(dissenting).
I dissent for two reasons. First, I believe that the district court erred in refusing to give, in substance at least, the requested identification instructions. In Salley v. United States, 122 U.S.App.D.C. 359, 353 F.2d 897 (1965), the court reversed the conviction of a defendant charged with a narcotics violation. One of the issues was whether the defendant was the perpetrator of the offense. The principal ground for reversal was the failure of the trial court to give an in*116struction on identification. There the court said:
The widespread police practice of utilizing undercover agents and informers to infiltrate the narcotics underworld is effective and necessary. But it creates added danger that the innocent may be convicted. * * *
Often the only chance a defendant has to defend himself without accusing the officer of total fabrication is to raise in the jury’s mind a reasonable doubt as to whether the defendant was, in fact, the seller. A requested instruction specifically bringing this defense of mistaken identity to the jury’s attention in a narcotics case must be given. The trial judge was not obligated to give the charge in exactly the words requested by defense counsel. He was obligated to instruct the jury that if there was a reasonable doubt as to the identification of the defendant as the person who made the sale, then the jury should acquit. 353 F.2d at 898, 899.
I believe that the Salley decision lays down the correct rule of law. And contrary to the view of the majority, I think the respective factual situations in Salley and this case are sufficiently analogous to render the two cases legally indistinguishable. Moreover, this court in United States v. Dichiarinte, 385 F.2d 333 (7th Cir. 1967), inferentially recognized the need for an instruction of the kind that was refused in the instant case.
The Government attempts to excuse the district court’s failure to instruct specifically on the identification issue by arguing in its brief:
Having challenged only the identification evidence, defendant’s strategy left but two arguments open to the parties: mistaken identity and credibility. While defendant proceeded to argue the mistaken identity theory over the course of nineteen transcript pages, the Government not only referred to both theories during its closing argument, but also devoted the greater part of its reply to the theory of identification, concluding its discussion with the statement: “We rely upon these trained investigators that their identification of the defendant is clear and positive. * * * ”
In my opinion, summation of counsel at the close of the evidence, however explicit or prolonged, may not substitute for proper instructions to the jury by the court. The proposition advanced by the Government, carried to its logical conclusion, might be expanded so that if final argument by counsel were sufficiently pervasive, no instructions by the court would be needed at all.
The second reason for my dissent centers on the district court’s failure to conduct a hearing on the defendant’s motion to dismiss the indictment because of the delay in his arrest. The district court, prior to the trial, summarily denied the motion after refusing to conduct an evi-dentiary hearing, saying:
First, the delay in indicting the defendant; and I don’t think that the Ross case applies to the facts in this case, and I don’t think that there was any prejudice by the delay that occurred here, and I also question the Ross case; and so, on all those grounds, that motion is denied * * the motion to dismiss is denied. * *
The majority excuses the district court’s failure to conduct a hearing on this issue by saying, “We do not agree that the Trial Judge abused his discretion in waiting to appraise the reasonableness of the delay in the light of what would be disclosed at and after the trial.” The motion to dismiss was renewed • at the close of the trial, but the record fails to disclose that the district judge received any additional facts at that time.1
*117Although I do not believe that it was necessary to conduct an evidentiary hearing and to dispose of the defendant’s motion to dismiss the indictment on the ground of prejudicial delay in bringing the charge prior to trial, I think that such a pre-trial hearing would be the most expeditious and desirable course to follow. A pre-trial hearing would eliminate the possibility of mingling other evidence with the evidence of delay, as occurred in this ease. Such a procedure would allow the district court to focus on the delay issue alone. In addition, a pretrial hearing, if the allegations of delay were proved, would eliminate the necessity of conducting a trial.
In United States v. Deloney, 389 F.2d 324, 325 (7th Cir. 1968), this court, after referring to our previous decision in United States v. Panczko, 367 F.2d 737, 738 (7th Cir. 1966), cert. denied, 385 U. S. 1009, 87 S.Ct. 716, 17 L.Ed.2d 546 (1967), in which we held that “the government is entitled to a reasonable time in which to investigate a case * * * and prepare it for prosecution, limited only by the statute of limitations,”2 stated:
We think we should concede that it is possible to conceive of a delay less than the period of the Statute of Limitations that would be so unreasonable and the prejudice to defendant so great, that relief under the Fifth Amendment should be afforded.
Thus in Deloney we recognized the constitutional principle, as delineated in Nickens v. United States, 116 U.S.App. D.C. 338, 323 F.2d 808, 810 (1963), and confirmed in Ross v. United States, 349 F.2d 210, 211 (D.C. Cir. 1965), that “due process may be denied when a formal charge is delayed for an unreasonably oppressive and unjustifiable time after the offense to the prejudice of the accused.” Although the ratio decidendi in Deloney is somewhat obscure, we did say, referring to Ross and its progeny in the District of Columbia Circuit:
We think we can distill from these decisions the rule that before that Court will dismiss an indictment because of pre-indictment delay, an accused must show he has been prejudiced by the delay. Then, the burden is on the Government to show the delay was the result of a valid police purpose. 389 F.2d at 325.
The question of a separate hearing on the issue of delay was not raised in the briefs in Deloney nor did this court sua sponte direct that a hearing be conducted. In Ross as well as in several cognate decisions, e. g., Woody v. United States, 125 U.S.App.D.C. 192, 370 F.2d 214 (1966); Lee v. United States, 368 F.2d 834 (D.C. Cir. 1966); and Godfrey v. United States, 123 U.S.App.D.C. 219, 358 F.2d 850 (1966), the cases were remanded to the district court for a hearing on the reasonableness and effect of the pre-indictment delay. I believe that a similar remand should be ordered in the instant case.
I would reverse and remand for a hearing on the motion to dismiss and, depending on the result of that hearing, a new trial.
. The record shows the following statement by the district judge with reference to the post-trial motions:
I have looked over the post-trial motions. It seems to me that all that the defendant has done in the post-trial motions is to raise the same issues that were previously argued and passed upon. I find nothing new in any of the post-trial motions that hasn’t already been argued.
On that basis, the post-trial motions are denied.
. Although I concurred in the opinion in United States v. Panczko, upon further reflection, I believe that our decision there was too restrictive. Panczko failed to leave open the possibility that due process may prevent measuring the timeliness of bringing charges against an accused by reference solely to the applicable statute of limitations.