*1 believe, however, Chief, damages. that assess We prior approval of the agent with cial Division, appropriate for the the trial level is the site indicated Investigation Criminal of the amount of dam- “Special Agent” factual determination The title copy. on the file Dr. Barrett as a result ages to be awarded to will be Investigation Division and Criminal mailing circular Agent Hanson’s signature block. included Accordingly, letters. we REVERSE aware of that he was Agent Hanson testified REMAND judgment of the district court and that he mailed the at the time Chapter damages. for a determination of however, Curiously, Agent Hanson letters. he did not recall further testified prepared Chapter 347.2 when he

specifics of date of letters. As mailed out the special

trial, had worked as a Agent Hanson Investigation Division

agent in the Criminal Yet, years. provided he no for 19 of the IRS America, UNITED STATES complete to follow his failure explanation for Plaintiff-Appellant, Dia Chapter 347.2. See the mandates of (IRS mond, agent n. 3 stated 944 F.2d at 438 body indicating in the a circular letter Guy CROUCH, A. III and Michael investigation criminal was the letter Frye, Defendants-Appellees. J. by supervisor under approved

would not be No. 93-7719. 347.2). Finally, note that Chapter being conducted investigation that was Appeals, United States Court years Agent for the tax 1977 and Hanson was Fifth Circuit. Nonetheless, Agent Hanson sent let 1978. April 1995. were treated Dr. patients ters to who No work or and 1980. Barrett Granting Rehearing En Order performed investigation had been whatsoever Banc June years.6 for these objective good-faith test to the Applying an facts, can lead us to

uncontroverted agent a reasonable IRS

conclusion: express provi- violated the

would not have Chapter 347.2 of the IRS

sions contained good Agent Hanson did not act

manual. judgment of the dis-

faith. reverse We' court;

trict is liable to Dr. Barrett IRS §

under 26 U.S.C.

IV. Conclusion in conclud- the district court erred

Because liable, it made no

ing that the IRS was

findings of Dr. Barrett’s dam- on the issue acknowledge that Dr. Barrett

ages. We evidence of his dam-

sented uncontradicted trial,

ages urges he this Court to during ated, by receiving Interestingly, Agent Hanson also testified that or otherwise distressed relationship between Dr. Bar- he knew that the letters which would Dr. Barrett's relation- harm patients personal and confiden- rett and his tial. ship patients. with his While this evidence does Directly contradicting prior sworn testi- directly impact question objective, Agent mony during proceeding, a related Hanson faith, subjective, good opposed to it is indicative think that Dr. Barrett’s stated that he did not gross negli- Agent Hanson's willfulness or patients undergone plastic or recon- who had gence. embarrassed, surgery would be humili- structive

Background 1986, In March of examining while Savings records of Delta Association of Tex- as, institution, investigators a failed federal discovered that the institution had been en- gaged in a “cash for trash” scheme.1 Delta regulations officials violated federal which prohibited excessive loans to one borrower by using bogus nominee borrowers who bore personal liability no for the loans contracted. . Gerjes, Criminal referrals issued for Carl president, Delta’s Ferguson, an Robert in- investor, Crouch, volved real estate Delta’s attorney and chairman of its board of di- rectors, allegedly and who acted Frye through corporate ego, alter JMG Finan- cial, as a Ferguson. nominee borrower for began investiga- 1986 the an activities, tion focusing- Gerjes into Delta’s on Ferguson, leading and to the conviction of Gerjes guilty plea in 1989 and his conviction separate on but related offenses in Womack, Turner, Guy L. James L. Paula Ferguson’s well as conviction in 1992. On Offenhauser, Attys., Gaynelle C. Asst. U.S. November 1992 a 19-count indictment Jones, Houston, TX, Atty., U.S. for Griffin up against Frye, handed Crouch and appellant. funds, charging misapplication of 18 U.S.C. Professor, McCabe, Neil Colman S. Texas 2, 657; entries, 2,1006; §§ §§ false 18 U.S.C. Law, Houston, TX, Jimmy College of Phil- statements, 2, 1014; §§ false 18 U.S.C. and TX, Rozan, lips, Jay Angleton, Steven Hous- fraud, §§ bank 18 U.S.C. ton, TX, appellee for Crouch. Citing eight-plus years between the indictment, alleged crimes 1984-85 and the Pinson, Bussey, Theo Pinson W. & William Frye Crouch and asserted from the Houston,. TX, King, appellee Frye. E. pre-indictment delay and moved for dismiss magistrate A judge al. recommended dis: presumptive missal because of both and actu passage al caused of time. Following de novo review the district court a. POLITZ, Judge, Before Chief GARWOOD recommendation, adopted BENAVIDES, Judges. presumptive preju defendants had suffered dice because of the POLITZ, Judge: Chief prejudice resulting from the due to the unavailability The district court dismissed indictments because death Crouch, Guy memory disappearance A. III and Michael J. loss and alleged illegal exculpatory Applying which arose out of bank- records. activity. ing assigned, For the reasons v. Brand2 and test directed United States Townley3 affirm. for claimed 1977), denied, 1.Delta made loans to real estate investors condi- 2. 556 F.2d 1312 Cir. cert. purchase property acquired by (1978). tioned on their Delta primarily through prior defaults. The liabilities, property "sale” of this reduced Delta's 3. 665 F.2d reserves, required lowered its ly cash and artificial- worth, thereby evading increased net closer inquiry operations. into its accused,”6 require resulting pre- violations of automatic dismissal of the indictment. court found that delay, the reason for assigned government’s Following began develop- Manon we resources, outweigh preju did lack of process in of a test for violations of due Frye. The by Crouch and dice suffered *3 Despite Manon this context. the Court’s indictment; govern the the court dismissed and in express refusal to “determine when timely appealed. prejudice circumstances actual result- what delays requires ing pre-accusation the from Analysis prosecution,”7 in dicta we dismissal of the showing prose- that a used the statement court’s faults the district government The required cutorial bad faith automatic dismiss- balancing Bmnd/Towriley test. use of the proposition very al for the different that such were able assuming Crouch Even qua showing was a sine non for the government the contends prejudice, to show process Because the of a due violation.8 prosecuto- inability to demonstrate that their in those cases were unable to defendants dilatory the indictment de- rial faith for bad prejudice showing make a due to It cites motion for dismissal. feated their dispositive in a apply did not this statement proposition post-Tawnley decisions for the ruling. process a due violation to establish delay a defendant based on Supreme The Court next considered this intentionally prosecutor the must show that Lovasco,9 stating v. issue United States delayed gain to tactical advan- the indictment proof prejudice necessary “a was tage.4 claim, process of a due not sufficient element process inquiry Supreme and that the due must con- In v. Marion5 the United States although primary protec sider the reasons as well as the held that Court arrest, accused,”10 including delay prior in to the against undue tion dictment, inquiry delayed prosecution vio- appropriate information is the whether the limitations, process “elementary play clause of fair the due lates standards statute decency”11 protec conceptions offers some and “fundamental of the fifth amendment justice which lie at the of our civil and tion from to a defendant’s case base accepted, balancing the arising political The Court institutions.”12 After by an 18-month example, government’s contention caused as an delay— government’s reason for that if it be shown that continuing investigation “an inten Lovasco prejudicial created —the advantage upheld tional tactical over Court dismissal of indictment. device Byrd, authority squarely 31 There is no Court 4. See States v. F.3d 1329 United Neal, Cir.1994); v. 27 F.3d 1035 that satisfaction of both elements of United States - denied, -, (5th Cir.1994), necessary the test is a due cert. find 1165, (1995); violation whether, there substantial doubt [and] and United remains S.Ct. 130 L.Ed.2d 1120 pre-accusa- Amuny, in a case in which actual v. 767 F.2d 1113 overwhelming, govern- tion purposeful delay ment's would have to be 307, 455, S.Ct. 5. 404 U.S. shown; or, alternatively, govern- where the (1971). blatant, whether the ment's misconduct was defendant would still bear burden of show- 322, U.S. at 92 S.Ct. at 464. ing prejudice. 541 F.2d at 1107 n. 9. 7. Id. 9. 431 U.S. 52 L.Ed.2d Avalos, See, e.g., 541 F.2d 1100 United (5th Cir.1976), (1977); S.Ct. 10. Id. at 97 S.Ct. at 2048. Butts, (5th Cir.1975). 524 F.2d 975 Avalos, however, 11. Id. at noted a caveat to use of requiring prosecutorial standard (citations omitted). faith, stating: 12. Id. at 97 S.Ct. at 2048 bad sufficiently good-faith also noted that follow- The Lovasco Court balanced rea- appel- government,16 it nor lower sons advanced ing Manon neither opportunity late court had “had a sustained Townley court left no doubt that a show- significance constitutional to consider the ing faith bad was not a delay.”13 various reasons for Instead of requisite for a violation. We issue, opted the Court passing noted: rulings such to future decisions of the leave applying “the [aforementioned] lower courts [T]he Lovasco test would be re- process.”14 principles settled of due duced to mere words if indeed the ment’s bringing 41-month in- Brand, applying first one of our cases excusable, dictment were whatever *4 Lovasco, teaching noting of after that defendant, prejudice caused simply by prejudice must be shown as a thresh- that the negli- matter, that old we stated Lovasco did “not gent, grossly, however and not bad-inten- governmental indicate that interests not tioned.17 amounting to an intentional tactical will automatically justify”15 prejudice. such subsequent Several decisions overlooked Rather, that we concluded Lovasco stood for Townley’s holding and relied on the dicta balancing government’s need for the de- pre-Lovasco from stating pre- cases for that lay against prejudice by the actual suffered delay may indictment result in dismissal of the defendant. an indictment when the resulted from an ill-intentioned act in We next addressed the issue Town long-estab- ment.18 accordance with our crystallized ley process and the test for due rule, lished we are bound follow the earli- thusly: violations dispositive est articulation of a rule as the “panel may decision of one not overrule the bears the burden of proving [T]he accused decision, right wrong, prior panel of a in and, prejudice require- if the threshold the absence of en banc reconsideration or met, prejudice ment of actual is not superseding decision of inquiry prejudice ends there. Once actual Court.”19 apply We therefore must shown, necessary engage is it is in a Brand/Townley, balancing test as the bind- sensitive of the government’s ing precedent. correctly The district court investigative delay against need for an holdings upon relied of Brand and Town- asserted the defendant. The ley in its evaluation of the merits of defen- inquiry prosecution’s turns on whether the dants’ motion to dismiss. conceptions actions violated fundamental of justice community’s or the sense of fair part find merit

play decency. We adop- and Inherent in the government’s challenge to the district balancing process tion of a court’s is the notion ruling, specifically particular weighed pas that the reasons are to be sage years particular prejudice approximately eight suffered ease-by-case alleged on a ... basis. commission of the crimes to the issu [D]ue degree ... turns prej- presumptively whether the ance of the indictment was thereby udice prejudicial. authority sustained the accused is As trial court cited (5th 13. Id. Wehling, 97 S.Ct. at 2052. 18. United States v. 676 F.2d 1053 also, Neal; e.g., Amuny; Byrd; See Beszborn, and United States v. 21 F.3d 62 Id. , — --, denied 130 L.Ed.2d 288 15. 556 F.2d at 1317 n. 7. Burlington Northern Railroad Co. v. Brother (citations omitted) (emphasis 16. 665 F.2d at 582 Way Employees, hood Maintenance added). Cir.1992), denied,-U.S.-, rt. ce (1993) (citations omitted). Id. States,20 and how the witnesses were lost lost which involved which Doggett v. United crucial to rebut the credibili- witnesses were the ex- support for as posi-indictment Gerjes Ferguson, ty character of and and in this presumptive istence government’s star witnesses.25 potentially the reliance We find this delay case. father, potential included his These witnesses not does “pre-indictment misplaced as Crouch, Jr., who, a former Guy A. board issue, in- but is Amendment raise a Sixth Delta, major president and stockholder process clause under the examined stead support have testified Crouch’s would Fifth Amendment.”21 Gerjes had misled the board and triggering require precedents Our officers about his unauthorized other Delta actual, presumptive. Twen- be corroborating operations. Other witnesses ty years ago we stated Gubert, director, Tranquillo another included asserted, Tschemer, ac- president Larry former vice when and scheme, merely entity who the real of an involved tual dealings their with would have testified about ex- prejudice inherent possibility of Gerjes Gerjes Fergu- Ferguson. As necessary element which delay is a tended likely cooperating with the son be the restraints of the before must be shown prosecution in its of Crouch and applied be to bar a clause will Frye, lost would also be crucial prosecution because delay.22 *5 impeachment purposes. for and rebuttal recog- subsequent decisions23 Toumley and The record also contains references lost proof must show of that the defendant nized evidence, documentary including exculpatory requirement. as a threshold actual Participation Agreement” a lost “Profit be- that there was conclusion district court’s The Frye Ferguson’s corporations tween that pas- prejudice from the mere presumptive allegedly Frye’s shown intent to would have incorrect. sage of time was Ferguson developing in work with the land decision, quo based its court a’ also The Frye purchased, rebutting claims that was finding prejudice, however, upon of actual its materially with the loan and involved Further, authenticity purchase. loss of focusing upon Crouch’s land of constituting witnesses, copy of a document evidence potential of the deaths of several conspiracy poses act a materi- an overt of Frye’s critical and excul- claim that government Frye that al issue. The claims documentary missing. was patory evidence forged signatures to a waiver of notice form challenges finding, this con- The allegedly purchase his of that facilitated preju- claim of tending that the defendants’ record “trash” real estate. The establishes only vague of assertions of lost dice consists only original copy an can be examined memories, witnesses, misplaced or doc- faded and, authenticity original cannot for be uments. found, Frye there is now method which no Findings actual are reviewed of signatures can show that the on the waiver We find no under the clear error standard.24 were authentic. The record also reflects that supports record present. error lost, such Frye and either both Crouch factors, to the above finding through disposal of routine or surrender au- exactly personal that could have established records reflecting that Crouch thorities,26 — -, generally bear the burden of 112 120 L.Ed.2d defendants estab- 20. U.S. S.Ct. lishing prejudice.”). 520 actual (emphasis original); Byrd, at in 31 F.3d 21. Neal; Beszbom; Byrd; Amuny. Marion. Beszborn, 21 F.3d at 66. McGough, v. 510 F.2d 22. United States added) (citations (5th Cir.1975) (emphasis omit Further, indicates that because record Accord, ("The ted). passage Butts at mere cooperation against Gerjes, there is Crouch’s type of actual constitute] time prejudice necessary [does] animosity. likelihood of the latter’s aside an indictment set appropriate statute of limita returned within the West, 26. Crouch bases his to retain records failure in ..."); tions. part upon receipt, separate on at least three 367 3073, occasions, (1978) ("[I]t readily from assurances 57 L.Ed.2d investigation. target was not a this court that the that he inferable from the decisions of rebutting proof guilt. My their first majority in concern is that the assisted de- irreplace- of these lost documents were Some parts overwhelming weight from the able; fact, with both when combined that, holding cedent this Circuit where validating expert evidence the defendants’ run, limitations have not may defendant memory claim of loss and the aforementioned prevail nevertheless on a due testimony, supports exculpatory amply lost though gov- even finding the court’s Crouch intentionally delay ernment did not the in- significant prejudice. actual suffered dictment to advantage tactical or for Townley’s holding, after Consistent with impermissible purpose, other and the from manpower arose because of the lack of weigh preju- the court must the actual priority assigned and the low investiga- dice suffered the reasons A tion. less than exhaustive review of this The record reflects published opinions Court’s since United knowledge Frye’s ment had of Crouch’s and Lovasco, latest, dating, very involvement August receipt of the criminal refér- (1977), reflects that at rals, investigation but did not initiate an un- twenty-nine least judges different of this til, earliest, very May at the of 1991. The twenty-five thirty-two individ- Court — long delay launching reasons for the uals who have ever served as an active or were, investigation essentially, lack of man- judge senior split this Court since it Octo- power priority and the low which this investi- authored, joined ber 1981—have or with- gation assigned. Although “prosecutori- reservation, out opinions unanimous in some personnel al overload and insufficient ] eighteen different stating eases might slight weight be entitled to prove substance that pre-indict- “[t]o considerations,”27 balance of due process rights, violated his due weight slight outweigh is insufficient to *6 defendant must prose- demonstrate that the Frye to Crouch and caused lengthy pre-indictment delay.28 intentionally delayed cutor Un- the indictment to presented by par- der the circumstances advantage a tactical and that the defen- case, requiring ticular conclude that we dant incurred substantial aas re- Crouch and to stand trial now would be delay.” sult of Byrd, United States v. 31 fundamentally unfair and violative of due (5th Cir.1994).1 1329, F.3d 1339 process. Citing acknowledged our rule that “one judgment of the district court dismiss- decision, panel may right not overrule the or ing the indictment is AFFIRMED. wrong, prior panel in the absence of en GARWOOD, Judge, dissenting: banc superseding reconsideration or decision Court,”2 respectfully justi- I majority dissent. of the 949, 1611, 27. 665 F.2d at 586. 480 U.S. 107 S.Ct. 94 L.Ed.2d 796 Johnson, 833, (1987); United States v. 802 F.2d Although delay longer (by the actual was 835, (5th Cir.1986); Scott, 836 United States v. months), period investigation about 18 of the 1245, (5th Cir.1986); 795 F.2d 1249 United Lovasco, supra. is not considered. See Ballard, 287, (5th Cir.), States v. 779 F.2d 293 denied, 1109, 1518, cert. 475 U.S. 106 S.Ct. 89 post-Lovasco published opinions 1. Other of this (1986); Amuny, L.Ed.2d 916 United States v. 767 holding stating Court so include: United 1113, (5th Cir.1985); F.2d 1119-1120 United Neal, 1035, (5th Cir.1994), States v. 27 F.3d 1041 1053, (5th Wehling, 676 F.2d 1059 Cir. denied, -, 1165, cert. -U.S. 115 S.Ct. 130 1982); Hendricks, 38, United States v. 661 F.2d Beszborn, (1995); L.Ed.2d 1120 United v. States Nixon, (5th Cir.1981); 39-40 United States v. 634 62, (5th Cir.), denied,-U.S. 21 F.3d 65-66 cert. 306, (5th Cir.1981); F.2d 310 United States v. -, 330, (1994); 115 S.Ct. 130 288 L.Ed.2d Durnin, 1297, (5th 632 F.2d 1299-1300 Cir. Hooten, 293, (5th United States v. 933 F.2d 296 1980); Ramos, 1078, United v. States 586 F.2d Guste, 1142, Cir.1991); Dickerson v. 932 F.2d (5th Willis, Cir.1978); 1079 United States v. 583 denied, 875, (5th Cir.), 1144 cert. 502 U.S. 112 203, (5th Cir.1978). 207 F.2d 214, (1991); S.Ct. 116 L.Ed.2d 172 Delano, 766, (5th Cir.1990); v. Burlington 912 F.2d 769 Northern Railroad Co. v. Brother Varca, 900, Way Employees, United States v. 896 F.2d 904 hood Maintenance 961 F.2d Cir.1992), denied, 878, 209, denied,-U.S.-, cert. 498 U.S. 111 S.Ct. 89 rt. ce Carlock, (1990); (1993) (citations 112 L.Ed.2d 170 United States v. (5th Cir.1986), denied, omitted). 549 cert. delay intentional tactical foregoing mass of not show departure from its fíes Thus, footnote 7 prosecution. Brand’s by reliance on United precedent Fifth Circuit decidendi, (5th Cir.1977), its ratio and is part forms no Brand, F.2d 1312 v. States purely dicta. (1978), United by two Townley quorum decision —a (5th Cir.), cert. de F.2d 579 Townley, 665 rather than judges may well be — 1010, 102 nied, S.Ct. Townley we concluded simply dicta. (1982). Laying aside L.Ed.2d delay that the was due there was no evidence functional may have had the thought that we prejudice” to the defen- to “bad faith motive establishment of the banc equivalent of en rationale 665 F.2d at 581. Under the dant. applied recently stated rule most predecessors, that alone Byrd and its clear to me event Byrd, it is affirmance, justified though have even weight Townley cannot bear Brand and lengthy pre-indict- we concluded “the assigned them. Townley.” delay prejudiced somewhat However, proceeded to actu- Id. at Brand, that intention- its statements As to ally balance extent advantage need not be tactical al delay, stating that for the the reasons the reasons for the and that instead shown show a due such a could against the result- be balanced should pre-indictment even violation n. are F.2d at 1317 ing prejudice, 556 de- though there no “intentional tactical was rejected the defen- Brand plainly dicta.3 lay part on of the or harassment delay claim because he dant’s ultimately concluded ment.” Id. at 582. We any prejudice ad- had not demonstrated —an unfolded, actually way the trial that the irrespective of for relief requirement mitted sought particularly way delay. Id. at 1316-1317. for the the reasons case, prove that the was such prejudice discussion At the end substantial, sufficiently Townley adverts to whether never even text —which against the for the when balanced reasons beyond prejudice is re- further (“the investigations ... press of other only in called for. It is quired —footnote present low-priority accorded investi- language on relied this footnote changes governmental ... gations and However, by this majority appears. 581), prosecuting personnel,” id. at already deter- stage the Brand court process.4 to a of due amount denial deny because of the absence relief mined to *7 then, Moreover, Assuming, Townley holding, in is nothing footnote prejudice. of dicta, binding it not be the not is nevertheless in its text —identifies 7 of Brand —or holding in cause it conflicts with our earlier delay purports or to charac- for the reason Durnin, 632 F.2d 1297 being being or United States v. as terize the reason either Dumin, rejected a advantage, negli- In due or for tactical intentional delay process claim of on the improper or insufficient. gent, or otherwise had not shown a text or sole basis that the defendant anything in Brand —in its Nor does prosecutor to part motive on the of the use purport to balance the reason its footnotes — delay advantage, tactical and we did delay against to the the for the not, presence course, evaluating so without even (which, could as it of it defendant prejudice: extent of preju- no already there was concluded test, dice). delay apply “Appellant alleges a denied Brand did not process Brand cannot be said him he lost the testi- and the in because affirmance in inter- rest, alternatively, general mony important on its of an witness to even im when could that a defendant need between in statement footnote below, signifi- inferentially recognizes, it is also majority dicta 4. As discussed in the text 3. As the panel. (and affirmed) subsequent panel bind a Townley does not cant that in we reviewed Dyke, 1445 & n. 28 trial, See Matter following while here we review a conviction of (5 1991); Supply Ships Associates v. th Cir. Nicor pre-trial a dismissal. Motors, Cir. F.2d General matter, 1989). principle a is practical such As a functioning large necessary the effective to (cid:127) multi-panel the Fifth Circuit. court such brought only very an indictment and when it have clearest virtually certain substantial However, trial finally to chose to do so. estab- justify pretrial should such a dismissal. lish a violation of the Due Process Clause view, my high this proof has not standard context, show, appellant must been met here. prejudice flowing only substantial from an begin by I noting right that the here as- inordinate also a motive on the right serted is the to avoid an unfair convic- part prosecutor to use the to tion, right not the to be free of a trial which advantage.... a tactical [citations] likely will be unfair. In United Appellant gov- does not contend that the MacDonald, 435 U.S. sought ernment his indictment for (1978), Supreme advantage, tactical and the district court “[ujnlike Court held that protection af- specifically found that resulted Jeopardy Clause, forded the Double government’s good-faith attempt from the Speedy encompass Trial Clause does not ... appellant’s guilt beyond to ascertain a rea- ‘right not to be tried’ which upheld must be sonable doubt. Since this is abun- prior to if enjoyed trial it is to be at all.” record, dantly supported the dis- The same conclusion applies, fortiori, ruling trict court’s on the motion to dismiss pre-indictment delay.6 claims of (cita- must be affirmed.” Id. at 1299-1300 Court further stated in Mac- omitted; emphasis tions and footnote add- Donald: ed). trial, course, “Before an estimate degree to which impaired has an There is no reasonable basis which adequate specula- defense tends to be Townley can characterized as be. tive.... The essence of a defendant’s treating while the same time Dumin as Sixth Amendment claim in the usual case controlling prece- dicta. Dumin is thus the passage that the of time has frustrated overwhelming weight authority ability dent. The to establish his innocence of the charged. Normally, crime only it is this Circuit is to the same after effect. See note may fairly trial that claim be as- 1, supra, accompanying text. Accord- (em- sessed.” Id. at 98 S.Ct. at 1552 ingly, agree I am majority’s unable.to to the added). phasis application contrary rule.5 Again, fully applies to claims of My second concern is that here the entire The denial of relief before indictment as to Crouch and has been way accused, trial precludes no if convicted, prior dismissed to trial. It successfully seems me that demonstrating passing I note in Fifth does not holdings stand alone in that to sustain a due In his dissent from the Hoo, denial of certiorari in Justice White ob the defen First, Third, Tenth, served that the Circuits, dant must show "not and Eleventh substantial Second, in addition "have simi part prosecu ... but also a motive on the *8 larly required showing prosecutorial a of miscon delay gain advantage.” tor to use the to a tactical designed advantage duct to obtain Sowa, a tactical over Durnin at United States v. imper the defendant or to advance some other (7th Cir.1994), F.3d stated, the Seventh Circuit purpose missible to establish a due order States, process violation.” Hoo v. United "To that a establish vio- (1988) U.S. process, lated due [defendant] Sowa must (White, J., certiorari). dissenting from denial of prove that the caused actual and sub- Justice White identified the Fourth and Ninth prejudice rights, stantial to his fair trial applying as test. Id. Circuits showing government there must be a that the delayed advantage indictment to a tactical statutes of limitation have been held not Even impermissible or some other reason.... right to create a not to be tried. See United require- Sowa’s ... claim fails to meet the Weiss, (2d Cir.1993). 7 F.3d 1088 Al- prong.... process ments of the second [D]ue though pre-trial dismissals on limitations only implicated government purposely is if the uncommon, grounds are that is because the delayed advantage, the indictment to take tacti- appears date of the offense on the face of the cally, prejudice one; of the or otherwise acted in question purely legal and the is a bad faith." the reasons for the in indictment and The Second Circuit stated prejudicial generally the same rule in Unit whether it is irrelevant are Hoo, (2d Cir.1987), ed States v. 825 F.2d to the limitations issue. Townley knew that he that well improper pre-indietment “been undue machine sold or could not deliver the Owens unfairly prejudiced substantially and Id. could not be successful.” that the scheme Thus in that result. ability avoid to his preju- found no such at 583. We substantial Marion, 404 v. States United however, dice, “the main because thrust (1971), the trial, case,” presented as at government’s pretrial dismiss- reversed Supreme Court misrepresentations [particular] “concerned but observed pre-indietment al for Townley ma- in the sale of the made “[ejvents may demonstrate of the trial Townley claimed Id. also chines.” present appellees’ time prejudice, at adequately being unable to corroborate pre- speculative and are process claims that, testimony as soon as he discovered MacDonald, at See also mature.” fraud, protect to he took action Owens’ (“The denial of a 98 S.Ct. at rejected on the this based investors. We on an indictment government to dismiss at trial: trial motion approach taken that a grounds does not indicate to cor- speedy trial counsel was unable “Insofar as (after Townley’s testimony that roborate after trial —when made like motion fraud) he had he had discovered Owens’ also be de- gauged can be better —would financing company ap- to informed nied.”). for credit prove applications further me, realities, dictate the it seems These government ex- investor-purchasers, stronger showing should a far conclusion dispute Town- pressly it would not stated claim due to sustain a by argument be required ley’s testimony, and neither attempt than would it doubt delay prior to trial nor evidence did cast pre-indictment by Townley act this creditable I trial and required after conviction. be whose upon his two customer-witnesses bears out. So experience believe that testimony to corroborate him. tended aware, reported I am there far as made full disclosure of further sustaining such a decision appellate federal Townley’s attorney him in its files to aid dismissal, by a divid a 1976 decision pretrial Id. at preparation of the defense.” Eighth United Circuit. panel ed omitted).8 (citation 585-86 Barket, 530 F.2d 189 instructive decision of Another ours Lovasco.7 decisions since are no such There McGough, 510 respect is United States v. speaks volumes. This silence (5th Cir.1975). There, we reversed F.2d 598 pretrial order based on a due dismissal example compelling Townley provides pre-indietment We substantial strong pretrial how a claim as follows: described the may ultimately dissolve the con- “McGough’sassertion of actual There, itself. actual trial text primarily upon the to his is based defense Townley partner and his Owens defendant potential defense wit- death of some six mail fraud in connection charged with were witnesses, Some these nesses. purchase and invest inducing persons to with claimed, McGough would have testified Townley, vending machines. in nonexistent knowledge of to firsthand several Townley that due at 582. claimed gov- transactions which entered into unable to he was under- ernment’s calculation of the amount really machines show that he believed the stated; might im- of others a valuable produced be and would be peach [T]he witnesses.... purchasers. We conclud- investment hearings government asserted *9 requisite substantial ed that the expected to be it had two of them witnesses, “had thrust of would have been shown than ment rather witnesses presented at trial the defense.” Id. at 604. government’s case” as Lovasco, 783, Barket, panel 431 U.S. Shortly another versed. United after divided 2044, 97 S.Ct. 52 again pretrial Eighth sustained indict- of three counts four-count dismissal not We observed that the did even delay process, on a due ment a witness would use but available” “who "had Lovasco, (8th 532 F.2d 59 basis. Townley’s exculpatory testi- have cast doubt on mony.” However, Court re- at 586. Id. defense, pretrial, Although frequently that we could “find no which we observed will be position in a much better weighed court know of or the trial indication “replacement” unearth such defensive evi- contradictory stat- factual assertions before dence, every diligently has incentive not to prejudice,” id. at ing that there was actual trial, look for or come forward with it. At 604, did not remand for fur- we nevertheless however, precisely is oppo- incentive findings respect, in that but rather or- ther Then, if produced, site. the evidence is not case is remanded for a dered that “the can we have much more confidence that it respect In prompt trial.” Id. at 605. could not have been. Marion, 325, quoted 404 U.S. at 92 S.Ct. at “ may way 466: ‘Events of trial demonstrate actu- There is no to know that this case will Townley. stage, any be At this prejudice, present appel- at the time claim al that Crouch and will be be- speculative claims are convicted lees’ cause of pre-in- substantial premature.’” Id. at 604-5. it is here. So delay purely speculative. dictment is For also, e.g., Whitley, Robinson v. F.3d See — example, delay Crouch claims that de- (5th 562, Cir.1993), denied, cert. prived father, him testimony of the of his -, 1197, 127 L.Ed.2d 546 who died in having June the indictment (1994);9 Rice, United States v. 550 F.2d n been returned November and of (5th Cir.), denied, 1364, 1369 cert. Tranquillo Gubert, September who died 54 L.Ed.2d 312 S.Ct. 1988, both former directors of Savings Delta (1994).10 Association. But Crouch does not claim that claim of Evaluation of a due either of anything these individuals knew delay only after trial not benefits transactions, charged only they (to say knowledge nothing from sure of how have, Gerjes, testified that Delta’s whether) case, government proved president, charge was in of Delta and often knowledge but also from of what the defense misled the board and Crouch. Such testimo- that, produce. able to It is settled is ny only is of attenuated relevance to the sustain a claim of substantial based transactions, charged and there is no show- witnesses, on lost evidence or the defendant ing that other board members were avail- must show that “the information ... could supply Larry able to this evidence.11 As to Tsehearner, not otherwise be obtained from other an officer of another involved Beszborn, entity, unspecified who died at an sources.” United States v. F.3d time before — indictment, the return U.S.-, of the the claim that impeached expected govern- he could (1994) (re have Gerjes Ferguson ment witnesses is versing pretrial pro dismissal based on plainly speculative basis on which to find pre-indictment delay). cess claim of See also prejudice pretrial. Royals, United States v. 777 F.2d (“[DJefendant Cir.1985) has failed to Frye’s respecting claim “Profit the lost show that such evidence not have oth Participation Agreement” could is deficient be- obtained.”). pro erwise been the due Where cause there is no that it contained helpful, cess claim of ruled on material evidence not reflected in the Robinson, petitioner (pretrial) the habeas claimed that had allowed the him, post-indictment delay prejudiced procure him be- evidence witnesses, having acquired cause he lost two died and that at “[n]o trial such later evidence locatable, longer against any the other no who "would have was ever offered of the defendants.” Rice, presented corroborated the 'alibi' he at trial.” 550 F.2d at 1369. claim, rejected stating, "By We the trial's 11.Furthermore, claiming pre-indict- a defendant end, however, prosecution managed preju- must show that claimed many blow so holes in Robinson's alibi that the portion dice is attributable to that effect their would have had would Scott, that is undue. Walters v. Cf. be to have Robinson's alibi from an transformed (5th Cir.1994) (evidence 688-89 lost before Robinson, incredibly just tall tale to a tall one.” delay). became excessive not lost due to excessive Here, 2 F.3d at 571. that, there is no basis for *10 Rice, rejecting pre-indict- In in a time Gubert's death in 10. claim, observed, concerning delay. the defendant’s had become undue Cir., April thereof, (Opinion tends which likewise “Memorandum” 480) 1995, 51 F.3d Ferguson with Frye’s intent to work to show original As to the developing the land. 14, 1995 June form, Frye claims notice waiver of BY THE COURT: necessary prove there was no original is in active service A member of the Court presupposes forgery. But this suggestion for having requested poll a on the that there was a evidence produce ment will majority rehearing and a en banc 18 of the to count forgery. This relates having in favor judges in service voted active indictment, alleged false statements which banc, rehearing granting a en application, a loan in connection with Delta It is §§ 1014 and 2.12 contrary to 18 U.S.C. shall be IT ORDERED that this cause IS on count 18 can be a conviction apparent that argu- by with oral reheard the Court en banc a di- reference to whether without obtained fixed. The ment on a date hereafter to be held, and, actually fur- meeting rectors’ specify briefing for the will schedule Clerk ther, the minutes were or not that whether filing supplemental briefs. not a whether or forged not establish does meeting was held.13 directors’ view, simply insufficient my there requisite de- with the to establish

evidence certainty trial is held Crouch gree that if a friends, BUSER, Jr., next John E. con- and Frye will be convicted and Virginia BUSER, E. and John substantial, actual have suffered nection will Plaintiff-Appellant, any prejudice from undue Moreover, ap- it respectfully I dissent. be taken en that this case should

pears to me INDEPENDENT CORPUS CHRISTI SCHOOL, Defendant-Appellee. banc. KING, POLITZ, Judge, Before Chief No. 94-60055. HIGGINBOTHAM, GARWOOD, JOLLY, Appeals, United Court of DUHÉ, JONES, SMITH, DAVIS, Fifth Circuit. BARKSDALE, WIENER, EMILIO M. April DeMOSS, BENAVIDES, GARZA, PARKER, Judges. and STEWART Rehearing Rehearing Suggestion for May En Banc Denied REHEARING PETITION FOR AND ON FOR REHEARING SUGGESTION

EN BANC represent part the intent of defendant MICHAEL J. presently of count 18 is as 12. The relevant corporation that he and his be held FRYE follows: debt, repayment when the liable state- said false and fraudulent “C. The then and there well knew that de- defendants appli- purported ments were contained nomi- fendant MICHAEL J. FRYE was a mere loan in the name of defendant cation for the borrower who believed himself and his nee corporation, J.M.G. Fi- MICHAEL J. FRYE's liability company to have no actual on the accompanying pur- Corporation, and nancial Additionally, corporate minutes note. meeting ported of the directors of minutes of meeting were false in that no such directors' authorizing corporation' de- the defendant's actually was held.” purchase DELTA REO on behalf of fendant to corporation, de- and were intended Moreover, there was no evidence that included in the loan file of the fendant to be perform expert unable to had tried and been sham, to enable the nominee loan in order copy. handwriting analysis on the There was making 'cash the loan in connection with a transaction, nonexpert special FBI avoid loans to one for trash' agent may handwriting "there be some anal- avoid detection copies, limitations and to ysis people borrower our that will work with but regulatory people laboratory prefer originals." examiners of DELTA officials our copies, they he the nature of the nominee loan. When asked if would work with it, application corporate I don't know minutes said “I don't know. I doubt D. The they materially they purported to for sure. I don't think would.” were false in that