(dissenting).
I agree with the majority that the fourth count of the indictment against the defendant should be reinstated. I respectfully dissent from the view of the majority that the order of the district court should be affirmed to the extent that it dismissed the first three counts of the indictment.
With respect to those counts, my view is that the action of the district court in dismissing the first three counts in advance of trial on the theory that the defendant suffered prejudice as a result of an unreasonable preindictment delay on the part of the government was clearly erroneous. In my opinion the district court at most should have done no more than reserve ruling on the motion and let the case proceed to trial. Had the defendant been acquitted, the question of preindictment delay would not have survived; had he been convicted the question might well have been presented in clearer focus post trial than that in which it was presented in advance of trial and on the defendant’s motion to dismiss.
Very recently in United States v. Barket, 530 F.2d 189 (8th Cir. 1976), a majority of a panel of this court affirmed an order of the United States District Court for the Western District of Missouri dismissing for preindictment delay an indictment returned in 1974 charging that in 1970 the defendant, a bank official, unlawfully made a contribution of bank funds to a political campaign and that in so doing he misapplied the funds of the bank. The indictment in that case was returned within the applicable statutory period of limitations which at that time was five years.
As a member of the panel, I dissented in that case and filed an opinion setting out my general views as to the proper application to individual cases of the general rule laid down in United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). I see no occasion to restate those views here except to repeat and emphasize my opinion that the fifth amendment protection against preindictment or preprosecution delays is not coextensive with the “speedy trial” protection accorded by the sixth amendment, and again call attention to the fact that the subject of a criminal investigation has no constitutional right to immediate prosecution or arrest. See 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.
Here, as in Barket, there is no evidence that the delay of the government in obtaining the indictment against the defendant, which delay the district court found was unreasonable, was motivated by any sinister desire on the part of the investigating officers or the United States Attorney to gain tactical advantage over the defendant by means of the delay or to prejudice him in his defense. Nor is there any evidence of any detrimental reliance by the defendant on the fact that although a statement was taken from the defendant in September, *631973 and a report to the United States Attorney was made by postal authorities in October of that year, defendant was not indicted until March, 1975.
Further, the delay involved in this case was much shorter than the delay involved in Barket, and the offense for which the defendant was ultimately indicted arguably may be considered as more serious and involving more moral turpitude than the offenses charged against Mr. Barket. -
Apart from those considerations, I think that the district court’s finding that the defendant sustained substantial prejudice as the result of the death of Tom Stewart was purely speculative and for that reason was clearly erroneous.
The record and the briefs disclose that the indictment was returned on March. 6, 1975; on March 18, 1975 defendant filed his motion to dismiss; and a hearing was held on the motion on April 25, 1975. In his brief counsel for defendant states that his client testified that Stewart had died about six months prior to the hearing. If so, Stewart had ceased to be a source of danger to the defendant, if he ever was, when the motion was filed. Nevertheless, no mention of Stewart or his “lost testimony” is made in the motion, and there is no allegation of specific prejudice in the motion except the assertion that the defendant had suffered “anxiety and concern” since his statement had been taken in 1973. The name of Stewart seems to have come up for the first time when the defendant testified in support of his motion. In the circumstances, one may suspect that the claim of prejudice based on the death of Stewart was nothing but a fabrication, and that had Stewart been alive the defendant could just as well have relied on the recent death of any other of his acquaintances, claiming that he had innocently acquired the pistols from that acquaintance.
Defendant made no specific showing as to what he would have proved by Stewart had the latter been available, and in fact defendant made no showing that Stewart would have taken the stand in defendant’s behalf had Stewart been alive and subject to subpoena.
Had Stewart taken the stand and undertaken to exculpate the defendant, he doubtless would have been required to explain his own connection, if any, with the pistols in question, and that connection may well have been highly culpable. The defendant could not have compelled Stewart to incriminate himself, and it is unrealistic to believe that Stewart would have done so voluntarily simply to aid or accommodate the defendant.
If the defendant had been put to trial, it would have been open to him to contend before the jury that he had acquired the pistols from Stewart without any guilty knowledge and to urge upon the jury the fact that Stewart’s death had deprived defendant of the benefit of Stewart’s testimony. As it is, the defendant simply goes free without trial.
When a district judge sustains in advance of trial a motion to dismiss an indictment because of prejudicial pre-indictment delay, he takes a stringent measure. And if such a motion is improvidently granted, it adversely affects the public interest in the enforcement of the criminal law, and it also encourages the filing of meritless motions, similarly based, by other defendants. The dismissing of indictments on account of the government’s delay in obtaining them is not an acceptable solution to the problem of crowded criminal calendars, and in my opinion motions such as that of the defendant should not be granted in advance of trial except in clear cases.