dissenting:
I respectfully dissent.
The judgment of the majority, condemning as “clearly erroneous” the District Court’s findings of actual prejudice attributable to four and one-half years of unjustifiable pre-indictment delay on the part of *681the prosecution is to me perplexing if, indeed, not wholly inexplicable. I cannot fairly envision, in the absence of intentional prosecutorial delay taken for purposes of securing tactical advantages, a more compelling case for the trial judge to conclude that the defendants cannot be afforded, as they must, their preeminent due process right to a fair trial.
I do, however, express my agreement, in the beginning, with the majority’s preliminary holding that the District Court, in considering the pre-trial motion for dismissal, appropriately “engaged in the type of ‘delicate judgment based on all of the circumstances’ of the case as prescribed by Marion.” Supra at 678. Pre-indictment delays, of course, have always generated particularly sensitive judicial problems requiring careful accommodations between the public’s interest in effective law enforcement and the constitutionally protected interest of an accused in the fairness and reliability of the judicial process. See Woody v. United States, 125 U.S.App.D.C. 192, 370 F.2d 214, 218 (1966) (separate opinion of McGowan, J.). The appropriate contours of pre-indictment delay doctrine, further etched by the thorough opinion of the majority, have, however, only recently begun to emerge. In a superb discussion, I think, and in the face of conflicting precedents, my Brother Barnes interprets United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), to require the defendant to prove “actual prejudice,” but not to require further proof of intentional prosecutorial gamesmanship in crafting delay. I agree that the Due Process Clause does not, generally speaking, depend upon intentional governmental misconduct in order for its fair trial guarantees to become operative. Moreover, I do not dispute the majority’s proposition that the law does not warrant an exception to this principle in the pre-indictment context. Ultimately, in light of the important countervailing interest in effective law enforcement, I think none could be fairly dissatisfied with the majority’s holding that even when a defendant has demonstrated “actual prejudice” due to an inordinate pre-accusation delay, dismissal is nonetheless inappropriate if the Government can justify the delay.1 I would emphasize, however, that insofar as we accommodate the Government in these matters, it must bear the proximate risks of harm sparked by any delay for which it, itself, is responsible.
As my Brothers readily affirm, there is absolutely no question in this case that the delay was inordinate and in fact attributable to the gross negligence of the Government. After an Assistant United States Attorney initially concluded that there was insufficient evidence to warrant prosecution, approximately three years were allowed to elapse before any further investigation or prosecution was significantly pursued. Indeed, in the whole catalogue of the American law, I daresay that there are few, if any, instances of culpable delays more egregious than the four and one-half years documented in this case. The intolerable length of the delay and the high degree of government culpability are, without doubt, appropriate factors for the trial judge to consider when assaying whether demonstrable prejudice justifies dismissal. Accordingly, as I view the facts here presented, the trial judge’s “delicate judgment” to dismiss the selective counts of the indictments simply cannot be upset if the record reflects any demonstrated prejudice attributable to the delay. The majority contends, as of course it must, that the record is barren in this respect. If my Brothers are wrong as to this, then I think it not disrespectful to suggest that they have unintentionally abused the appellate function.
The supposed infertility of the record depends entirely upon the gloss that the majority places upon the words “actual prejudice”; and it is the majority’s discussion of the “actual prejudice” requirement that constitutes the gravamen of my protest.
*682My Brothers strain to the uttermost limits in arguing that the death or dimmed memories of potential defense witnesses does not actually prejudice a defendant unless he can demonstrate the extent to which these witnesses would have testified, respectively, had they lived or had their memories remained unobscured., The obvious question, as the majority recognizes, is in what manner can a defendant show that particular witnesses, no longer available or laboring under stale memories, could enhance his defense if the government had proceeded through the indictment judiciously? See Ross v. United States, 121 U.S. App.D.C. 233,349 F.2d 210, 215 (1965) (“In a very real sense, the extent to which he was prejudiced is evidenced by the difficulty he encountered in establishing with particularity the elements of that prejudice.''); cf. United States v. Wahrer, 319 F.Supp. 585, 588 (D.Alaska 1970). The obvious answer, in the overwhelming number of cases is, I should think, that the burden of summoning affidavits from buried bodies or dimmed minds will be insurmountable.
The practical impossibility of meeting a burden, I concede, does not suggest necessarily that the burden is erroneously defined. But I am, nonetheless, wholly convinced that the majority's conception of actual prejudice is, in this case especially, mistaken.2 The question for the trial judge should not be whether the record, viewed in light of the independently proved potential testimony of now deceased witnesses, indicates that the defendant is either guilty or innocent as charged. Rather, the inquiry should be whether that determination can be made, ultimately, in a forum wherein the judge has confidence that the pertinent transactions can be reconstructed accurately. To illustrate, in United States v. Wilson, 357 F.Supp. 619 (E.D.Pa.1973), appeal dismissed, 492 F.2d 1345 (3d Cir. 1973) reversed and appeal reinstated, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1974), the defendant was charged with embezzling funds from a labor organization of which he was the business manager. The manner in which the funds allegedly were converted was by way of a check signed by two officers of the union. Both officers had since died, one during a period of unjustifiable pre-indictment delay. Although the Government presented evidence that the now deceased co-signers of the check were controlled by the defendant, the court refused to evaluate the contested veracity of the potential testimony of the deceased witness. The court concluded: “Although the government contends that this is only a showing of potential or speculative prejudice, there is an absolute certainty as a signer of all checks that . . . [the witness] would add testimony of utmost importance to the trial.” Id. at 621. See also United States v. Haulman, 288 F.Supp. 775, 778-79 (E.D.Mich.1968).
The principle to be emphasized, as extrapolated from the Wilson example, is that whether or not missing or deceased witnesses (coupled or not coupled with dimmed memories of available witnesses) translates into “actual prejudice” to the defense depends on the materiality of their connection to the crucial events which must be reconstructed at trial. The critical inquiry should not be whether independent evidence demonstrates that the missing witness intended to exculpate the defendant and how, but rather whether the witness had a material basis upon which to provide significantly exculpatory information.3
*683Thus, in United States v. Lovasco, 532 F.2d 59 (8th Cir. 1976), cert. granted, 429 U.S. 844, 97 S.Ct. 233, 50 L.Ed.2d 164, 1976, a case presenting a due process claim far less compelling than the one we face here,4 the defendant had been charged with three counts of unlawful possession of handguns stolen from the mails and a fourth count of engaging in the business of dealing in firearms without a license. The defendant testified that a named individual, then deceased, sold him some of the firearms in question, and that this individual, were he available, would testify that he (the defendant) did not know that the firearms had been stolen from the mails. No showing was made that the missing witness actually would have testified on behalf of the defendant. Nevertheless, the court affirmed the District Court’s dismissal of the first three counts because the missing witness had a material connection to the subject transactions whereby the defendant acquired the guns. The court, however, reversed the dismissal of the fourth count because it related to a transaction in which the missing witness was not a participant. Id. at 61-62.
Similarly, in United States v. Barket, 530 F.2d 189 (8th Cir. 1976), the defendant was charged with making an unlawful political contribution and with the misapplication of bank funds. The court affirmed the indictment’s dismissal because “[wjitnesses who might have been able to demonstrate that the transaction was in fact intended as a bona fide loan or to disprove the alleged political contribution aspect of the loan transaction are now dead or unable to recall circumstances that existed more than five years ago.” Id. at 196. Compare United States v. Quinn, 540 F.2d 357 (8th Cir. 1976) (distinguishing Barket and Lovasco and reversing the dismissal of an indictment because the missing informant clearly had no basis for providing information material to the defense);5 United States v. Hauff, 395 *684F.2d 555, 556 (7th Cir. 1968). See also United States v. Dukow, 453 F.2d 1328, 1330 (3d Cir. 1972) (deceased witnesses possessed no “special knowledge” of the transaction in question).
Agreeing with the basic fairness of the Eighth Circuit’s view, I would evaluate the present appeal in terms of whether or not the trial court clearly erred in finding that the deceased witnesses were critical participants in the transactions upon which the dismissed counts were based. If these witnesses were critical participants, then, indubitably, they had a firm basis upon which to provide information material to the accurate reconstruction of the events leading to the belated indictments; thus, the unavailability of their testimony would unfairly impair the ability of the defendants to defend against the charges. And once more, I emphasize, as did, apparently, the District Court, the inexcusable responsibility of the prosecution for the prejudicial delay.
I respectfully submit, therefore, that this case fairly shrieks of “actual prejudice.” The record demonstrates that Herrick and Fleming, who died while the prosecution dallied, and Stanley, who died eight months after the indictments were returned, were directly involved in the preparation of perhaps every critical document filed with the Southland National Bank (“SNB”) by the nominees of Mays and Coltrane. Indeed, Herrick, who was Secretary-Treasurer and a director of American West Nursing Center, Inc. (“AWNC”) and who was in charge of the syndication of its real estate, reportedly assisted investors in AWNC to obtain their loans from SNB and further suffered the primary responsibility for preparing each and every document necessary to perfect the transactions. Moreover, as even the majority is forced to point out, “the record is replete with examples of the witnesses’ incapacity to remember aspects of key transactions.6 Supra at 680 (emphasis supplied). Compare United States v. Naftalin, 534 F.2d 770, 773 (8th Cir. 1976) (memories of witnesses not crucial because of existence of recorded statements). Although dimmed memories may not constitute “actual prejudice” under the weight of precedent, United States v. Clardy, 540 F.2d 439, 441-42 (9th Cir. 1976), nonetheless, dimmed memories may indeed “tip the balance” in otherwise close cases, United States v. Quinn, supra, 540 F.2d at 362, which this one is not.
The District Court did not clearly err in determining that the defendants’ claims of prejudice were not speculative. In fact, I would have thought that a holding to the contrary would have been clearly erroneous. There is an absolute certainty that the deceased witnesses and the witnesses whose memories have dimmed in material respects would have been able to contribute trial testimony of utmost importance had it not been for the four and one-half years of pre-indictment delay for which the defendants were in no way responsible.7 The Government did not, and obviously could not, prove that the testimony, if available, would not have been of critical importance *685to the defense.8 Compare United States v. Joyce, 499 F.2d 9, 20 (7th Cir. 1974) cert. denied, 419 U.S. 1031, 95 S.Ct. 512, 42 L.Ed.2d 306 (1974).
The evident prejudice suffered by the appellees leads me ineluctably to one final, troublesome point: The ultimate outcome of this case upon remand is, it seems to me, foreordained. Assuming, as I do, that the Government will prosecute on the counts reinstated by the majority, and that the evidence will add little to that revealed by the carefully conducted pre-trial inquiry, there can be little doubt but that the District Court must again dismiss the same counts on pre-indictment delay grounds at the close of trial. My Brothers concede that this must be done if the prejudice that I already see is shown during the trial. As a result, our Nation’s taxpayers will have financed a useless six months trial in a court that is already heavily burdened. This will again give rise to ancient complaints of “the law’s delay.” And, unfortunately, it was the Government that here engendered this enormously expensive and troublesome process by failing to execute its prosecutorial duties with the diligence which our people have every conceivable right to expect, and with which the appellees, whether my Brothers like it or not, had a constitutional right to demand. It is anomalous, even curious, in the circumstances here, that the majority so painstakingly assaults the meticulous and logical findings9 of the District Court, findings that are supported by substantial, irrefutable evidence. Of more concern to me, however, is this patent, although isolated, example of remarkable inefficiency in the legal process.10
I would AFFIRM.
. An important consideration is that the negative power of the Government to withhold prosecution for tactical reasons is perhaps of greater potential harm than the affirmative power to prosecute because, comparatively, it is much less protected against abuse. See United States v. Quinn, 540 F.2d 357, 364 (8 Cir. 1976, Heany, J., dissenting).
. I do not mean to imply that the majority’s treatment of the actual prejudice requirement is unprecedented. See, e, g., Judge Henley’s dissents in United States v. Lovasco and United States v. Barket, infra; United States v. Dabney, 393 F.Supp. 529, 536 (E.D.Pa.1975).
. The majority speculates that the loss of witnesses may prejudice the prosecution just as much as it may prejudice the defense because the prosecution bears the burden of proof beyond a reasonable doubt. Supra at 677 n, 12. This conjectural theory has no legal persuasion whatsoever. The fact that the Government, by its own hand, may have suffered actual prejudice does not whitewash the fact that the defense has been similarly harmed.
Indeed, the majority may have misunderstood the constitutional logic of its own test, The Due Process Clause functions to protect the reliability of judicial proceedings wherein “facts” are established. Marlon rightly teaches *683that the Due Process Clause tolerates the erosion of reliability, as caused by pre-accusation delay, if the Government cannot be fairly condemned as precipitating the delay. When, however, the Government must shoulder responsibility, due process — at least in my view — protects an accused if he can show that the delay has proximately impaired his ability to reconstruct events material to his defense. The fact that the prosecution’s ability to reconstruct pertinent events is simultaneously impaired does not mitigate the potential capriciousness of the trial outcome — it enhances it. And, I submit, this is especially true when the deceased witnesses were intimately involved in the alleged unlawful activities, unless, for example, the Government can prove, without doubt, that the witnesses would have incriminated the defendants had they been able to testify. E. g., United States v. Bornstein, 447 F.2d 742, 745 (7th Cir. 1971).
In United States v. Feinberg, 383 F.2d 60, 65 (2d Cir. 1967), the court wrote:
“Though prejudice is not to be presumed, it may well be that pre-arrest delay may impair the capacity of the accused to prepare his defense, and, if so, such impairment may raise a due process claim under the Fifth Amendment . . .. Such a claim may arise if a key defense witness or valuable evidence is lost . . , if the defendant is unable credibly to reconstruct the events of the day of the offense . . . , or if the personal recollections of the government or defense witnesses are impaired . , because if any of these events occur the reliability of the proceedings for the purpose of determining guilt becomes suspect.” (Emphasis supplied; citations omitted.)
. In Lovasco, the prosecution delayed only seventeen months while here the Government tarried four and one-half years. Furthermore, there was not an “absolute certainty” in Lovasco that the accused in fact acquired the guns from the missing potential witness since only the accused testified to that fact; indeed, the Government had theorized that the guns had come from the accused’s son, who worked at the post office. 532 F.2d at 61. In the instant case, on the other hand, the special connection that the three missing witnesses, who prepared all of the critical documents, had with the transactions upon which the indictment’s dismissed counts were founded was proved beyond any reasonable doubt whatsoever. In terms of length of delay and prejudice convincingly demonstrated, this case, when viewed in toto, greatly overshadows the facts set forth in Lovasco and the due process claim therein vindicated.
. I note that Judge Heaney, dissenting in United States v. Quinn, supra argues that federal courts have inherent power divorced from the Due Process Clause to dismiss indictments on grounds of pre-indictment delay. 540 F.2d at 363-64. I share his concern that the hands of our district judges should not be unreasonably tied, particularly in their attempts to deal with inexcusable governmental delay in the pre-ar*684rest phase of criminal proceedings. See K. Davis, Discretionary Justice: A Preliminary Inquiry, 209-14(1969); see generally Note, The Right to a Speedy Trial, 20 Stan.L.Rev. 476, 489 (1968).
. Consequently, the credibility of these witnesses would obviously be vulnerable to severe attack during the course of trial. See United States v. Jones, 173 U.S.App.D.C. 280, 524 F.2d 834, 844 n. 1 (1975).
. The majority attempts to shift some of the blame onto the appellees, who, it is said, had “notice” of the possibility of criminal indictments. Supra at 679 n. 17. I do not subscribe to the “duty to mitigate” implicitly placed upon the defendants here. The defendants had no reason to anticipate the Government’s negligence and the attendant proximate risks of prejudice. 1 know of no rule in a case of this kind calling for the application of some bizarre type of comparative negligence principle. Moreover, whatever “notice” these defendants might have had in 1969-72, they were arguably “lulled to sleep” by the subsequent years in which the Government let the files collect dust due to its lack of interest in the case. Is the majority suggesting that the appellees had either the duty or the power to initiate speedy proceedings before a grand jury and procure indictments against themselves?
. While it is true that there is some evidence that Herrick would have testified as a government witness, the District Court was not impressed, and the majority suggests no reason why it necessarily should have been. It has generally been our rule, at least when judgments of conviction are challenged, that the resolution of questions of credibility is a function of the trial court. Moreover, even if Herrick were going to testify for the Government, in that event the availability of Stanley and especially Fleming would have been all the more vital to the defense. Given the breadth of those of the indictment’s dismissed counts, there is little question in my mind that the defendants cannot fairly defend against the charges given the critical participation of the dead and forgetting witnesses in the transactions upon which these counts are forged. Thus, this case does not resemble United States v. Sand, 541 F.2d 1370 (9th Cir. 1976), wherein this Court affirmed, as not clearly erroneous, a specific finding that missing witnesses would not have exculpated the defendant at the expense of self-incrimination.
. It is important to emphasize that the district judge, with highly conscientious care, as evidenced by the comprehensive and detailed findings of facts and conclusions of law, scrutinized each of the numerous counts of the indictments in order to determine whether the deceased witnesses had a basis upon which to provide exculpatory information. Only selected counts of the indictments were dismissed. Thus, this case differs materially from those like United States v. McGough, 510 F.2d 598 (5th Cir. 1975), wherein the District Court made no findings of fact and seemingly viewed prejudice as inherent in the delay. See also United States v. Butts, 524 F.2d 975 (5th Cir. 1975).
. I cannot believe that the majority intends to convey a feeling of general hostility in respect to pre -trial dismissals, or motions for such, on grounds of pre-indictment delay. In any event, it seems to me that this type of motion is particularly well-suited for in limine disposition, promoting, as it does, the expeditious and less expensive process of litigation.