true borrower. All to the guson. of nominee borrowers the use aware that count, appears one, cоnspiracy Count one loan to necessary in order to avoid was through 19 essentially allege the counts limitations. borrower con- objects of the as substantive offenses scheme, de- furtherance Crouch, In Frye, alleges that It spiracy. doc- Delta the Frye submitted to fendant other and “with conspired with each Shawell signed as above and described uments individuals, known and unknown.” both supporting the loan particulars, borrower for bill response to a motion wording of the docu- The Gerjes transaction. Carl government identified —who they represented ments was dis- was until he Delta president of was defen- scheme unfamiliar with the persons May during or June charged sometime buy the real estate Frye’s intent dant co- unindicted Ferguson “[t]he 1985—and on the personally liable held and to be government also stated conspirators.” The The purchase. loan for real estate “may cover” “arguably” term any declaration omitted documents Connally.1 conspiracy Barnes and Mark Connally. and Mark gov- diet jury, Barnes grand consistent 1. The same recommendation, in- had declined ernment's $3,950,000 relating the loan was a nominee loan intended to loan to him. To Ferguson, Frye borrower, benefit defendant Crouch and show knew he was a nominee government others. rely stated it would on ex- pected testimony Gerjes Ferguson, “and Frye participated 4. Defendant in this others, Shawell,” Mr. Frye admissions made anticipated preferential scheme because he July 1986 to Federal Home Loan Bank treatment Delta future transactions. (FHLB) Mims, Board examiner and 1986 Additionally, Frye defendant believed that of Mr. attorney” “letters and his Ferguson acquiring Savings Bankers stating “purchased Delta proper- that he and Loan Association of Galveston and ty as an accommodation to Mr. Crouch and Frye—would preferential receive he — Ferguson.” Mr. there, as treatment well.” aspect July government’s theory Another hearing magis- At the before by Geijes’ judge, testimony ease is reflected trate further ex- plained theory cross-examination as follows: hearing magistrate before the judge.2 done, “... as this dеal was Mr. Gerjes capacity stated that in his as Delta’s everyone’s identity Crouch was aware president negotiated he had and dealt with Ferguson and involvement. Mr. pur- Connally regard Barnes and Mark chasing savings loan Galveston. charged Connally part Mark loans as of an attempting swap He was proper- REO effort to rid Delta of REO. He did not recall ties from Banker’s to Delta. Delta had regard “any person one directing me” properties some REO get it needed to rid “anyone saying, you definitely do this or they going swap or sell you definitely that,” anyone spe- do or “that properties their through Banker’s cifically assigned responsibility. me” that person Ferguson. of Robert Typically, “report he would back to a loan Sir, Ferguson Mr. knows that properties meeting committee my and tell them of find- swapped. were to be He did not know ings” and “about what” he “negotiating was purchasing who was properties until Barnes/Connally.” with Crouch was on the just closing. before the He didn’t know Gerjes loan committee. also testified that he Connally Ben Barnes and Mark 28, 1985, was not at the June closings loan brought in. We have evidence that he because Crouch had fired him as Delta’s Connally did not know that Mark was to president earlier, about although a month be substituted in as a nominee until literal- “technically remained on the rolls of Delta ly closing. at the for some time after that.” suggest There is no evidence to that Ben Connally response Barnes or Mark ever heard the motion for bill of Kerry particulars, names Frye. Shawell or Michael described “De- They only fendant knew that Crouch’s there were loans that obtained benefit” from the they charged were involved in various and certain offenses as follows: circum- stances. legal “His law firm earned fees. His title

All of place these loans took on the same company earned title related fees. He day. All of them were either closed at earned fees and bonuses related to his Alvin; Defendant Crouch’s office in or with board position. of directors His actions regards Shawell, to Mr. and Robert kept regulators the federаl from immedi- Ferguson actually took those ately documents to taking over the institution which those sign every- individuals and had them any by would have caused stock owned thing and had it notarized.” family Crouch and his to be worthless.” hearing, At also es- suggests The record personally that Crouch sentially admitted it had no direct father, owned about 5% of Delta’s stock. His Frye’s knowledge or involvement any other who was not on during the board at time respect 8, 13, than in to counts each stock, or after owned about 34% of the Geijes by Fiye was hearing. called as a witness at the remarked ... Cholakian President board owned 34% was another out- loans were closed July prior to as Gilbert, preceded Crouch who member Ger- Messrs. of the Loan Committee. side chairman. to loan commit- jes agreed Erskine Investigation the details presented first and then ments committee, all point at which to the full under state placed apparently Delta sign. expected to members were committee re- May as control supervision and changed procedures have Loan Committee prepared report of examination in a flected According Chola- July to Ms. since Mims, copy which is by FHLB examiner during kian, approved loans are now all motion to as an exhibit Crouch’s attached underwriting meetings, committee delay.3 Delta was pre-indictment dismiss es- procedures have been guidelines and by the au- over completely taken apparently tablished. report at- The September thorities many motion concerns tached Crouch’s following provided Cholakian President financial operations and aspects of Delta’s regard transactions statement with questioning of condition, specific includes two es- involved with aforementioned loans, including seven loans certain [Frye and closings Shawell]: crow others, as, certain here, among well issue Fergu- on the addressing the situation ‘In Vaughan. loans to one Carl unrelated loans, I nominee loans and son direct things, that concludes, among other report your you and have trans- Shawell the JMG and staff aspects of informed “[a]ll I, cur- any other member nor neither were that JMG Shawell indicate actions sur- all management, has D, rent Ferguson C & acting as nominees facts put arrangement. This rounding this violations Inc.,” “willful there Ger- president, Carl together by the re- limitation” the loans-to-one-borrower former able to I not been jes, and have others, that review among Ferguson, find spect to documentation written pertaining records and Delta company clarification of title able not been I the transaction. apparent at- “an loans reflect the seven outr agreements that any written and borrowers association tempt find expected actions line transaction facts,” that “certain misrepresent material parties. to fall appear with- transaction aspects of the now, us, here clear Title ‘It become purview of in the Fer- nominees 1001,” examiner “[t]he and and Shawell JMG Section Code deduce that had to guson. the Loan Committee We concludes JMG responses loans- and subsequent actions of material violations aware requests report on This limitations.” and Shawell to-one-borrower for financial following interest statements statements likewise reflects and', payments_’” president Cholakian: Delta then sent FHLB examiner August In Unit- FBI and the referrals” underwriting “criminal loan defi- response to the “In to Delta respect Attorney examination, with ed States during the uncovered ciencies and the seven loans concerning at least these that for- Terry stated Cholakian President transactions, at least and Vaughan Gerjes and for- Carl Managing Carl Officer mer among Frye, and implicated Crouch former Real Estate Vice President mer Senior among others, name was not though Crouch’s regard for little had Lending Erskine W.A. sheet the cover names listed According target underwriting regulations. loan stated). FBI (whether Frye’s was is Gerjes Cholakian, and Ers- Messrs. to Ms. Kettler, charge Delta in agent special closing primarily concerned kine were thereaf- of the time during most investigation regulations worrying about and loans now “gener- ter, a referral was that such testified later. 1986. occurring аfter March report well to events it is a Although document states 3. 1986,” it refers As Of March "Examination summary ally of an event or a transaction and sixth and seventh and a financial the examiner feels that needs to be analyst in were added possible looked into as far as criminal in- In Gerjes’ after conviction and sen- volvement or needs some work for a criminal tencing ease, in the began bonus Kettler investigation.” Kettler he testified worked Delta, focusing more on gathering and exam- then, on the matter off and on since but not ining documents. forty There were boxes on a concentrated basis until In April records. Kettler employees interviewed 1987 Kettler received another FHLB crimi- (some closed), Delta before Delta he nal referral in ap- reference to “bonuses” ‍​‌‌​​‌‌‌​‌​​​‌‌‌​​‌‌​‌‌‌​‌​​​‌‌​‌​‌‌​​‌​​​‌‌​​​‌‍— (with Mims previ- interviewed whom he had parently some form of paid Ger- kickbacks — ously telephone) on the talked in (and Cholakian) jes involving also in (after Frye some time in 1990 September of 1984. He focused on this because of the five- year) possibly January In year Gerjes statute of limitations.4 was in- 1992, Ferguson pleaded guilty charges in for these dicted “bonus” in offenses the sum- connection with the instant pur- transactions ofmer and was tried and convicted of deal, and, suant to a according gov- year. them later that Crouch’s father testi- response ernment’s to Crouch’s motion to Gerjes trial, fied at this though dismiss, Ferguson “gave information which testify, Crouch did not apparently government’s focused investigation subpoenaed by been and was squarely Crouch, on defendants Frye and ready testify identify July In records. Shawell.” In Gerjes March 1992 pleaded 1987, Kettler received still another FHLB guilty charges in connection with the in- Delta, criminal referral concerning this time stant transactions and agreed likewise to co- in relation to certain other matters not operate government. with the Gerjes’ sen- August this case. involved tencing on this conviction apparently Galveston area of the Southern District of postponed, been Ferguson’s as has sentenc- Texas —the locus of the at issue— offenses ing, pending testimony their Crouch there were agents, three FBI and there Frye’s anticipated trial. analyst was no financial similarly skilled person. agents, Of the three one worked grand testified before jury exclusively drug cases. Kettler the November 1992. Crouch never testified be- agent responsible other for all other grand jury. fore the federal offenses. A fourth agent was added Crouch hearing testified at the before the late reassigned she was soon magistrate judge on the motion to dismiss. Houston and did not return until the summer He related that in spring During of 1988. when this time there were seven Delta, Mims examined institutions, requested, Mims Delta, including financial under Crouch, received from investigation by the Delta con- these two records agents. There cerning the many cases, question were also transactions in and said including the “no, case,” we do not” when “McConnell Crouch asked “if which came into he Kettler’s any problems had with in office about three me months after connection with the first Del- ta those referral and which transactions.” he Crouch also that as “about stated described largest the and his father white collar fraud in that we had in visited an the Houston Assistant Attorney division.” United States Kettler worked in “ex- connec- clusively” Geijes on that tion case for “six with the prosecution months or so.” bonus and disappearance he, The young Crouch, was told girl a and that a case “was not sub- the of ongoing ject espionage industrial of an investigation.” In September Dow or Chemical also each significant October involved Kettler came to Crouch’s title Priority amounts of time. assigned company get to was to consisting documents of or involving danger life, cases to ongoing including loans, human concerning those these and offenses, and in cases which Kettler, limitations copies. were was furnished response to running. to agent close A fifth was added inquiry, Crouch’s said Crouch was not sub- statute The of limitations was to extended ten as to prior which the statute had run to that years August effective except for offenses § time. 18 U.S.C. 3293. opinion. court’s in the district plemented returned investigation. Kettler ject of the Crouch, The at 938. district F.Supp. subpoena and awith September or June prej- presumptive was that there Again found court records.5 original the procured that the defendants Doggett and to under “no” udice occasion, responded Kettler this actual subject of “some also shown he was had whether inquiry Crouch’s presump- on the their supplement rebanee Crouch In March investigation. the Townley, the jury Relying on grand at 943. subject the Id. tion.” was told he was faith, (Frye finding of bad require indicted might did not court investigation time). “will correctly Other the record stated at that it notified which also so was discovery However, evi- the testimony other because justify.” Crouch’s aspects of the magistrate imposed by the hearing evidentiary limitations before dence it stated that in connection court judge, magistrate below related judge are showing prejudice. “may have to be ruled out” “cannot be our consideration magistrate n. day.” at 943 & testify before Id. on another Frye did addressed delay in did state The court judge. negligence.” smacks “certainly Rulings Below that Crouch concluded The court at 943. Id. grant- judge recommended magistrate Ferguson’s guilty “target” prior awas He concluded dismiss. motion to ing the however, find, It did plea. presump- was delay in indictment show, record tends nothing in the Unit- Doggett v. relying on tively prejudicial, might otherwise whatever government, 2686, 120 States, 505 U.S. ed pre- have could suspected, or believed (1992), recognizing although L.Ed.2d with- against Crouch case a winnable sented He case. Amendment a Sixth Doggett was Gerjes, Ferguson, testimony of either out “[wjhile must the Court opined further held further Shawell, Frye. The court cannot, that Crouch confess by the delay advanced for the the reason specificity the identify with part, most personnel available “insufficient government, a result they have suffered harm case,” prepare properly investigate they time,” nevertheless lapse of eight year slight only weight best, entitled “at pre- assistance the added had “with by the outweighed balance,” and was delay, eight-year attendant sumption presumptive,” actual and “prejudice, preju- of substantial existence proven the defendants, requiring dismissal thus magistrate Townley, the Relying on dice.” Id. at indictment. faith of bad judge ruled not, and stating “this Court required, faith.” of bad DISCUSSION not, the issue decide need judge balanced Instead, magistrate Requirement Bad Faith delay. the reasons de- favor of the weighed the balance Marion, It In United assigned priority “low fense, noting that (1971), the 30 L.Ed.2d investiga- overload investigation, pre-indict- addressed first Court Supreme insuf- responsibilities, prosecutive tive or run. had not limitations delay where of- reasons similar personnel, prior ficient granted, There, district bar, entitled dismiss, ease at in the fered trial, motion defendants’ However, the balance.” weight slight that, although the statute asserted which the current commend judge did magistrate 38-month expired, had not limitations its case since handling of the prosecutor’s rights to their delay violated pre-indictment May to him assignment speedy trial under and to due 307-09, Id. at Amendments. and Sixth Fifth magistrate adopted the court The district concluded district 457. The sup- except modified report, judge’s relating Con- Mark those not include and did presented Crouch indicated 5. Other nally. may consisted procured have then the records loans, to other related documents or included had been “aware of the stantial appellees’ rights to a years relevant than prior facts” more two fair trial and that anwas inten- 309-11, the indictment. Id. at 92 S.Ct. at tional gain device to tactical advantage government appealed directly The over 324, the accused.” Id. at 92 S.Ct. at Supreme under Court former 18 U.S.C. added). (emphasis § 3731. The held Court the Sixth The Court not, also noted “we need and could speedy trial Amendment clock did not start now, determine when and in what cir- running until the return of an indictment or cumstances actual prejudice resulting from charge other formal “or else the actual re- pre-accusation delays requires the dismissal imposed by straints arrest and holding to prosecution” and indicated such a de- charge.” 320, answer a criminal Id. at termination “will necessarily involve a deli- Though S.Ct. at 463. conceding “[pas- judgment cate based on the circumstances of sage time, arrest, whether befоre or after each case.” Id. at 92 S.Ct. at 466. The memories, may impair cause evidence to be proceeded Court then to reverse the order of lost, witnesses, deprive the defendant of dismissal, holding there was no Sixth Amend- interfere with his ability otherwise to defend that, violation and as to process: due himself,” the Court recognized “[p]ossible prejudice is inherent in delay, appellees “[n]or have adequately demon- short; may however also weaken the Gov- pre-indictment strated delay by ernment’s case.” at 321-22, 92 S.Ct. at the Government violated the Due Process (footnote omitted). See also id. at Clause. No actual to the con- (“Actual at 465 S.Ct. duct is alleged defense or proved, may defense result from the shortest and and there is no that the Govern- necessary delay”). most Two principal rea- ment intentionally delayed gain sons declining were noted for apply advantage tactical appellees over or to ha- Sixth pre-indictment Amendment delay. rass them.” Id. at S.Ct. First, “[ajllowing inquiry into police when the opinion’s The final sentence noted that could arrested or have when the prosecutor “[ejvents of the trial demonstrate actual could charged prob- raise difficult prejudice, present but at the appellees’ time lems of proof. said, As one court ‘the Court claims speculative pre- engaged would be in lengthy hearings in mature.” Id. every case to determine whether or not the prosecuting proceeded authorities had dili- Supreme Court next pre- addressed ” gently or otherwise.' Id. at 321 n. Lovasco, United States Second, S.Ct. at 464 n. 13. promi- more 431 U.S. 52 L.Ed.2d 752 “ nently: applicable ‘the statute of limitations (1977), again which involved a prior dismissal ... primary guarantee against bring- to trial. There the court, district following a ” ing overly stale charges’ criminal (quoting hearing, dismissed the indictment because of Ewell, 86 a delay, seventeen-month during the last 773, 777, (1966)), L.Ed.2d 627 some six months of which a defense witness represent “[s]ueh legislative statutes assess- died, between the time the ments of relative interests of the State and “all the information relating to the defen- thе defendant in administering and receiving alleged dant’s commission of the offenses” justice_” Id. at 92 S.Ct. at 464. and its presentation grand jury. The However, Marion went on to hold that: “Government systematic made no effort “the statute of limitations does not District Court fully explain long delay” appellees’

define the rights respect and a panel divided of the Eighth Circuit (as occurring prior events affirmed indictment. to all count), one sustaining Thus, the Government concedes that “the District finding Court’s that the Govern- Due Process Clause the Fifth ment’s ‘unjustified, Amend- actions were unnecessary, ” ment require dismissal of the indict- and unreasonable’ that the defense had ment if it were shown at trial pre- by been impaired witness’s the death. Id. at in this 786-88, case caused sub- 97 S.Ct. 2047. Supreme at The “once the Government promptly filed that initially reiterated It reversed. Court ‘ prove guilt to evidence sufficient assembled pri “the provide ... limitations of “statutes 792, at Id. doubt.” beyond reasonable a overly bringing against mary guarantee, ’” rule that such a It notes at 2050. S.Ct. Marion’s (quoting charges” criminal stale in those problems numerous “would cause Due Process Ewell), “the that of quoting involves transaction a criminal cases which protect play role limited has a Clause one than or more person one than more 789, 97 at delay.” Id. oppressive ing required act,” “if courts were and that illegal held that next Court The at 2048. S.Ct. prosecution the every case when decide Marion's, “establishes concluding sentence commenced, be neces- it would should makes of proof that prog- day-by-day trace the them sary for adju- for ripe concrete claim process due burdening investigation,” thus ress of each automat- claim the dication, makes that it not It n. 14. & and courts. Id. prosecutors both at S.Ct. at Lovasco ically valid.” find no can respect: “We in this concludes proof of that clear makes “Marion of Clause Due Process the command such necessary but generally view, investi- In our Fifth Amendment. claim, and process due of a element sufficient fundamentally unlike delay is gative consider inquiry must process the due that solely ‘to by the Governmеnt undertaken as delay as well for the reasons ac- advantage over gain tactical at Lovasco the accused.” prejudice to at at S.Ct. Id. cused’....” ob then Court The 2048-49. at 97 S.Ct. at Marion, at (quoting clause affords the due that served to “hold that 465).6 goes on Lovasco ‘fun of “those “only” violations for protection investigative following prosecute defendant lie justice which conceptions of damental process, him of deprive delay does institu political civil and our of base preju been might have if defense his even ” Holohan, 55 S.Ct. Mooney v. (quoting tions’ 796, 97 Id. of time.” lapse diced courts permit (1935)), “does that Thus, Court holds at 2051-52. S.Ct. simply be prosecutions abort criminal affirming the erred of Appeals the Court judg prosecutor’s disagree with a they cause 796-98, 97 Id. the indictment. dismissal an indictment.” to seek when as to ment might described what In at 2052. Further: at 2049. Lovasco on to goes Court the Lovasco postscript, pro defining ‘due free, in are not “Judges nor this Court that “neither observe officials law enforcement cess,’ impose on opportunity had a sustained lower fairness notions’ private ‘personal and our significance constitutional consider judges that bind limits ‘disregard the delay. therefore We reasons various ” Ro (quoting judicial function.’ in their courts, in first in the lower leave 165, 170,72 S.Ct. California, 342 U.S. chin prin settled applying stance, task (1952)). 205, 209, L.Ed. discussed we have process that ciple of due of individual circumstances particular rejects contention next Lovasco Id.7 charges be cases.” requires that Constitution (emphasis 2051 n. S.Ct. at n. 795 added). to this footnote appended a Court Lovasco 6. The stating: sentence approval that we noted with “In Mation these first of appended to the a footnote a ‘tactical’ conceded Government review sentences, a law noninvestiga- observes Court Clause. Process Due would violate catalogued some "has article here, concession renews Government quote proceeds to delay" and reasons tive expands it Brief for article, including its from the passages several stating: violation ‘Adue somewhat cov- informer’s an to maintenance references showing upon a out might be made “ including sinister er, ... motives ‘other disre- in reckless prosecutorial incurred “ ” ‘vari- ones,’ the fact reference and its circumstances, prosecu- known gard of assign- as the decisions—such prosecutorial ous apprecia- tion, existed suggesting that there among investi- priorities manpower and abilily to impair the delay would ble risk may also affect known 32-33, gations of offences— n. id. at defense.’ effective mount an ” (quoting delays.' Id. fn. length however, notes, is no there theAs Government Rights and Amsterdam, Speedy Trial: Criminal Lovasco here.” of recklessness 1508 decisions following Our prejudice Marion and (2) resulted delay from the generally Lovasco

before construed delay Marion anwas intentional measure in order to Butts, as stated United States v. 524 gain F.2d a technical advantage.” In United 975, (5th Cir.1973), 977 viz: Durnin, (5th States v. 632 F.2d 1297 Cir. 1980), Marion, rejected we “In United States v. ... due the Su- claim of preindietment preme delay Court held that applicable on the sole basis that the statute of defendant had being limitations not shown primary motive on the guarantee part prosecutor bringing overly delay to use the stale (1) advantage, criminal tactical charges, one must show we did so without evaluating even substantial the presence resulted extent of delay prejudice: seeking (2) an indictment and delay anwas intentional measure “Appellant alleges that delay denied gain advantage tactical the in- before him because he lost the testi- dictment can be dismissed.” (Emphasis mony of important witness in the inter- added). im government between when the could Other decisions of ours to the same effect have brought an indictment when it Beckham, include United States v. 505 F.2d finally However, chose to do so. to estab- 1316, (5th Cir.), denied, 1319 cert. 421 U.S. lish a violation of the Due Process Clause 950, 1683, 95 S.Ct. (1975); 44 L.Ed.2d 104 context, in this appellant show, must Duke, 386, United States v. 388, 527 F.2d 390 substantial flowing from an (5th Cir.), denied, cert. 952, 426 U.S. delay, inordinate but also a motive on the 3177, 49 (1976); L.Ed.2d 1190 United States part prosecutor delay use the Scallion, v. 903, (5th 533 F.2d 912 Cir.1976), gain a advantage tactical ... [citing Lo- reh’g denied, grds on other 548 F.2d 1168 vasco, Marion, Appellant ]. and Willis (5th Cir.1977), denied, 943, cert. 436 U.S. 56 does not contend (1978); L.Ed.2d 784 and United States v. sought delay his indictment for tactical

Manetta, 1352, (5th Cir.1977). 551 F.2d 1354 advantage, and the specifical- district court See Croucher, also United v. States 532 F.2d ly found that resulted from the (5th 1042, 1044 Cir.1976).8 government’s good-faith attempt to ascer- Lovasco, Since overwhelming majority tain appellant’s guilt beyond a reasonable of our decisions have stated the rule essen- doubt. Trial Transcript, 3, vol. at 78. tially as we Butts, had stated it in supra. Since finding this abundantly is supported Thus, in Willis, record, F.2d ‍​‌‌​​‌‌‌​‌​​​‌‌‌​​‌‌​‌‌‌​‌​​​‌‌​‌​‌‌​​‌​​​‌‌​​​‌‍the district ruling court’s (5th 203, Cir.1978), we wrote that the motion to dismiss must be affirmed.” prevail on a claim of (citations Id. at 1299-1300 and footnote “the accused (1) must show that: omitted; added). substantial emphasis Remedies, 525, (1975)). 27 Stan.L.R. 527-28 act. When is not the result of an intention- gives footnote then tice a “see also” citation to Jus- al attempt strengthen case, government's it concurring opinion Brennan’s Dickey very likely proof make more difficult Florida, 398 U.S. 43-47 & n. guilt.” accused’s Id. n. 9. (1970). 1572-73 & n. L.Ed.2d 26 We pages observe that the indicated of Justice Bren- 8. One of our decisions time frame states (in nan’s Dickey concurrence in which Justice in its essentially Butts, text rule stated Marshall, Lovasco, joined) author of discuss con- Duke, cases, and our other above-cited but in a pertaining siderations to whether the Sixth suggests footnote ques it could open be an speedy guarantee Amendment's ble applica- requirements tion whether the two as stated in delays occurring "to arrest indict- before might alternative, Butts considered ment." rather 90 S.Ct. at 1572. Justice cumulative, requirements. than opinion Brennan’s United States v. remarks "[d]eliberate Cir.1976), Avalos, governmental F.2d delay designed & n. 9 to harm the ac- cused, however, rt. constitutes abuse of the ce S.Ct. criminal process.” (1977). However, Id. at L.Ed.2d 363 certainly S.Ct. at 1573. footnote, states, alia, Justice now Brennan also clear that inter caused alone does course, "Delay, Lovasco, 788-92, not 98, because result suffice. U.S. 794- 2048-49, lacks sufficient Hence, resources to move 2051-52. quickly more negligently or because it requirements fails to cannot be alternative.

1509 stake”). interеsts governmental “the or v. States in United wrote recently, we More panel The pure is dicta. footnote Cir.1994), (5th that: Brand 1329, 1339 31 F.3d Byrd, primary reliance placed court district and the violated pre-indictment that prove “To by two decision quorum Townley must a defendant rights, due —a his Townley’s con- affirming intentionally in judges where, prosecutor the that demonstrate — the that district viction, rejected ad his claim tactical gain we indictment delayed the overruling his motion sub in incurred erred the defendant court had vantage and delay.” delay. The Town- the preindictment as a result dismiss prejudice stantial pre- all, lengthy Lovasco “the since original). ley panel concluded (Emphasis this judges of Town- prejudiced different twenty-nine delay somewhat least thirty- the faith twenty-five of to “bad 586, not including due but was ley,” id. at Court — as ac Rely- either at 581. served Id. judges who him. prejudice” three motive to split since 7, this Court de- judge opinion the senior tive or footnote ing on Brand’s authored, joined 1, basis, rather 1981—have but October affirm clined to published reservation, unanimous “turns issue without the that resolution asserted cases eighteen different in some there- opinions prejudice degree of upon whether we what just substance stating in holding sufficiently by the accused by sustained Dumin, Willis.9 and Byrd, said advanced faith reasons good balanced con We to the at 582. language Townley government.” recognize by the We of our way few in scattered ultimately found trary may be concluded v. States unfolded, example, particularly United actually For opinions. had Cir.1977), (5th cert. prove Brand, sought 1312 F.2d 556 had way 1237, 55 1063, Townley denied, prejudice U.S. case, 434 such the defen (1978), rejected we substantial, 763 when bal- sufficiently L.Ed.2d (“the because claim preindictment for the dant’s against the reasons anced Id. any prejudice. low-priority not demonstrated ... investigations had other press of appended then panel The Brand investigations 1316-1317. present accorded disagreement expressing its a footnote prosecuting governmental changes ... actu “both contention government’s to a 581), amount toas id. personnel,” delay” tactical intentional prejudiсe al process. denial of instead shown, asserting that to be had plain that notwithstanding, it Townley “de delay claim validity aof opinions this Court’s majority of the vast balancing between the due pends on as re contrary approach have followed actual extent Dumin, Butts, Byrd, and flected at stake.” interests governmental Although as 9, supra. note cited in opinions engage in there We did n. 7. 1317 strictly bound arewe an en banc already however, for we balancing, such to fol decisions, now choose we panel prior (nor even did we found opinions prior our majority of the vast delay low reasons identify or assess Johnson, F.2d 802 (1987); v. States Willis, United Dumin, 796 Byrd, In addition Cir.1986); v. (5th 833, 835, United States 836 to in opinions referred published post-Lovasco Cir.1986); 1245, (5th 1035, Unit Neal, Scott, 1249 1041 27 F.3d 795 F.2d v. States clude: United Cir.), (5th - -, 287, denied, Ballard, 115 293 Cir.1994), U.S. 779 F.2d (5th v. ed States cert. 1518, (1995); 1109, 1165, 89 denied, United 1120 S.Ct. L.Ed.2d 106 130 U.S. 475 S.Ct. cert. Cir.), (5th 62, Beszborn, Amuny, 65-66 767 (1986); 21 F.3d v. v. States States United 916 L.Ed.2d 330, -, - 130 denied, Cir.1985); S.Ct. 115 (5th U.S. United 1113, cert. 1119-1120 F.2d Hooten, 933 (1994); v. States United 1053, (5th 288 L.Ed.2d Cir. 1059 Wehling, 676 F.2d v. States Guste, Cir.1991); 293, (5th v. Dickerson 38, 296 Hendricks, F.2d 661 F.2d 1982); v. States United denied, Cir.), (5th 1142, 502 cert. 1144 F.2d Nixon, 932 1981); 634 v. (5th States United Cir. 39-40 (1991); 214, 875, 172 L.Ed.2d S.Ct. 116 112 U.S. Cir.1981); States (5th United 310 F.2d (5th Delario, F.2d v. United States Cir.1978). (5th Ramos, 586 F.2d v. Varea, 896 F.2d 1990); States United Cir. post- course, numerous there Of denied, Cir.), U.S. (5th cert. effect, Marion, the same cases pre-Lovasco (1990); L.Ed.2d 170 S.Ct. Scallion; Duke; Beckham; Butts; Cir.1986), cert. Carlock, 806 F.2d Manetta. 94 L.Ed.2d reject respect Townley ap- and to actual “ accused was also proach. ‘unjustified, unnecessary, and unreason ” able,’ 787, 2047, findings id. at 97 S.Ct. at recognize that neither Marion We Supreme expressly Court never disa crystal issue, clear nor Lovasco on greed clearly with or determined to be erron opinion can language each contains some that Indeed, eous.10 both Lovasco and Marion However, give comfort to either view. we undesirability attempting indicate the of opin of reading that the better these believe See, e.g., make such determinations. Marion Court, in Supreme ions is that the instances 13, 13; n. at 321-323 & 92 S.Ct. 464 at & n. run, where the statute of limitations has not 14, 97 Lovasco at n. 792-93 & S.Ct. at 2050 & recognize preindict a of has refused claim Finally, n. 14. neither nor Marion Lovasco delay absent some bad faith or improp ment any “balancing” “weighing” mentions of purpose prosecution. part er of the prejudice against extent of the rela emphasize Both Marion Lovasco delay. tive merit of the for In reasons primary” protection against preindict “the deed, thing the closest to a reference to delay limitations, ment is the statute of balancing is Marion’s statement that limita process that the clause but “a due limited “represent legislative tions statutes assess 789, play.” role to Lovasco at 97 at S.Ct. ments relative interests of the State only process specifi due violation 322, the defendant.” Id. at 92 S.Ct. at 464 cally recognized delay only is where the added). (emphasis prejudice” “caused substantial “was gain an intentional device tactical advan Crucially, itself, Supreme Court albeit 324, tage.” at 92 Marion S.Ct. at 465. Mar dicta, appears in interpreted to have Marion ion the dismissal reversed essentially and Lovasco the same manner delay stating showing “there is no that the Durnin, Butts, Byrd, as we did in our intentionally delayed Government gain 9, Thus, other cases cited in note supra. advantage some tactical appellees over or to Gouveia, 180, 192, v. United States 467 U.S. 325, harass them.” Id. at 92 S.Ct. at 466. 2292, 2299, (1984), 104 S.Ct. 81 L.Ed.2d 146 rejects Lovasco the notion that the Court stated: preindictment delay sufficient, is a rath applicable “But pro- statutes of limitations merely than necessary, er condition for prosecution’s tect bringing relief, 788-92, 794-98, id. at 97 at S.Ct. 2048- against any criminal charges stale defen- rejects It 2051-52. likewise the conten dant, Lovasco, v. supra, United States 431 process proscribes tion that the due clause U.S., 788-789, S.Ct., 2047-2048; at 97 at delay beyond prosecution the time the Marion, U.S., supra, United States v. 404 prove assembled sufficient evidence guilt S.Ct., 464, and, beyond at 92 at beyond 792-96, a reasonable doubt. Id. at 97 protection, the requires Fifth at Amendment S.Ct. 2050-51. pro Lovasco refuses to indictment, investigative dismissal if it is delay scribe even because such “de brought limitations, within lay fundamentally the statute of unlike undertaken if solely gain prove defendant can that the Government Govern- ‘to tactical advantage bringing ment’s over the the indictment accused.’” at Lovasco 97 gain deliberate (quoting Marion device to аn advan- 465). Moreover, Lovasco, tage 92 S.Ct. over him and that it him rather caused remanding presenting than light reconsideration in his defense. Unit- Lovasco, flatly of its principles, supra, U.S., held v. dismissal ed States 789-790, 2048-2049; despite indictment was error the find 97 S.Ct. at ings Marion, U.S., supra, both the district court and the v. Court Appeals added). (Emphasis caused 92 S.Ct. at 465.” Indeed, disagreement (1949) (Supreme would be un- most Court will not "undertake usual, given Supreme Court’s well-estab- findings to review concurrent of fact two See, e.g., lished court” “two doctrine. Graver very courts below in the absence of a obvious Co., Mfg. Tank & Co. v. Linde Air Products error”). exceptional showing 271, 275-77, 535, 538, U.S. 93 L.Ed. See, e.g., United purpose. improper 488 other Youngblood, in Arizona recently, More (D.C.Cir.1991), Mills, F.2d 281 States L.Ed.2d 51, 109 S.Ct. U.S. holding rt. Court, support (1988), the ce (1992) (“... pre-indict can show 121 L.Ed.2d defendant a criminal “unless if the failure ... offends police, part faith bad carry does burden can useful potentially defendant preserve law,” bringing the delayed (1) of due denial constitute advan tactical gain in order that: stated him (2) delay caused tage; and areas in related “Our decisions United prejudice”);11 substantial actual constitutional for importance the stressed (1st Cir.), Crooks, 7, 11 766 F.2d v. part the on States faith or bad good of purposes 421, 88 996, denied, 106 S.Ct. 474 U.S. is based the claim cert. when of the Government (“An brought (1985) indictment to the Gov- 362 L.Ed.2d attributable loss of evidence Marion, of limitations applicable 404 statute v. an States within In United ernment. only constitutionally speaking, late is, 468 455, L.Ed.2d 307, 30 period 92 S.Ct. U.S. de the prejudices delay actual significantly (1971), that the ‘[n]o said if we ‘intentionally alleged or government of the defense and the conduct fendant to the the unfair showing gain an ‘to is no indictment delayed’ and there the proved, gain delayed to mo intentionally bad faith other advantage or for Government tactical appellees v. added);12 over advantage States United ”; emphasis tactical some tives’ S.Ct., 325, (2d Cir.1987), 92 Id. at cert. 667, them.’ 671 Hoo, to harass F.2d 825 Lovasco, 431 742, v. 98 466; 1035, States also United 108 S.Ct. see 2048, 2044, 52 783, 790, 97 S.Ct. (1988);13 v. Isma States U.S. United 777 L.Ed.2d 57, (1977).” Cir.1987) (“to Id. at (3d 752 sus L.Ed.2d 153, ili, 167 F.2d 828 of grounds at 337. charges on the of a dismissal tain Due delay pursuant pre-indictment circuits our majority of sister significant A the bear Clаuse, must a defendant Process rule, namely same now follow to appear (1) facts: essential two proving burden dismissal not run limitations where in delayed intentionally government that the showing delay requires preindictment for over advantage tactical gain some order to substantial, prejudice, actual only of delay (2) intentional this him, delayed intentionally prosecutor also that foot- prejudice”; defendant caused the some advantage or to advance gain tactical 307, Marion, 92 U.S. v. 404 cites, States statement, United In Mills support this In (1971), Supreme 455, 468 L.Ed.2d 30 S.Ct. cases, opinion in and our Gouveia among other requires clause 766, the due Delano, held that 769 Court F.2d 912 v. United States because of an dismissal 1990). at 464. Mills Cir. delay only delay when Judge, Circuit then was authored defense 12. Crooks prejudice’ causes 'substantial opin Justice, Circuit Breyer. First Other gain now device anis 'intentional passage from the above as effect same ions oyer the accused.’ advantage tactical Judge Breyer Circuit then in which event, Crooks and appel 324, In at 465... S.Ct. 92 Acevedo, 842 v. States United include concurred that the show has failed lant Cir.1988); v. States 502, (1st United 504 F.2d in or prosecution delayed his improperly Cir.), 39, (1st cert. de Picciandra, 42 788 F.2d at 671. advantage.” Id. gain tactical der nied, 93 L.Ed.2d 107 U.S. 479 Hoo, of certiorari First, the denial dissent from In his Marler, F.2d 756 (1986); v. States and United 104 Tenth, Third, White noted Justice Cir.1985). (1st These authorities 213 Second, Circuits, well as and Eleventh Slates recently United been reaffirmed more misconduct showing prosecutorial "required a 1992). (1st Cir. 711 McCoy, F.2d 977 advantage over a tactical designed obtain impermissi- advance or to defendant deni- Hoo, affirmed Circuit the Second a due establish purpose in order to ble preindict- dismiss motion to al of defendant’s Circuits violation,” Ninth Fourth stating; delay, test, that there balancing applied a showing of no made appellant has "Because and Seventh the Fifth however, conflicts motive, intra-circuit prosecutorial improper an States, U.S. v. United Hoo Circuits. appellant’s constitu- deprivation we find (1988). L.Ed.2d rights. tional omitted); Brown, Townley purports weigh United States v. note test (6th Cir.1992) (“This degree the еxtent or balance the actual F.2d prejudice against consistently read Lovasco to hold ‘dis extent which the government’s “good faith delay is reasons” for the pre-indictment warranted missal only when the defendant shows ^[1] substan deviate from what the court believes to However, appropriate.16 right what this test prejudice to his to a fair trial and tial ^[2] intentional device seeks to do is to compare incomparable. placed The items to be gain either side a tactical advan themselves) (imprecise ”); Sowa, wholly balance tage’ F.3d United (7th Cir.1994);14 possi- different each other and have no Eng States v. (10th Cir.1992) strom, ble common denominator that would allow F.2d (“there “weighs” determination which the most. must be both of actual Not is there no scale or conversion and evidence that table eighty percent to tell us purposeful gain order whether of minimal- a tactical advan prosecutorial ly adequate investigative ... tage a defendant meet two- must test”); staffing outweighed by pronged v. is a low-medium Hayes, United States 40 (11th Cir.1994) (“In 362, 365 circuit, prejudice, amount of actual there are no rec- F.3d this ognized general principles standards or to defendant must show that he suffered making us in aid and prejudice delay and that determination substantial was virtually body precedent product by no of of deliberate or historic action the Gov practice guidance. look gain advantage”).15 Inevitably, a to to for ernment to tactical then, “length a of the Chancellor’s foot” sort conclude that several We other consider- judges of will resolution ensue and will neces- strongly against ations militate utilizing also sarily process define due weigh- each such balancing Townley-type a to test determine “ by ing ‘personal their own private and no- prejudicial preindictment delay whether vio- fairness,” contrary tions’ of to the admonition process requiring ‍​‌‌​​‌‌‌​‌​​​‌‌‌​​‌‌​‌‌‌​‌​​​‌‌​‌​‌‌​​‌​​​‌‌​​​‌‍lates due and favor of of Lovasco. delay intentionally that the have been caused by prosecution gain to a tactical Apart difficulty, advan- from the above tage over the or grounding defendant for some other a process due violation on the purpose. bad faith good of inadequate, basis faith but ineffec- Sowa, advantage, the Seventh Circuit stated: process tactical there can due violation.” The court that "there observed pre-indictment delay "To establish a vio preindictment delay nois intimation that the process, prove lated due Sowa must that the designed gain intentional and to a tactical advan prejudice caused actual and substantial tage over or to harass Stierwalt”. The rule is rights, to his fair and there must be similarly Scoggins, stated in United v. States showing government delayed that the indict 164, (8th Cir.1993). However, F.2d 166-167 gain advantage ment to a tactical or some Miller, (8th Cir.), v. States 20 F.3d 926 impermissible reason. United - -, 226, cert. U.S. 115 S.Ct. Marion, 307, 325, 455, 465, 404 U.S. (1994), Court, citing L.Ed.2d 152 without (1971)..... 30 L.Ed.2d 468 The district court Scoggins, preju Stierwalt or stated that if actual ... proved found that Sowa had actual inquire is dice established "the then prejudice resulting substantial from the de into the reasons for the and balance those lay. ... reasons prejudice.” the demonstrated ultimately Id. at 931. The Court affirmed claim, however, Sowa’s fails to meet the re- conviction, and concerning stated in a footnote quirements prong. respect of the second With periods legitimate investiga "due not to government’s delay, process to the implicated due is tory "appear needs" that those to be due to government purposely if the de- delays, negli administrative inertia ator worst layed advantage, the indictment take tacti- gence. agree magistrate's finding We cally, prejudice or otherwise acted in absolutely 'there no evidence that the bad faith." at 450. ” strategic was for reasons.’ Id. & n. 5. Stierwalt, 15. In United States v. F.3d (8th Cir.1994), rejected Inferentially, Townley grant Court the defendant's would also relief preindictment "[ujnless delay, stating claim of whenever actual resulted from de- government lay there is a intentionally gain intention- caused to tactical advan- ally delayed tage. gain indictment to or harass outweigh the “insufficient personnel governmental tive, or insufficient Frye.” Crouch to Crouch de- leading preindiсtment management “insufficient” reasons Finding these 483.18 constitutional basic to two counter lay runs greater determining that substance is “historically, place, first In the principles. have been allo- generally should manpower ap- been due guarantee this in that prosecution investigation and cated decisions deliberate plied priority higher jurisdiction, life, liberty, or person deprive officials particular assigned been should Williams, 474 U.S. Daniels property,” are ones those decisions Yet investigation.19 L.Ed.2d legislative essentially committed Process Clause Due “the hence (1986), and judicial branches, case for executive care of due by lack implicated is ... where weak particularly guessing second injury to causing unintended an official conduct it is directed v. Can- Davidson property.” life, liberty or constitutional any specific supported non, tradi- any long-established guaranty these Contrary to (1986).17 L.Ed.2d only by oversight, but judicial tion Townley test would however, the principles, clause. general contours gov- where process violation a due find did cited faith good example, the acted For ernment ulti- party report in a deliberately following observations seek us the Opera- on Government mately Committee accused. the House FIR- before months ten issued tions con- powers separation serious Finally, limita- relevant presently the extended REA the Here, example, for implicated. cerns are years,20 viz: period to ten tions the reasons the that concluded panel investiga- fraud Pending bank a. “19. prior- low and the manpower of delay —“lack erimi- Federal overwhelming the tions assigned”— investigation this ity which potentially preserve to police, failure part of the analogy rule by argue and 17.Crouch of a denial constitute 1194, does not evidence 83, useful S.Ct. 83 Maryland, 373 U.S. Brady v. of analogy than apt provides a more process,” sup due prosecutor’s (1963), that 215 L.Ed.2d 10 recog- itself Supreme Court Brady, the as of due that violates exculpatory of pression Lovas- citing and by Youngblood Marion in nized bad good faith or of the "irrespective process holding. support of its said 87, co Id. prosecution." the faith of post-indictment to relates Brady 1196. —which accepted more be a panel Townley prosecution might by Similarly, the the conduct — by low support a contention the delay to occasioned analogy urged "was if cogent of the much rights are the investigation and speedy trial assigned to Amendment priority Sixth prosecutive post-indictment investigative and prosecutorial of violated overload person- faith good or bad available faith the irrespective allocated responsibilities nel,” of indictment, variety 582, of "because and Townley With arrest prosecution. arise, personnel." at trial more prosecuting as do rights changes of constitutional of clear, the But, make that had Lovasco panel and indicated Marion as 581. The itself. prearrest prej- actually only undue protection "somewhat” primary been the accused limita of statute reasons delay is the developed after trial —these and udiced—as process but Clause due tions, and a Process Due the insufficient and been have would is no respect. There play in occurred. have role limited violation duty to constitutional law general common reasonably practicable, as charges as soon bring reasonably be manpower that could all the If preindict recognized that long been it has and highest rea- the furnished expected has been See, defense. delay generally favors ment assigned to been priority has sonably appropriate Davis, 119 487 F.2d e.g., United viola- process due but a question, matter Cir.1973), U.S. rt. ce de- despite the found been nevertheless tion has (" (1974) prac 'all L.Ed.2d S.Ct. man- only by insufficient being caused lay’s attri aware well lawyers are ticed assigned priority the relative power damaging to the delay more tion nec- must violation matter, process due then the defense. of than case prosecution’s alone, contrary Lo- essarily rest prosecution long as the bewill so This vasco. Hence, of ’’). rule Arizona proof.’ of burden Youngblood, 961(l)(1), Aug. DC, 101-73, § Title Pub.L. See (1988), "unless a L.Ed.2d 501; § 3293. 18 U.S.C. Stat. on the faith bad can show defendant criminal justice system. merely nal There are acute process find a due violation sufficiently compensated shortages of basis of the extent of the alone— investigators prosecutors and experienced inevitably grading involves us or evaluat- in most areas the nation to handle ing merit of resource allocation and man- cases, complex these more agement properly decisions that are Timely investigations prosecu- province b. legislative and/or the executive and/or 3,340 pending many FBI tions Delay branches. due to such causes is fun- $100,000 investigations involving losses of damentally unlike gain intentional highly improbable, impos- or more is if not tactical advantage improper pur- or for other sible, without a substantial increase pose. Department’s budget.”21 static Justice reject Accordingly, Townley we cites, alia, response, Crouch’s brief inter balancing test and for preindict hold that Committee,22 report of the same House process ment to violate the due clause having which he characterizes as “found that it must cause accused substan personnel shortages investigation tial, prejudice, but the must also prosecution of such fraud and embezzle- intentionally have been undertaken (F E) & cases were the result purpose gaining for the failure of the Executive Branch and the De- tactical advantage over the accused partment request of Justice sufficient find- contemplated prosecution or for some other assign ing appropriate priorities.” impermissible, purpose.23 bad faith We need we to make of all What are this? Are we attempt catalogue possible not now all say that there would be no due impermissible, “other” purposes bad faith vigorously violation if the President had delay, although intentional Marion indicates timely requested additional funds to investi- purpose that a “to harass” the defendant gate cases, prosecute Congress these 325-27, would be included. Id. 92 S.Ct. at Or, refused? even so we will find a suggested by 466.24 As Marion and Lovas- Congress violation because co, we leave that to case-by-case further de course, shouldn’t refused? Of funds velopment. must say come from somewhere. Are towe funding that such additional is better than prejudice We turn now to component increasing taxes or the deficit decreasing or of the due claim. funding programs? for some other Are we Prejudice Requirement judge whether financial institution fraud assigned higher be a priority should than Principles General drug or other offenses? It seems to us that noted, all quintessentially agree those As panel’s decisions are we with legislative holding, 483-84, business of or either 51 the exec- F.2d that the district both, branch, utive or judicia- rather than in concluding erred length Yet, ry. Townley approach—so a long preindictment delay it established substantial actually “weigh” tries “balance” or presumptive prejudice.25 instead precedents, All our Whitlock, Pulles, 21. 2 Hogg plea bargain FIRREA: A reason aof or the like—even to Legislative History Section-by-SectionAnaly- beyond reasonably level well thought neces- (McGraw-Hill 1993) sis Title EX (quoting sary House preclude granting post-verdict of a 100-1088, 18, 1988). Report October judgment acquittal motion for under Fed. 29(c) (and purpose R.Crim.P. such a would not 101-982, H.R.Rep. Cong., No. 101st 2nd Sess. impermissible). be (1990). alleged any spe- Neither Crouch nor delay purpose gaining Intentional for the impermissible, pur- cific such “other” bad faith advantage delay tactical would include for the pose. purpose rendering unavailable evidence favor- able to the defense or which would tend to un- (cid:127) But, government's magistrate dercut the judge, report case. 25. The would not whose the dis- affirmatively delay include strengthen gov- approved adopted trict court as modified ernment’s potential supplemented by case—such as opinion, until likewise found witness for the presumptive prejudice. becomes available magistrate And

1515 (“ (5th Cir.1982) preju reading at 1059 ‘substantial fair of Marion as a as well dice,”’ Marion); actual, quoting Lovasco, not United States pre v. plainly indicate (5th Cir.1978) (“sub Willis, 203, 207 F.2d shown where 583 sumptive, prejudice must be (“substan delay. prеjudice”); stantial Butts at 977 preindictment complaint is made (“substan Wehling, prejudice”); tial See, 676 F.2d Beckham 1319 v. e.g., United States (5th Speculative prejudice Cir.1982); prejudice”). v. tial actual United States 1059 Cir.1975) Parks, (5th suffice, United v. 68 does States McGough, 510 F.2d (5th Cir.1995), asserted, (“when “[v]ague F.3d actu witnesses, memories, possibili of lost merely the real assertions faded prejudice and not al misplaced or documents are insufficient.” extended ty inherent 136; Roy necessary which must be Beszborn at 67. See also West at element (“[t]he 1090; Wehling passage als at at 1059. A mere loss of shown”); at 977 mere Butts type potential witnesses is insufficient absent a [does] constitute] of time testimony necessary their “would have to set aside actually appropriate aided the defense.” Beszborn at 66. returned within the limitations”). 1090; 136; Royals court’s See Wehl The district also West at statute of 1059; ing Supreme Doggett McGough, de United States v. Court’s reliance Cir.1975) (“death (5th misplaced Doggett was F.2d of some cision was because witnesses,” post-indictment potential six defense some of Amendment Sixth Beszborn, 21 claimed v. F.3d whom the defendant “would have ease. United States See — (5th U.S.-, Cir.), knowledge to firsthand of several cert. testified as (1994).26 involved).27 Moreover, of the transactions” 130 L.Ed.2d 288 See also, 1339; based on lost witnesses e.g., Byrd at United States establish Cir.1995). (9th documents, Bischel, F.3d the defendant must also show ... that “the information could not otherwise prejudice to be shown be Beszborn obtained from other sources.” actual, presumed or only must rather than be (“[D]efendant Royals at at 67. See also but must also “substantial.” potential, to show that sueh could failed See, e.g., Marion 92 S.Ct. at obtained”). not have otherwise been (“substantial prejudice”); United States (“actual (5th Cir.1995) West, 133, 136 actual, prejudice— That substantial 58 F.3d potential prejudice— prejudice”); merely possible v. not and substantial Cir.1985) be shown is also consistent with the Royals, 777 F.2d must (“actual right Wehling question. prejudice”); nature and substantial appears gett involving a judge judge was a case Sixth Amendment district each also claim, post-indict- speedy presumed prejudice trial violation due with the have combined the delay, pre-indiсtment delay. than weighed ment rather prejudice actual found and then proper prejudice of a claim of The measure government’s total reasons for delay process pre-indictment is the due due to delay. Amendment, of which re- standard the Fifth prejudice.... quires showing a of actual explained in 26. We Beszborn: Supreme in its directive The Court was clear is that it is that, “The law well settled guard against "There is no need to ... presumed prejudice, possible prejudice, delays prejudice possibility ... will mere process required support a is due which statutes limitation al- the defense ... since ready of applicable of is statute limitations claim. The perform States v. that function.” United by guard 307, 455, Marion, law to the mechanism established 404 U.S. 92 S.Ct. 30 L.Ed.2d actual, against possible, distinguished 468(1971).” from at prejudice resulting passage Moreover, of time preindictment generally from the tends to See, defense, charge, protecting a prosecution. e.g., between crime not the favor 112, Davis, charges. overly criminal defendant from stale 487 F.2d 119 United States v. Cir.1973), 981, Ewell, 86 S.Ct. S.Ct. United States v. 383 U.S. rt. 415 U.S. 94 ce (1974). (1966); United States v. 15 L.Ed.2d 627 39 L.Ed.2d 878 Marion, S.Ct. 30 L.Ed.2d 404 U.S. course, And, (1971). of witnesses or documents of loss improper occurring are presumed prejudice becomes concept no before of has The See, e.g., at 868. Wal- place analysis, Parks process and the district not considered. in a due Cf. Scott, (5th Cir.1994). misplaced. Dog- 688-89 Doggett 21 F.3d on is ters court's reliance life, “deprived stantially unfairly ability right prejudiced That is one not be his liberty, process Marion, property, without due to avoid that result. Thus in Const., present law.” Amend. 5. pretrial U.S. Court reversed the dismissal for context, deprivation normally only occur delay, but observed conviction, by simply “[ejvents trial itself. trial demonstrate actual Wakinekona, Olim U.S. prejudice, present appellees’ at time Cf. 103 (1983) 1741, 1748, 75 L.Ed.2d 813 S.Ct. speculative pre- claims are (“Process is not an in itself. Its end consti mature.” Id. at S.Ct. 466.28 See protect purpose tutional is to a substantive 858-59, MacDonald legiti interest to which has a the individual (“The pretrial of a denial motion to dismiss entitlement”). mate claim of In United speedy grounds an trial does MacDonald, 850, 861, States v. a not indicate that like motion made after 1547, 1553, (1978), L.Ed.2d gauged— trial—-when can better be Supreme pro Court held that “[u]nlike added). denied”; emphasis would also be Jeopardy tection afforded the Double then, Necessarily, stronger far a Clause, Speedy Clause does not ... Trial showing required requisite is to establish the ‘right encompass a not to be tried’ which actual, prejudice pretrial substantial than upheld prior must be to trial if it be is to required would be after trial and conviction. enjoyed applies, at all.” The same conclusion Indeed, it imagine pre is difficult to fortiori, preindict how to due claims of delay. trial authority are no would not al ment We aware of contrary. Supreme significant most all Court further cases be extent speculative potential stated MacDonald: rather than actual trial, report substantial. course, We aware “Before an estimate appellate ed federal degree impaired decision since Lovasco to which adequate pretrial specula- defense tends to sustained dismissal for preindictment delay tive.... The essence of a defendant’s where the statute of lim say Sixth Amendment claim in the usual case itations had not run.29 This not passage is that the of time has frustrated a motion to dismiss such a basis should ability his to establish his innocence of the initially prior be filed and considered charged. Normally, crime 12(b)(1) (2). after trial. Fed.R.Crim.P. & Cf. may fairly trial that claim be as- However, very at least in all but the clearest 858-59, sessed.” Id. at cases, compelling court, and most the district added). (emphasis grant than prior rather such motion trial, case, This, carry should it with too, fully applies preindiet- and make to claims of actual, delay. the determination of whether The denial of relief substan before accused, convicted, way precludes in no tial improper if resulted from the successfully demonstrating un- light actually transpired what improper preindictment delay due and A reported sub- trial.30 number of decisions in Court, (8th Cir.1976). Barket, 28. We Shortly observe the Lovasco while F.2d 189 after prior revеrsing prein- the dismissal to trial for panel Eighth another divided of the Circuit sus delay, dictment commented a the in footnote that pretrial tained the dismissal of of three counts government contended “that the District Court prein- process, four-count on should have deferred the [defendant's] action on basis, by dictment but was reversed the preindictment delay] [for motion to dismiss until Supreme Court in Lovasco. trial, after any at which it time could have assessed respondent prejudice to the [defendant] Moreover, preindictment 30. where the claim of light of the events at trial.” at Id. 788 n. trial, defense, prior on ruled to the which S.Ct. at 2048 n. 7. ad- The Court declined to frequently position be in the best to find or dress the merits of this it contention because exculpatory allegedly unearth evidence lost due "was not raised in the or the District Court may replace adequately to evidence Appeals.” Court of Id. it, every or substitute for incentive not to And, diligently produce search prior 29. we for such evidence. are aware of one case such Lovasco, trial, however, panel oppo- by just to a 1976 At decision divided of the incentive is the Barket, Eighth Then, adequate the Circuit in United States v. site. if the evidence or some by the taken the-approach on based this a method such reflect circuits at trial: government Townley at See, e.g., proceeding. of to corrobo- unable counsel was as “Insofar pretrial at considered (motion to dismiss (after he testimony that Townley’s rate ruling and reserved hearing, district fraud) in- had he Owens’ discovered had conclusion after motion denied subsequently ap- to not financing company the formed affirmed); States United evidence; we of by for credit applications any further prove Cir.1978) (motion (6th Scott, F.2d 1013 ex- government investor-purchasers, indict- three-count of counts two dismiss dispute Town- it would stated pressly trial, prior to prejudice without denied ment argument by neither testimony, and ley’s. evidence, jury of all close after granted cast doubt attempt it did nor affirmed). count; remaining acquittal Cf. Townley or act upon this creditable Glist, F.2d 1374 whose customer-witnesses upon his two preindict- for Cir.1979) (motions to dismiss him. to corroborate testimony tended prior to advisement under delay taken ment disclosure made full further government counts four to one-of as granted trial and him attorney to aid Townley’s files to affirmed).31 trial; days of five after at Id. the defense.” preparation omitted). (citation example 585-86 instructive Townley presents showing of substan- did government strong pretrial And, we observed howof in the “who ultimately a witness dissolve available” “had use but prejudice tial exculpa- Townley Townley’s itself. trial doubt cast have unfolding of would accordingly charged with 586. We testimony.” Id. at tory partner Owens and his decision, after inducing per- court’s the district affirmed connection mail fraud evidence, deny Town- all the in nonexistent close invest purchase sons preindict- dismiss pretrial Town- motion ley’s Townley machines. vending delay. delay ment preindictment that due ley claimed really opinion had is our that he Similarly show instructive unable he was pre- court’s produced reversing district McGough, would machines believed pur- for the on account dismissal investment trial a valuable and be claim the defendant’s requisite described delay. We concluded We chasers. shown been as follows: have would substantial as of actual “McGough’s case” assertion government’s thrust “had the upon the primarily Townley well based his “been defense presented wit- defense potential deliver six of some could death Owens that he knew witnesses, these could Some the scheme nesses. or that sold the machine as testified claimed, McGough We found Id. successful.” not be of several knowledge however, because firsthand prejudice, substantial gov- into case,” entered which transactions government’s thrust “the main under- amount calculation [particular] ernment’s trial, “concerned presented as im- might testimony of stated; others Townley in the made misrepresentations [T]he witnesses.... Townley peach machines.” sale hearings that at the asserted to ade- being unable claimed govern- to be of them expected two that, testimony as his corroboratе quately witnesses, witnesses than rather fraud, took Owens’ he discovered soon ' Id, defense.” rejected We investors. protect the action gov- allow This will preverdict. more have far we produced, can dictment — not is substitute of a event in appeal dismissal been. really not have ernment could that it confidence guilty, the (if issue is not the verdict guilty verdict some of least in at on Although appears that aside and, be set moot) 31. dismissal should is prior to ruled the motion trial necessity cases a new these appeal, will obviate practice will verdict, normally better the much jeopardy might double any raise (which event to dismiss— rather than the verdict be await concerns). an en- be of would dismissal where particularly part the in- forming a substantial tire count 1992; Connally, Although we could “find no indication that died in October John 15,1993. weighed contradictory trial fac who died June stating tual before that there was assertions Tschearner, Levy As to far so as this prejudice,” id. at we nevertheless discloses, may they record well have died findings not remand for further in that did 1988, prior any delay having be- respect, but rather ordered that “the case is undue, arguably come their even and hence prompt for a trial.” Id. 605. remanded “loss” be im- any could not attributable to Marion, respect 325-27, quoted In this we Gubert, proper delay. The same is true of may 466: of trial 92 S.Ct. at “Events demon who for all this record shows died have prejudice, present strate actual but at the Moreover, January no 1988. there was appellees’ time claims are specu adequate showing that these three individu- premature.” lative and Id. at 604-5. See any testimony als could have contributed also, e.g., Whitley, Robinson v. 2 F.3d was material or related to matters that could — (5th Cir.1993), denied, cert. U.S. Levy not otherwise be' established. was not -, 1197, 127 (1994); L.Ed.2d 546 any knowledge claimed to have at all of— Rice, United States 550 F.2d any participation in—any much less of the Cir.), cert. simply transactions issue. He would have (1994).32 479, 54 L.Ed.2d 312 savings an testified how outside director of a typically and loan association functioned and Prejudice in this case management. relied оn sugges- There is no stage proceedings, any At this testimony tion that similar otherwise claim that Crouch and will suffer actual Tschearner, readily available. aas Bankers’ and substantial from the employee, negotiated Ferguson concern- delay—let preindietment alone be convict ing purchase his from Bankers its REO purely speculative unsupported ed—is tracts, and, Crouch, according to have the record. So far as actual is only people Ferguson testified that the men- concerned, simply there is basis which tioned to Tschearner as individuals at Delta to conclude this case will not be another Ferguson Gerjes with whom dealt Townley. Erskine, and Crouch was not mentioned. necessarily Crouch’s main claim is that But is contrary this testimony case, caused him to government’s theory lose six wit- there prior July nesses who had died nothing suggest Ferguson give hearing .namely: magistrate judge, contrary testimony not, indeed, before the or will con- father, 1992; Gubert, who putative his died June firm testimony Tscheamer’s 1988; unspecified Ferguson who died time in did not mention Crouch to Tschearner, Bankers, employee Further, who Tschearner. Tschearner wholly unspecified died at a knowledge time before re- shown to have other of or ‍​‌‌​​‌‌‌​‌​​​‌‌‌​​‌‌​‌‌‌​‌​​​‌‌​‌​‌‌​​‌​​​‌‌​​​‌‍.had indictment; Levy, turn issue, Bankers connection with the transactions at Fieselman, outside director and chairman itsof loan and president Bankers’ then who executive committees signed who also died at a papers on behalf Bankers all the wholly unspecified time before the signature indict- for its in the ques- transactions in ment; Carson, Bank; tion, chairman of Vision testify.33 who was alive and available to As Robinson, petitioner (pretrial) the habeas claimed claim government that procure had allowed the post-indictnient him, caused him to lose evidence witnesses, having two longer one died other no acquired that at trial such "[n]o later locatable, who "would have corroborated against any was Rice, offered ever of the defendants.” presented rejected 'alibi' at trial.” We 550 F.2d at claim, end, however, stating, "By this the trial’s prosecution It managed was also asserted that Tschearner many could to blow so testify holes in testimony then value of the Bankers REO Robinson’s alibi that the effect their However, tracts. there would have is no claim that had would .to incredibly reasonably transformed Robinson’s information was not available alibi from an Robinson, sources; just significance tall tale tall one.” nor can the actual F.3d Rice, rejecting testimony 571. In be assessed on the basis of this claim, observed, concerning we the defendant's record. to, bonus his 1989 prepared was showing Crouch absolutely no Gubert, there conviction. case or knowledge of any had he that claim or Corson,- the transactions any witness, of had missing participation fifth Crouch’s testimony is essen- Bank, an institution putative His of Vision question. chairman been father, any of Crouch’s that involve- as to have by anyone same tially the claimed not show below, insufficient is transactions. and in the instant discussed whatever any had reasons. same that Corson for the claim Crouch does Nor of, any participation or knowledge whatever 1992, and in June died father Crouch’s Crouch transactions. in, instant any of the testimony his of loss accordingly the —unlike have testi- could thought Corson apparently Tseheamer, and Gubert —is Levy, that unexplained and wholly unrelated fied any here fairly attributed doubtless occurring estate real Florida transactions — improper. and undue found be that here the transactions and after before both his that claim not However, does Crouch Delta offi- Ferguson involving at issue— been to have not shown father —who person” type of Erskine, “the to show cer any of officer, or director employee, Delta transac- Such unrelated “is.” of them each indictment —ever in the referenced times attenuated the most best of tions of, any inor knowledge whatever any had already Moreover, Ferguson relevance. charged in, any of the way participated involving the instant offenses guilty to pled Crouch matters Many of the transactions. that do willingness to transactions, his so to—such have testified could father says his hardly inconsistent thing is sort Delta director Crouch, though that as isNor proof at trial. likely government’s officer board, a Delta was not of its chairman would Ferguson that any indication there office not have did employee and transac- Florida in the deny his involvement had testi- father his and that premises, Delta any event is tions, of which nature ap- bonus Geijes in against case— fied the case likewise This is unexplained. wholly : as as well undisputed essentially pear to indeed, indication there is no Erskine; toas While by other evidence. easily established testify. likely Erskine testify that would his father states Crouch Connally, who John Finally, claims Crouch di- father, myself, other my “Geijes misled illness, would 15,1993, a brief after Delta,” died June is this and shareholders rectors unclear, is It witness. a favorable best, have been as relevance attenuated at- is witness however, this the loss that transactions any concern not does delay. Crouch tributable simi- claim Moreover, is no there issue. about indicted might well be he aware of was others from testimony is available lar died, Connally John before months fifteen example, For directors.34 Delta several him steps to interview took apparently report of examination FHLB is this what set- Moreover, original trial like. Gerjes or the (who succeeded Cholakian relates several a time ease was ting this since a director been had president there June before nothing months examiner, there 1982) told Connally would John suggest nothing so available is not Cholakian indicate setting. the earlier already been unavailable noted, Gerjes, Moreover, as testify. testimony showing his any is there Nor on Delta illegal taking “bonuses” convicted “I said Crouch favorable. have been of would misleading to some loans, may admit well have testified Connally would like” feel observe further We members. board Delta Bames-Con- himself consider did Geijes is avail- impeachment ample loans the Delta liable nally partnership testimony of apart from able, wholly fi- Connally’s John Connally because Mark prior Gerjes’ two father, Crouch’s after months six statement involuntary nancial his bargain, convictions, plea his as liabili- them list did сlosed the loans fact Delta, termination showing that However, nois there him, ties. testified father Crouch’s association officers rely what the equally to apply observations same These testify told me.” “I his father Crouch’s assertion financial statement is unavailable. Nor is away thrown in 1990 any included related to any suggestion there that either Mark Con- the transactions involved the indictment. asked, nally or Ben Barnes or the will When if she knew whether Frye had dispute that Connally John did not ever any con- house, files at his replied, she “I don’t sider himself or his partnership with so, Ben think I say can’t yes or no.” It Barnes liable on the Delta loans to Mark appears that all documents, loan includ- Indeed, Connally. repre- ing closing statements and showing records sented at the hearing before magistrate disbursements, available, are and Frye does judge people that “the from Austin who were otherwise, not contend except in two particu- involved this case were Ben Barnes and lars.37 Connally, Mark Connally.” John There First, the loan documents include a Memo- assume, is prior trial, no basis to randum of Participation Profit Agreement, trial evidence will show otherwise. At this by executed Ferguson D, C & Inc. and stage it simply impossible tell whether Frye’s J.M.G. Corporation in recordable Connally’s John absence substantially would form, reflecting that Ferguson D, C & Inc. defense. profit participation in one Delta To the extent Crouch may have lost Frye REO purchased, tracts but not specify- any improper witnesses due to delay, ing parties’ respective percentages of any shown resulting actual, substantial profits.38 Attorney Johnson testified that prejudice, and his claims of prejudice are document, and certain other of the loan essentially speculative premature. As to pertaining documents to transactions be- documentation, lost Crouch’s motion to dis- Frye tween Ferguson (including a note miss admits that “the Defendant cannot point trust, and deed of in .which Johnson was any the loss significant documents trustee, named and a letter from Delta to And, this time.” there is Ferguson D, Inc.), C & appeared to have any of the loan documents or closing papers prepared him, by been as they bore typed his missing.35 are initials and their style format and were con- Frye testify did not evidentiary sistent with his usual drafting of such docu- hearing. Frye’s secretary, former ments. who Johnson came at the time the loans closed work for him in March testified was with Phillips, King, & Wright Smith in September 1990, when firm, he moved law to a which he subsequently left office, smaller she away threw all his March office and one of closing state- (except files). files accounting Frye had cus- ments shows that firm’s paid fees were tomarily telephone made notes of closing by Frye. conversa- Johnson testified he had no put tions and them in these files. She had any recollection of of the transactions or of never heard of Delta before Frye testified being closing, had never met or known grand jury on November 1992.36 She did either Ferguson Frye Crouch, and did not know whether or Frye not the office files not know whom he was representing pre- 35. While Crouch’s briefs and argument (as suggest alleged chased Ferguson) nominee being that minutes of loan committee meetings conveyed back to Delta. missing, such is by not established the record. hearing, At the a documents custodian testified it Frye's motion to dismiss for probably take a search of about two weeks delay also mentions five witnesses whom it as- duration to determine if those minutes could be Frye locate, serts is unable to allege but does not located. Just hoped what Crouch to show they to; what could have testified the motion unclear, those minutes is certainly there is alleges likewise Frye’s attorney at the time nothing suggest that Crouch will not be able to (one Higgs) transactions is now unable to show that the minutes did not reflect nominee recall them. The motion not verified and no loans. supporting allegations of those hearing offered at the before magistrate judge. 36. On cross examination she said she was un- aware that after March 1987 was involved “in respecting countersuit” a four million dol- 38. There is no evidence as to whether or not this lar loan at Delta. The record (or indicates that that duplicate it) Memorandum actually of was matter was settled property Frye pur- recorded. agreement). the of essential terms he that He stated documents.39 the paring such an Indeed, evidence that is no there any these of on any file now have not does existed, pro- be cannot it if ever agreement, wheth- recall now transactions, does not evidence that is no There at trial. duced threw never He such file. had he ever er agreement or, have the not Ferguson does Ferguson, Frye, — pertaining any files away any ef- not —or that indeed, Frye does that firm the whether “no idea” He had Delta. or the files of the to search made been fort had on the any files time at the was with he of the time at the with was Johnson law firm Attorney King— question. transactions nothing Finally, is there early transactions.40 the Frye in represented had who be itself agreement the suggest that him at with and sat prosecution stages of Frye than helpful to substantially more judge— magistrate hearing before Frye point The crux Memorandum. with firm same law in the partner awas continuing a he retained to make —that in seeks of the transactions time Johnson Ferguson property with in the interest before —is sometime the firm left but question, At this itself. Memorandum made “ordi- that testified did. Johnson Johnson respecting of Frye’s claim stage, Agreement, Participation Profit narily” a is Participation Agreement alleged Profit par- percentages profit specifying essentially speculative. a accompany Memorandum ties, would had he but Agreement, Participation Profit relates claim Frye’s second having ever recollection independent special no notice original of “a waiver Participation Profit seen Finan- prepared Frye’s J.M.G. meeting of directors” the Memoran- to in as referred Agreement in con- submitted was Corporation that cial for dum. application Delta with nection pur- Frye and J.M.G. $8,950,000 loan prejudiced he has been that argues Frye ap- had Delta REO. chase Agreement Participation the Profit because original unable locate parently been that indicate lost, it would been itself copy of notice, a Xerox but had Ferguson. waiver nominee a mere not was he attorney Dunn. signed purportedly it as In the this. answers several There are informed had Dunn appears that It also that direct is no there place, first docu- signed the not had he that authorities existed; certainly ever agreement an such it signature on purported his and that Converse- testimony that did. no is there that Frye asserts in fact his. not gov- was nothing to indicate is ly, there because prejudicial original is loss of was that there position take ernment performed be analysis cannot handwriting not Ferguson will or that agreement, no such forge not Frye did that (or copy to show existed agreement admit assertedly rele- is This signature.41 Dunn’s testify cannot Frye himself Ferguson or why you haven’t. the Court Q. And tell did not paid, fee his apparently Frye That copy. It's a Frye. A. representing was necessarily he mean analysis handwriting you do can't Q. And then firm his whether know did not Johnson copy? not Frye. represented ever very well." Not A. sugges- further Frye’s response counsel’s suggests that the testimony Johnson’s 40. While a handwrit- it for submit even can't that “we tion March long he left in after had dissolved firm responded: analysis,” Kettler ing "they stored he knew also stated may be some saying There that. "A. I’m campus.” off some files will work laboratory people analyses handwriting people in our copies, our with Agent entirely on FBI based This contention originals. prefer testimony as follows: Ketder's copies; fact, with they work won't Q. And in right? right. me Tell All counsel] [Frye's "Q. it, don’t know but I I doubt know. I don't A. presented this you ever whether they would.” think don't I analy- sure. handwriting for a FBI document handwriting no evidence was There or was Mike whether to determine sis opined copy or ever examined expert had say purports to thing that of this not the author based analysis could handwriting Abe Dunn. it. No, we haven't. A. vant to count charges which Crouch and meeting directors’ actuaHy was held” as al- Frye with false statements to Delta con- leged in count Finally, proof that no $3,950,000 nection loan Frye, con- meeting director’s wholly held unnec- trary to section because essary to conviction on count which in “[t]he aрplication corporate [loan] min- substance rests on the completely unrelated materially utes were false that they allegation, “nominee” as govern- does the purport represent to the intent of the de- ment’s entire theory of the case. We note in fendant Frye Michael J. that he and his this connection that government the has nev- corporation be held Hable for repayment of er position taken the that the papers loan debt, the when the [Crouch defendants not were adequately and signed worded so as Frye] then and there well knew that defen- to Frye bind personally, they or that dant Frye Michael J. was a mere nominee not adequate to his corporation, bind whether borrower who beHeved himself and his or not the directors’ meeting in question company to have no actual HabiKty on the actually And, occurred. Frye pending has AdditionaHy, note. corporate minutes the district court a motion to strike the count were false in that no such director’s meet- 18 directors’ meeting allegation on the ing was actually held.”42 grounds it immaterial, that ruling Again, Frye’s prejudice claims of in this con- thereon postponed has been until trial.43 nection are stage at this speculative at best. if Even potential there were prejudice to begin with, To there is simply no sufficient Frye in connection, it could entirely be showing that a handwriting analysis could by obviated striking from count 18 allega- performed, not be none indeed had even tion as to the directors’ meeting —which (see been attempted note supra). More- would leave plainly main thrust of that over, absolutely there is nothing to indicate wholly count by excluding intact —and/or that the will any make attempt proof as to the verity of signature Dunn’s on prove Frye forged signature, Dunn’s the notice. Dismissing the entire indictment even purported Dunn’s signature was prior to plainly trial is uncalled for. Indeed, not his. evidence that signa- Dunn’s ture on the notice was false is neither Frye’s neces- prejudice assertions of are sary nor prove sufficient to that “no such equally unavaihng.44 42. alleged Count purposе that the of this tent with this by Frye’s characterization of it “nominee loan” was "to avoid loans to one bor- counsel. rower indicated, previously limitations.” As Frye also testimony introduced by attorney government’s theory case was that the real Knoblock, who wrote letters pur- in June borrower, Frye nominee, for whom was portedly Financial, on behalf of J.M.G. Fergu- Ferguson. son and Crouch. The letters were on the letter- head Frye's attorney another points motion out with whom Knoblock failure of the Knoblock, approve not, officed. being letters, board law, "could a shown matter of recognized he said signature been by raised as a defense as his. He borrower corporation," stated that citing represented he had Texas Corporation "just J.M.G. Business for a 2.04(B). period Act brief Art. of time in 1986.” He came to do has never so this, disputed request Croft, argued one Dan has ruling self-employed a mortgage be should deferred to broker. trial. He wrote following the letters meeting a Croft, with attorney and an Knoblock respect Frye’s With possible know, loss of notes of did not purported who represent Fergu- telephone conversations, Frye son, referred "and some other repre- individual memorandum FHLB J.M.G., examiner senting Mims I don’t recall name.” He (whether by conversation telephone clear) is not thinks Croft told him to write the letters. It must Frye July However, before the Frye, have been because Knoblock testified magistrate judge, Frye's posi- counsel took the Frye did not know and had never met or seen tion that this memorandum did prior incriminate him testifying hearing at the before the Fiye, stating "... says nowhere Frye that Mike magistrate judge. He did not know Crouch or was a say nominee. It does that Crouch and who he was. Ferguson. He had met The letter Ferguson put the together whole deal Crouch, and he firm, law Crouch's concerned the [Frye] didn't go even have to sign $3,950,000 to Delta to states, Delta loan to J.M.G. and "It papers, loan which is all true." We have no was the understanding and information of JMG assurance that Mims testify will as to what was that this transaction was to facilitate a sale from said in this conversation manner inconsis- Delta to an purchaser, being undisclosed Mr. actual, preju- Moreover, substantial because discharged Crouch nor Neither required, a at trial trial, defense dice heavy prior burden, especially trial possible potential mere certainly showing of they almost showing that This means suffice. does not substantial, suffer will prior to trial basis delay in on such undue dismissal the claimed reason ever) all but (if than appropriate. more rarely No the indictment. return cases, To dis- indisputable is shown. most speculative clearest and potential, grant other- though court found court, inclined district even extent trict by the supported normally wise, findings motion, are nevertheless should While verdict, clearly erroneous. when after doing until so record withhold actual and may demonstrate trial actual, trial substantial events of assessment the Frye’s and present prejudice, accurately made. be substantial can more prejudice premature. are claims wholly Crouch’s insufficient is the evidence Here and finding that Crouch sustain CONCLUSION may actual likely merely will—not —suffer defense to their prejudice and substantial holdings. our summarize We court found district the the extent To trial. and Towriley balancing test reject the We clearly erro- findings contrary, its the returned is indictment an where that hold may demonstrate the trial of “Events neous. limitations, preindict- of statute the within time present the but at prejudice, actual un- process due violate does not speculative claims are process due appellees’ the prejudicing delay, in addition that less Marion premature.” and by brought about intentionally accused, was gaining of purpose the for government the accused the advantage over tactical court’s the district reverse accordingly We for some prosecution contemplated the and remand dismissing the indictment order court The district purpose. faith bad other herewith.46 consistent proceedings further for finding any such make having declined granting accordingly erred REMANDED faith,45 REVERSED bad prein- for the indictment to dismiss motion delay. dictment whom POLITZ, Judge, with Chief joins hold Judge, further BENAVIDES, We Circuit to dismissal the accused not entitle does dissenting: un- grounds due indictment majority holds Today the improper demonstrates less does amendment of the fifth process clause his prejudice actual, substantial caused indictment require dismissal not be may not prejudice requisite The defense. delay was delay unless pre-indictment otherwise, merely rebuttably or presumed, government by the “intentionally undertaken delay, the district length of the ad- tactical gaining some purpose of contrary and holding to erred court contemplated in the accused vantage over prejudice. presumed relying on partially by imposed evidentiary covery limitations disposed his of all Knoblock Ferguson.” R.B. court declined district judge, the magistrate However, no evi- there in 1991. files J.M.G. faith. governmental bad rule out might con- have those files to what dence testify he could did Knoblock tained. say grant the motion shall district containing letters. The those file saw a he ever trial the events and until unless prejudice to dismiss testimony not establish does This finds, sub- demonstrate, actual the court government suggests Frye. It rather result as the defense stantial Frye to the letters. lying time may a difficult have finds, on delay, improper and undue now trial cannot play out at will all How evidence, that adequate additional the basis reliably ascertained. by the brought about intentionally delay was tac- gaining some purpose of for the recog- correctly noted, district court 45. As for some advantage the defendants over tical justify” "will the record nized purpose. faith However, other bad dis- because finding of bad faith. prosecution or for some impermissible, which are inherent in our civil and political purpose.”1 bad faith I must respectfully institutions and which define the communi- ty’s dissent. sense fair play decency.8 This approach fairly accords consideration to the The Supreme Court never held that competing interests of the government and requisite bad faith ais to the sustaining of a defendant;9 if negligent, reckless, or challenge to an indictment pre- based on slothful conduct placed delay. Although both United on the scale then the suffered States v. Marion2 and United Lov defendant greater to be than in asco3 prosecutorial refer to faith, bad nei cases where governmental intentional con- req ther case proof holds that of such is obtains, duct and vice versa.10 merely Court acknowledges uired.4 if Even warranted, black-letter rule were government’s concessions that intentional my judgment majority errs in requir- conduct would violate the due clause ing intentional conduct. In Lovasco the if had been shown.5 Court with approval referred to the govern- I view majority’s ment’s concession that recklessness sup- insistence on a port bright-line process violation, due requiring stating: rule prosecutorial bad contrary faith as to both Lovasco and Mar- In Marion we noted with approval that the ion which teach that the administration of Government conceded that a “tactical” de- justice, in the context of a right defendant’s lay would violate the Due Process Clause. trial, to a fair case-by-case necessitates The Government renews that concession inquiry.6 Lovasco clearly articulated our expands here and by stating: somewhat task: we “must consider the reasons for the “A process might violation also be delay as well prejudice as the to the ac- upon made out a showing prosecutorial cused.”7 In undertaking analysis we delay incurred in disregard reckless of cir- should balance prejudice actual to the cumstances, known prosecution, sug- against defendant the reasons for the delay gesting that there appreciable existed an in our determination whether delay vio- delay risk that impair would the ability to lates those fundamental concepts justice mount an effective defense.”11 Slip opinion 1. at 3872. later, that Indeed, statement remains true. intervening years so few defendants have 307, 455, 2. 404 U.S. established that they prejudiced delay 30 L.Ed.2d 468 (1971). that neither this Court nor lower court has had a sustained opportunity to consider the significance constitutional of various reasons 3. 431 U.S. 97 S.Ct. 52 L.Ed.2d 752 delay. for courts, [] We therefore leаve (1977). the lower instance, in the first apply- the task of ing the principles settled of due Moran, 4. See United States v. F.2d we have particular discussed to the circum- Cir.1985), denied, cert. 474 U.S. stances of individual simply cases. We hold (1986); Barker, L.Ed.2d 920 Howell v. in this case the lower courts erred (4th Cir.), F.2d 889 cert. 498 U.S. dismissing 796-97, the indictment. Id. at (1990). 112 L.Ed.2d 595 (citations S.Ct. at omitted). and footnote Lovasco, 7. 5. U.S. at Lovasco, See 97 S.Ct. at Moran. See 431 U.S. at 796 (“In n. 97 S.Ct. at 2051 n. 17 Marion we Lovasco). (citing Howell approval noted with that the Government con- ceded 'tactical' would violate the majority expresses 9. The about concern diffi- Due Process Clause. The Government renews culty balancing reasons here_”). that concession against prejudice. may While this be diffi- cult, judges federal required to undertake 6. Howell. In Lovasco the Court stated: inquiries similar daily on a basis. In Marion we conceded that we could not 10. Moran. determine in the abstract the circumstances in preaccusation which require would dis- (citations n. 97 S.Ct. at n. 17 missing prosecutions. years omitted). More than five despite the directs Today’s decision defendant, severity of pre-indictment length ignoring improper prove cannot if a delay, defendant process violation motive, no due

prosecutorial smothering me, is, This occur. com- and the ‍​‌‌​​‌‌‌​‌​​​‌‌‌​​‌‌​‌‌‌​‌​​​‌‌​‌​‌‌​​‌​​​‌‌​​​‌‍justice concepts of fundamental I balance play. of fair

munity’s sense by the district found actual rea- assigned government’s setting, deter- and, in that for the sons a due has been there whether

mine

violation.12 find- court’s the district bar ease at

In the clearly erro-

ing for inac- reasons government’s and the

neous warrant justify or viewed, do not

tion, fairly pro- a due perceive I delay.13 inordinate dismissal affirm and would violation

cess indictment.14 respectfully dissent.

I Miller, D. and Russell ALPERN

William others all of themselves behalf situated, Appellants, similarly

v. INC., Appellee. UNITED,

UTILICORP 95-1456, 95-2356.

Nos. Appeals, Court States

United

Eighth Circuit. 11, 1995. Dec.

Submitted 17, 1996. May

Decided strong admonition majority’s reject the 14.I also an indictment Townley, 665 F.2d See, v. e.g., States pre- be dismissed should Cir.), U.S. (5th cert. to the economic In addition trial. (1982); United 73 L.Ed.2d trial, unnecessary addi- associated costs tional interests Cir.), (8th Miller, cert. F.3d States denied, -U.S.-, merely imperiled. It is not L.Ed.2d defenses, includ- meritorious envision fanciful Howell; (1994); Moran. claims, go beg- might which ing constitutional punishment if harsh of a more ging for fear jus- system of Our Crouch, proceeds to verdict. F.3d matter tice does 13. United thereby. gain 1995) opinion). (panel Cir.

Case Details

Case Name: United States v. A. Guy Crouch, III and Michael J. Frye

Court Name: Court of Appeals for the Fifth Circuit

Date Published: May 30, 1996

Citation: 84 F.3d 1497

Docket Number: 93-7719

Court Abbreviation: 5th Cir.