(dissenting).
In disagreeing with the majority I express no opinion as to whether the defendant should have been prosecuted at any time or as to whether if he had been called upon to stand trial he would have been convicted on either or both counts of the indictment. My point of difference with the majority is that I do not consider that the due process clause of the fifth amendment either required or justified the dismissal of the indictment by the district court.
The purpose of the due process clause is not to punish administrative officials of the government charged with the enforcement of the criminal laws of the United States for administrative derelictions of duty, or for inconsistencies in administrative decisions, or for inefficiency. Nor is its purpose to assure persons suspected of crime of immediate or particularly prompt arrest and prosecution, or to protect such persons from the anxieties and uncertainties that normally accompany one’s being aware that he is the subject of a criminal investigation and may be the subject of a criminal prosecution. Its purpose, in present context, is to assure a defendant in a criminal case of a fair trial when prosecuted on a charge of crime.
That the question presented here is a constitutional one has been expressly recognized by the majority.
The explicit right of a defendant to a “speedy trial” guaranteed by the sixth amendment does not extend to pre-ar-rest or pre-indictment delays in prosecution. However, pre-prosecution delays may amount to violations of the rights of defendants to due process of law under the fifth amendment. United States v. Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). This court had come to the same conclusion in pre-Marion cases including United States v. Golden, 436 F.2d 941 (8th Cir.), cert. denied, 404 U.S. 910, 92 S.Ct. 236, 30 L.Ed.2d 183 (1971); and Terlikowski v. United States, 379 F.2d 501 (8th Cir. 1967). And the problem has been considered by us in the post-Marion cases of United States v. Jackson, 504 F.2d 337 (8th Cir. 1974), cert. denied, 420 U.S. 964, 95 S.Ct. 1356, 43 L.Ed.2d 442 (1975); United States v. Norton, 504 F.2d 342 (8th Cir. 1974), cert. denied, 419 U.S. 1113, 95 S.Ct. 790, 42 L.Ed.2d 811 (1975); United States v. Washington, 504 F.2d 346 (8th Cir. 1974); and United States v. Houp, 462 F.2d 1338 (8th Cir.), cert. denied, 409 U.S. 1011, 93 S.Ct. 456, 34 L.Ed.2d 305 (1972).
Obviously, any delay, whether it be in the initiation of a prosecution or whether it be in bringing a defendant to trial after he has been arrested or indicted, can result in prejudice. Inevitably, with the passage of time witnesses die, disappear, or become unavailable and memories of past events fade. At times the delay operates to the advantage of the prosecution; at other times, and perhaps more often, it operates to the advantage of the defendant. Barker v. Wingo, 407 U.S. 514, 521, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); United States v. Marion, supra, 404 U.S. at 321-22, 92 S.Ct. 455.
While the sixth amendment guarantees a defendant a speedy trial after proceedings against him have been commenced, as far as pre-prosecution delay is concerned a defendant must normally look for protection to the applicable statute of limitations. United States v. Marion, supra, 404 U.S. at 322 and 326, 92 S.Ct. 455; United States v. Houp, supra, 462 F.2d at 1338; cf. United States v. Ewell, 383 U.S. 116, 122, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966).
In Barker v. Wingo, supra, a sixth amendment case, the Supreme Court held that where a defendant claims that he has been denied his constitutional right to a speedy trial, the court called *198upon to decide the question must do so by balancing the reasons for the delay against the actual prejudice that the defendant has suffered on account of it, and the Court listed a number of factors that should be taken into consideration. 407 U.S. at 530-33, 92 S.Ct. 2182. A similar approach has been taken with respect to claims of pre-prosecution delay arising under the fifth amendment. United States v. Jackson; United States v. Norton; United States v. Washington, all supra.1
The cases heretofore cited, and others, clearly establish that before a defendant is entitled to have an indictment against him dismissed for delay whether pre-prosecution or post-prosecution, he must establish actual prejudice to his defense resulting from the delay. However, he must also show that the delay was unreasonable. Whether a given delay is unreasonable depends not only upon the length of the delay but also upon other factors including the reason for it. And in United States v. Marion, supra, relief was denied to the defendant who had shown neither that the government had acted in bad faith in delaying the prosecution nor that he had sustained any prejudice as a result of the delay. 404 U.S. at 325-26, 92 S.Ct. 455.
While in Marion, Jackson, Norton, Washington, Houp, Golden and Terlikow-ski, all supra, the possibility that pre-prosecution delay may involve a denial of due process was recognized, it is to be observed that in none of those cases was it found that the delay in question had in fact amounted to such a denial. And I am unable to find a denial of due process in the instant case.
The district court found in part that the defendant was denied due process because the government was guilty of “culpable negligence” and because the delay in the return of the indictment had prejudiced the defendant. The majority of this court concludes that those findings were not clearly erroneous and affirms the action of the district court. As indicated, I disagree.
I am troubled by the finding of prejudice. It seems that the district court may have merely assumed the truth of Barket’s allegations that six possible witnesses who are now dead would have materially aided the defense. No satisfactory showing was made as to the substance of their testimony or as to whether other similar evidence was available or indeed as to when the decedents died.
But prejudice conceded, my position in a case of this kind is that pre-prosecution delay does not amount to a denial of due process absent a showing of bad faith or improper motive on the part of the government in delaying the prosecution, or a showing of detrimental reliance by a putative defendant on the initial decision of the government not to prosecute. I see neither of those things in this case.
There is no suggestion here that officials in the Department of Justice or the United States Attorney intentionally delayed the institution of the proceedings against the defendant for the purpose of prejudicing his defense or of gaining a tactical advantage over him. It seems that in 1972 the government after having lost some cases similar to this one decided not to prosecute a number of other cases, including that of the defendant, and that later the United States Attorney came into possession of what appeared to him to be evidence justifying prosecution and the Department changed its mind as far as the defendant was concerned. I see nothing invidious in this change of position, and the defendant certainly had no vested right in *199the original decision not to prosecute.2 There is nothing unusual or sinister about a prosecutive agency changing its mind about a particular prosecution with the change being based on a new legal theory or newly discovered evidence.
Nor is there anything in this record to indicate that the defendant changed his position in any way in reliance upon the initial determination of the Department not to proceed against him criminally, if, indeed, the defendant knew of that determination.
In view of the size of the Department of Justice and the complexity of its organization and operations, and in view of the public interest in having the criminal laws enforced irrespective of the dilatoriness or inefficiency of the prosecutive bureaucracy, I have a great deal of trouble in finding that the government attorneys handling this matter were guilty of negligence regardless of whether or not that term is preceded by the adjective or epithet “culpable.”
But even assuming that the Department and the United States Attorney were to some extent negligent in not indicting the defendant prior to 1974 and that in the meantime some of his prospective witnesses died or forgot important facts and details, I do not think that the due process clause of the fifth amendment called for a dismissal of the indictment.
I would reverse and remand for trial.
. It is to be remembered, however, that the fifth amendment protection against pre-prose-cution delay has not been held to be coextensive with the protection of the sixth amendment against post-indictment delay. The situation of one who has been arrested and held to answer simply does not compare with that of one who has not yet risked restraint of liberty or official accusation. United States v. Marion, supra, at 321, 92 S.Ct. 455.
. Cf. Hoffa v. United States, 385 U.S. 293, 310, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966), cited with approval in United States v. Marion, supra, 404 U.S. at 325, 92 S.Ct. 455, n. 18, for the proposition that there is no constitutional right to be arrested.