dissenting.
I respectfully dissent. The Court today approves a preindictment delay considerably longer (fifty-nine months and three weeks) than that at issue in any other of our previous decisions failing to find prejudice, despite the district court’s finding that the delay was designed to gain tactical advantage over Bartlett, and this Court’s admission that the government’s delay was not motivated by an appropriate governmental interest, and despite the district court’s finding of substantial prejudice — a finding which the majority fails to find clearly erroneous as required by well established case law. United States v. Barket, 530 F.2d 189, 193 (8th Cir.). This is not a case where the government needed additional time to complete its investigation, United States v. Lovasco, 431 U.S. 783, 796, 97 S.Ct. 2044, 2051, 52 L.Ed.2d 752 (1977), or a case where the defendant argues that the government was required to file a charge as soon as probable cause existed, id. at 791, 97 S.Ct. at 2049, or at least as soon as the government had sufficient evidence to prove guilt beyond a reasonable doubt. Id. Instead, within one year of Bartlett’s state conviction, the government was fully aware that the state conviction was void, and it had all the evidence against Bartlett it needed and no reason to delay bringing federal charges against him. As the district judge aptly stated, “[Bartlett] was allowed to sit imprisoned for five years on charges the United States always considered to be void.” The government’s conduct is outrageous and without justification. And this Court's difficulty in finding an appropriate governmental interest in the government's decision to delay indicting Bartlett reveals that the government’s conduct was not in good faith. Now, Bartlett, despite serving six years in prison, after his ten-year sentence for rape, is back to square one and must face charges which, under any fair view of the law, should have been brought long ago.
I am also concerned with what I perceive to be the majority’s de novo review of the “substantial prejudice” issue. The district court found the five-year delay created substantial prejudice to Bartlett’s ability to present a defense because at least three material witnesses are now unavailable and because Bartlett’s six years in prison have made it difficult for him to prepare an effective defense. These findings must be *1295affirmed unless “clearly erroneous.” Barket, 530 F.2d at 193. The majority avoids this standard by deciding that the district court’s findings are based on an erroneous interpretation of the law. In my view, however, the district court recited and applied the proper legal standard. I would accord greater deference to the district court’s finding that the nearly five-year delay and the disappearance of every witness which Bartlett could have presented in his favor materially disadvantaged his defense — all without justifiable excuse for the government’s inordinate delay.
In my view, the fact that Bartlett pled guilty to now-void state charges arising out of the same incident is not reason for denying him a fair trial. The standard is not whether Bartlett can prove that, were it not for the five-year delay, he would be acquitted — indeed, we have no right to assume that he will be convicted, regardless of what appears to be substantial evidence against him. Instead, the question is whether his defense has been substantially prejudiced by the unreasonable five-year delay during which apparently all of his favorable witnesses have become unavailable. The district court found that it had and no reason is given as to why this Court should disagree.
There is an additional element of this case that troubles me. It seems apparent that the decision to retry Bartlett is based, in large measure, on the personal pique of state and federal prosecutors. They are unhappy with this Court’s decision on the jurisdictional issue and are determined to show us that they will have the last word, even if the defendant’s rights are trampled in the process. We should not cooperate in that effort.