concurring:
I fully concur in the opinion by Judge McWilliams.
Any assertion that the District Court conducted an “evidentiary hearing” on Rad-mall’s motion to dismiss which brings into play the “clearly erroneous” rule upon review of that court’s “findings of fact” is, in my view, without merit.
Judge McWilliams has noted that the trial court granted the motion to dismiss for pre-indictment delay after the jury was impaneled and “before any evidence was offered.” The motion was granted based on oral arguments of counsel, the pleadings and two affidavits attached to the motion, one of which was executed by Radmall and one executed by her counsel.
In my view, the affidavits are both self-serving and conclusory. Neither affiant gave “live” testimony, subject to cross-examination. Thus, there was no way the trial court could assess the credibility of the *551affiants or determine the weight to be given their written statements. Direct, “live” testimony, subject to cross-examination, provides the trial court or the jury, as the case may be, with the only true means of assessing credibility, taking into consideration the general demeanor and appearance of the witness and arriving at meaningful findings of fact on critical issues. United States v. Downen, 496 F.2d 314 (10th Cir. 1974), cert. denied, 419 U.S. 897, 95 S.Ct. 177, 42 L.Ed.2d 142 (1974); United States v. Sierra, 452 F.2d 291 (10th Cir. 1971). Affidavits serve various purposes under court rules. They do not serve as a substitute for direct “in-court” testimony where the burden of establishing cause rests with the movant.
It is fundamental that if a claim is patently frivolous and without merit, on its face, a motion to dismiss should be granted absent an attached affidavit. By the same token, summary judgment may be rendered if the pleadings, affidavits, depositions and other documentary material clearly reveal that there is no genuine issue as to a material fact and the only issue is one of law. These rules do not apply to the case at bar.
In Jackson v. Griffith, 480 F.2d 261 (10th Cir. 1973) the late Chief Judge Orie L. Phillips, writing for this Court, stated that affidavits filed in support of a motion for summary judgment were not a substitute for a trial:
While the rule provides for the filing of affidavits, their sole purpose is to show whether any issue of material fact exists. The rule does not serve as a substitute for a trial and bona fide factual disputes may not be disposed of through the use of affidavits.
480 F.2d at p. 267.
See also: Machinery Center, Inc. v. Anchor National Life Ins. Co., 434 F.2d 1 (10th Cir. 1970); Hanley v. Chrysler Motors Corporation, 433 F.2d 708 (10th Cir. 1970).
In United States v. Revada, 574 F.2d 1047 (10th Cir. 1978), the trial court granted a motion to dismiss the indictment based upon allegations set forth in the motion, an affidavit executed by defendant Revada attached thereto, and a memorandum submitted by defendant’s counsel. The Court entertained oral statements of defendant’s counsel and brief statements by the Government attorney in resistance thereto before granting the motion. This Court reversed and remanded because the trial court’s failure to conduct an evidentiary hearing resulted in a “very meager’’ record. Upon remand the trial court was directed to:
. provide an evidentiary hearing on the existence of actual prejudice to the defense and whether the reasons for the delay were improper under the Marion and Lovasco decisions. See United States v. Stoddart, 574 F.2d 1050 (10th Cir. 1978), filed this day. (Emphasis in original text.)
574 F.2d at p. 1050.
In United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), the Supreme Court reversed a dismissal of an indictment grounded upon a motion of the defendant based on constitutional due process grounds. The remand order concluded:
Events of the trial may demonstrate actual prejudice, but at the present time appellees’ due process claims are speculative and premature.
404 U.S. at p. 326, 92 S.Ct. at p. 466.
The Marion and Lovasco decisions require that a criminal defendant must show actual prejudice and the intent on part of the prosecution to gain an advantage or to harass him with respect to preindictment delay. I believe that it is clear that adequate factual findings on these critical issues can be made only on the basis of testimony at an evidentiary hearing. See: Sherman v. American Federation of Musicians, 588 F.2d 1313 (10th Cir. 1978); United States v. Walker, 524 F.2d 1125 (10th Cir. 1975); Wren v. United States, 352 F.2d 617 (10th Cir. 1965), cert. denied, 384 U.S. 944, 86 S.Ct. 1469, 16 L.Ed.2d 542 (1965); Matthews v. United States, 569 F.2d 941 (5th Cir. 1978); United States v. Dansker, 565 F.2d 1262 (3rd Cir. 1977), cert. dismissed, 434 U.S. 1052, 98 S.Ct. 905, 54 L.Ed.2d 805 (1978); United States v. Crutch, 461 F.2d *5521200 (2nd Cir. 1972), cert. denied, 409 U.S. 883, 93 S.Ct. 172, 34 L.Ed.2d 139 (1972); United States v. Penland, 429 F.2d 9 (9th Cir. 1970). In my judgment, this standard blends with the rule that where there is substantial evidence in the record to support the findings of the trial court, those findings will not be disturbed on appeal. United States for Use and Benefit of Clark Engineering v. Freeto Construction Company, 547 F.2d 537 (10th Cir. 1977).
Claims of deprivation of due process rights require specific showing of identifiable prejudice to the accused affecting his substantial rights. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946); United States v. Ramirez, 524 F.2d 283 (10th Cir. 1975); Fed.R.Crim.P., rule 52(a), 18 U.S.C.A.