dissenting:
I respectfully dissent.
My first concern is that the majority departs from the overwhelming weight of precedent in this Circuit by holding that, where limitations have not run, a defendant may nevertheless prevail on a due process claim of pre-indictment delay even though the government did not intentionally delay the indictment to gain tactical advantage or for other impermissible purpose, and the delay arose only because of the lack of manpower and the low priority assigned the investigation. A less than exhaustive review of this Court’s published opinions since United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977), reflects that at least twenty-nine different judges of this Court — twenty-five of the thirty-two individuals who have ever served as an active or senior judge of this Court since it split October 1, 1981 — have authored, or joined without reservation, unanimous opinions in some eighteen different eases holding or stating in substance that “[t]o prove that pre-indictment delay violated his due process rights, a defendant must demonstrate that the prosecutor intentionally delayed the indictment to gain a tactical advantage and that the defendant incurred substantial prejudice as a result of the delay.” United States v. Byrd, 31 F.3d 1329, 1339 (5th Cir.1994).1
Citing our acknowledged rule that “one panel may not overrule the decision, right or wrong, of a prior panel in the absence of en banc reconsideration or superseding decision of the Supreme Court,”2 the majority justi-*486fíes its departure from the foregoing mass of Fifth Circuit precedent by reliance on United States v. Brand, 556 F.2d 1312 (5th Cir.1977), cert. denied, 434 U.S. 1063, 98 S.Ct. 1237, 55 L.Ed.2d 763 (1978), and United States v. Townley, 665 F.2d 579 (5th Cir.), cert. denied, 456 U.S. 1010, 102 S.Ct. 2305, 73 L.Ed.2d 1307 (1982). Laying aside the thought that we may have had the functional equivalent of en banc establishment of the rule most recently stated and applied in Byrd, it is in any event clear to me that Brand and Townley cannot bear the weight assigned them.
As to Brand, its statements that intentional delay for tactical advantage need not be shown and that instead the reasons for the delay should be balanced against the resulting prejudice, 556 F.2d at 1317 n. 7, are plainly dicta.3 Brand rejected the defendant’s pre-indictment delay claim because he had not demonstrated any prejudice — an admitted requirement for relief irrespective of the reasons for the delay. Id. at 1316-1317. At the end of the prejudice discussion in the text — which never even adverts to whether a further showing beyond prejudice is required — footnote 7 is called for. It is only in this footnote that the language relied on by the majority appears. However, by this stage the Brand court had already determined to deny relief because of the absence of prejudice. Moreover, nothing in footnote 7 of Brand — or in its text — identifies the reason for the delay or purports to characterize the reason as either being or not being intentional for tactical advantage, or negligent, or otherwise improper or insufficient. Nor does anything in Brand — in its text or its footnotes — purport to balance the reason for the delay against the prejudice to the defendant (which, of course, it could not, as it had already concluded there was no prejudice). Brand did not apply a balancing test, and the affirmance in Brand cannot be said to rest, even alternatively, on its general statement in footnote 7 that a defendant need not show intentional tactical delay by the prosecution. Thus, Brand’s footnote 7 forms no part of its ratio decidendi, and is purely dicta.
Townley — a quorum decision by two judges — may well be a holding rather than simply dicta. In Townley we concluded that there was no evidence that the delay was due to “bad faith motive to prejudice” the defendant. 665 F.2d at 581. Under the rationale of Byrd and its predecessors, that alone would have justified affirmance, even though we concluded that “the lengthy pre-indictment delay somewhat prejudiced Townley.” Id. at 586. However, we proceeded to actually balance the extent of the prejudice against the reasons for the delay, stating that such a balancing could show a due process violation from pre-indictment delay even though there was no “intentional tactical delay or harassment on the part of the government.” Id. at 582. We ultimately concluded that the way the trial actually unfolded, and particularly the way the government sought to prove its case, was such that the prejudice to Townley was not sufficiently substantial, when balanced against the reasons for the delay (“the press of other investigations ... low-priority accorded to the present investigations and ... changes of governmental prosecuting personnel,” id. at 581), as to amount to a denial of due process.4
Assuming, then, that Townley is holding, not dicta, it is nevertheless not binding because it conflicts with our earlier holding in United States v. Durnin, 632 F.2d 1297 (5th Cir.1980). In Dumin, we rejected a due process claim of pre-indictment delay on the sole basis that the defendant had not shown a motive on the part of the prosecutor to use the delay for tactical advantage, and we did so without even evaluating the presence or extent of prejudice:
“Appellant alleges that the delay denied him due process because he lost the testimony of an important witness in the interim between when the government could *487have brought an indictment and when it finally chose to do so. However, to establish a violation of the Due Process Clause in this context, appellant must show, not only substantial prejudice flowing from an inordinate delay, but also a motive on the part of the prosecutor to use the delay to gain a tactical advantage.... [citations] Appellant does not contend that the government sought to delay his indictment for tactical advantage, and the district court specifically found that the delay resulted from the government’s good-faith attempt to ascertain appellant’s guilt beyond a reasonable doubt. Since this finding is abundantly supported by the record, the district court’s ruling on the motion to dismiss must be affirmed.” Id. at 1299-1300 (citations and footnote omitted; emphasis added).
There is no reasonable basis upon which Townley can be. characterized as holding while at the same time treating Dumin as dicta. Dumin is thus the controlling precedent. The overwhelming weight of authority in this Circuit is to the same effect. See note 1, supra, and accompanying text. Accordingly, I am unable.to agree to the majority’s application of a contrary rule.5
My second concern is that here the entire indictment as to Crouch and Frye has been dismissed prior to trial. It seems to me that only the very clearest showing of virtually certain substantial actual trial prejudice should justify such a pretrial dismissal. In my view, this high standard of proof has not been met here.
I begin by noting that the right here asserted is the right to avoid an unfair conviction, not the right to be free of a trial which will likely be unfair. In United States v. MacDonald, 435 U.S. 850, 860, 98 S.Ct. 1547, 1553, 56 L.Ed.2d 18 (1978), the Supreme Court held that “[ujnlike the protection afforded by the Double Jeopardy Clause, the Speedy Trial Clause does not ... encompass a ‘right not to be tried’ which must be upheld prior to trial if it is to be enjoyed at all.” The same conclusion applies, a fortiori, to due process claims of pre-indictment delay.6 The Supreme Court further stated in MacDonald:
“Before trial, of course, an estimate of the degree to which delay has impaired an adequate defense tends to be speculative.... The essence of a defendant’s Sixth Amendment claim in the usual case is that the passage of time has frustrated his ability to establish his innocence of the crime charged. Normally, it is only after trial that that claim may fairly be assessed.” Id. at 858, 98 S.Ct. at 1552 (emphasis added).
Again, this fully applies to claims of pre-indictment delay. The denial of relief before trial in no way precludes the accused, if convicted, from successfully demonstrating *488that the undue and improper pre-indietment delay substantially and unfairly prejudiced his ability to avoid that result. Thus in United States v. Marion, 404 U.S. 307, 325, 92 S.Ct. 455, 466, 30 L.Ed.2d 468 (1971), the Supreme Court reversed the pretrial dismissal for pre-indietment delay, but observed that “[ejvents of the trial may demonstrate actual prejudice, but at the present time appellees’ due process claims are speculative and premature.” See also MacDonald, 435 U.S. at 858, 98 S.Ct. at 1552 (“The denial of a pretrial motion to dismiss an indictment on speedy trial grounds does not indicate that a like motion made after trial — when prejudice can better be gauged — would also be denied.”).
These realities, it seems to me, dictate the conclusion that a far stronger showing should be required to sustain a claim of due process pre-indictment delay prior to trial than would be required after trial and conviction. I believe that experience bears this out. So far as I am aware, there is only one reported federal appellate decision sustaining such a pretrial dismissal, a 1976 decision by a divided panel of the Eighth Circuit. United States v. Barket, 530 F.2d 189 (8th Cir.1976). There are no such decisions since Lovasco.7 This silence speaks volumes.
Townley provides a compelling example of how a strong pretrial showing of substantial prejudice may ultimately dissolve in the context of the actual trial itself. There, the defendant Townley and his partner Owens were charged with mail fraud in connection with inducing persons to purchase and invest in nonexistent vending machines. Townley, 665 F.2d at 582. Townley claimed that due to pre-indictment delay he was unable to show that he really believed the machines would be produced and would be a valuable investment for the purchasers. We concluded that the requisite substantial prejudice would have been shown “had the thrust of the government’s case” as presented at trial “been that Townley well knew that he and Owens could not deliver the machine sold or that the scheme could not be successful.” Id. at 583. We found no such substantial prejudice, however, because “the main thrust of the government’s case,” as presented at trial, “concerned [particular] misrepresentations made by Townley in the sale of the machines.” Id. Townley also claimed prejudice from being unable to adequately corroborate his testimony that, as soon as he discovered Owens’ fraud, he took action to protect the investors. We rejected this based on the approach taken by the government at trial:
“Insofar as counsel was unable to corroborate Townley’s testimony that (after he had discovered Owens’ fraud) he had informed the financing company not to approve any further applications for credit by investor-purchasers, the government expressly stated it would not dispute Town-ley’s testimony, and neither by argument nor evidence did it attempt to cast doubt upon this creditable act by Townley or upon his two customer-witnesses whose testimony tended to corroborate him. The government further made full disclosure of its files to Townley’s attorney to aid him in the preparation of the defense.” Id. at 585-86 (citation omitted).8
Another instructive decision of ours in this respect is United States v. McGough, 510 F.2d 598 (5th Cir.1975). There, we reversed a pretrial dismissal order based on a due process claim of pre-indietment delay. We described the claim as follows:
“McGough’s assertion of actual prejudice to his defense is based primarily upon the death of some six potential defense witnesses. Some of these witnesses, McGough claimed, would have testified as to firsthand knowledge of several of the transactions which entered into the government’s calculation of the amount understated; the testimony of others might impeach government witnesses.... [T]he government asserted at the hearings that it had expected two of them to be government witnesses, rather than witnesses for the defense.” Id. at 604.
*489Although we observed that we could “find no indication that the trial court weighed the contradictory factual assertions before stating that there was actual prejudice,” id. at 604, we nevertheless did not remand for further findings in that respect, but rather ordered that “the case is remanded for a prompt trial.” Id. at 605. In this respect we quoted Marion, 404 U.S. at 325, 92 S.Ct. at 466: “ ‘Events of trial may demonstrate actual prejudice, but at the present time appel-lees’ due process claims are speculative and premature.’” Id. at 604-5. So it is here. See also, e.g., Robinson v. Whitley, 2 F.3d 562, 571 (5th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 1197, 127 L.Ed.2d 546 (1994);9 United States v. Rice, 550 F.2d 1364, 1369 (5th Cir.), cert. denied, 434 U.S. 954, 98 S.Ct. 478, 479, 54 L.Ed.2d 312 (1994).10
Evaluation of a due process claim of pre-indictment delay after trial not only benefits from sure knowledge of how (to say nothing of whether) the government proved its case, but also from knowledge of what the defense is able to produce. It is settled that, to sustain a claim of substantial prejudice based on lost evidence or witnesses, the defendant must show that “the information ... could not otherwise be obtained from other sources.” United States v. Beszborn, 21 F.3d 62, 67 (5th Cir.), cert. denied, — U.S.-, 115 S.Ct. 330, 130 L.Ed.2d 288 (1994) (reversing pretrial dismissal based on due process claim of pre-indictment delay). See also United States v. Royals, 777 F.2d 1089, 1090 (5th Cir.1985) (“[DJefendant has failed to show that such evidence could not have otherwise been obtained.”). Where the due process claim of pre-indictment delay is ruled on pretrial, the defense, which frequently will be in a much better position to know of or unearth such “replacement” defensive evidence, has every incentive not to diligently look for or come forward with it. At trial, however, the incentive is precisely the opposite. Then, if the evidence is not produced, we can have much more confidence that it could not have been.
There is no way to know that this case will not be a Townley. At this stage, any claim that Crouch and Frye will be convicted because of substantial prejudice from pre-in-dictment delay is purely speculative. For example, Crouch claims that the delay deprived him of the testimony of his father, who died in June 1992, the indictment having ■been returned in November 1992, and of Tranquillo Gubert, who died in September 1988, both former directors of Delta Savings Association. But Crouch does not claim that either of these individuals knew anything of the charged transactions, only that they would have, testified that Gerjes, Delta’s president, was in charge of Delta and often misled the board and Crouch. Such testimony is of only attenuated relevance to the charged transactions, and there is no showing that other board members were not available to supply this evidence.11 As to Larry Tsehearner, an officer of another involved entity, who died at an unspecified time before the return of the indictment, the claim that he could have impeached expected government witnesses Gerjes and Ferguson is plainly a speculative basis on which to find prejudice pretrial.
Frye’s claim respecting the lost “Profit Participation Agreement” is deficient because there is no showing that it contained helpful, material evidence not reflected in the *490“Memorandum” thereof, which likewise tends to show Frye’s intent to work with Ferguson in developing the land. As to the original waiver of notice form, Frye claims that the original is necessary to prove there was no forgery. But this presupposes the government will produce evidence that there was a forgery. This relates to count 18 of the indictment, which alleged false statements to Delta in connection with a loan application, contrary to 18 U.S.C. §§ 1014 and 2.12 It is apparent that a conviction on count 18 can be obtained without reference to whether a directors’ meeting was actually held, and, further, that whether or not the minutes were forged does not establish whether or not a directors’ meeting was held.13
In my view, there is simply insufficient evidence to establish with the requisite degree of certainty that if a trial is held Crouch and Frye will be convicted and in that connection will have suffered substantial, actual prejudice from any undue delay.
I respectfully dissent. Moreover, it appears to me that this case should be taken en banc.
Before POLITZ, Chief Judge, KING, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHÉ, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES, STEWART and PARKER, Circuit Judges.. Other post-Lovasco published opinions of this Court so holding or stating include: United States v. Neal, 27 F.3d 1035, 1041 (5th Cir.1994), cert. denied, -U.S. -, 115 S.Ct. 1165, 130 L.Ed.2d 1120 (1995); United States v. Beszborn, 21 F.3d 62, 65-66 (5th Cir.), cert. denied,-U.S. -, 115 S.Ct. 330, 130 L.Ed.2d 288 (1994); United States v. Hooten, 933 F.2d 293, 296 (5th Cir.1991); Dickerson v. Guste, 932 F.2d 1142, 1144 (5th Cir.), cert. denied, 502 U.S. 875, 112 S.Ct. 214, 116 L.Ed.2d 172 (1991); United States v. Delano, 912 F.2d 766, 769 (5th Cir.1990); United States v. Varca, 896 F.2d 900, 904 (5th Cir.), cert. denied, 498 U.S. 878, 111 S.Ct. 209, 112 L.Ed.2d 170 (1990); United States v. Carlock, 806 F.2d 535, 549 (5th Cir.1986), cert. denied, 480 U.S. 949, 107 S.Ct. 1611, 94 L.Ed.2d 796 (1987); United States v. Johnson, 802 F.2d 833, 835, 836 (5th Cir.1986); United States v. Scott, 795 F.2d 1245, 1249 (5th Cir.1986); United States v. Ballard, 779 F.2d 287, 293 (5th Cir.), cert. denied, 475 U.S. 1109, 106 S.Ct. 1518, 89 L.Ed.2d 916 (1986); United States v. Amuny, 767 F.2d 1113, 1119-1120 (5th Cir.1985); United States v. Wehling, 676 F.2d 1053, 1059 (5th Cir. 1982); United States v. Hendricks, 661 F.2d 38, 39-40 (5th Cir.1981); United States v. Nixon, 634 F.2d 306, 310 (5th Cir.1981); United States v. Durnin, 632 F.2d 1297, 1299-1300 (5th Cir.1980); United States v. Ramos, 586 F.2d 1078, 1079 (5th Cir.1978); United States v. Willis, 583 F.2d 203, 207 (5th Cir.1978).
. Burlington Northern Railroad Co. v. Brotherhood of Maintenance of Way Employees, 961 F.2d 86, 89 (5th Cir.1992), cert. denied,-U.S.-, 113 S.Ct. 1028, 122 L.Ed.2d 173 (1993) (citations omitted).
. As the majority inferentially recognizes, dicta by one panel does not bind a subsequent panel. See Matter of Dyke, 943 F.2d 1435, 1445 & n. 28 (5 th Cir.1991); Nicor Supply Ships Associates v. General Motors, 876 F.2d 501, 506 (5th Cir.1989). As a practical matter, such a principle is necessary to the effective functioning of a large multi-panel court such as the Fifth Circuit. •
. As discussed in the text below, it is also significant that in Townley we reviewed (and affirmed) a conviction following trial, while here we review a pre-trial dismissal.
. I note in passing that the Fifth Circuit does not stand alone in its holdings that to sustain a due process claim of pre-indictment delay the defendant must show "not only substantial prejudice ... but also a motive on the part of the prosecutor to use the delay to gain a tactical advantage.” Durnin at 1299. In United States v. Sowa, 34 F.3d 447, 450 (7th Cir.1994), the Seventh Circuit stated,
"To establish that a pre-indictment delay violated due process, [defendant] Sowa must prove that the delay caused actual and substantial prejudice to his fair trial rights, and there must be a showing that the government delayed indictment to gain a tactical advantage or some other impermissible reason.... Sowa’s claim ... fails to meet the requirements of the second prong.... [D]ue process is only implicated if the government purposely delayed the indictment to take advantage, tactically, of the prejudice or otherwise acted in bad faith."
The Second Circuit stated the same rule in United States v. Hoo, 825 F.2d 667, 671 (2d Cir.1987), cert. denied, 484 U.S. 1035, 108 S.Ct. 742, 98 L.Ed.2d 777 (1988). In his dissent from the denial of certiorari in Hoo, Justice White observed that the First, Third, Tenth, and Eleventh Circuits, in addition to the Second, "have similarly required a showing of prosecutorial misconduct designed to obtain a tactical advantage over the defendant or to advance some other impermissible purpose in order to establish a due process violation.” Hoo v. United States, 484 U.S. 1035, 108 S.Ct. 742, 98 L.Ed.2d 777 (1988) (White, J., dissenting from denial of certiorari). Justice White identified the Fourth and Ninth Circuits as applying a balancing test. Id.
. Even statutes of limitation have been held not to create a right not to be tried. See United States v. Weiss, 7 F.3d 1088 (2d Cir.1993). Although pre-trial dismissals on limitations grounds are not uncommon, that is because the date of the offense appears on the face of the indictment and the question is a purely legal one; the reasons for the delay in indictment and whether it is prejudicial are generally irrelevant to the limitations issue.
. Shortly after Barket, another divided panel of the Eighth Circuit again sustained the pretrial dismissal of three counts of a four-count indictment on a due process, pre-indictment delay basis. United States v. Lovasco, 532 F.2d 59 (8th Cir.1976). However, the Supreme Court reversed. United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977).
. We even observed that the government did not use but "had available” a witness “who would have cast doubt on Townley’s exculpatory testimony.” Id. at 586.
. In Robinson, the habeas petitioner claimed that the post-indictment delay prejudiced him because he lost two witnesses, one having died and the other no longer locatable, who "would have corroborated the 'alibi' he presented at trial.” We rejected this claim, stating, "By the trial's end, however, the prosecution had managed to blow so many holes in Robinson's alibi that the only effect their testimony would have had would be to have transformed Robinson's alibi from an incredibly tall tale to just a tall one.” Robinson, 2 F.3d at 571.
. In Rice, in rejecting a pre-indictment delay claim, we observed, concerning the defendant’s claim (pretrial) that the delay had allowed the government to procure evidence against him, that at trial “[n]o such later acquired evidence was ever offered against any of the defendants.” Rice, 550 F.2d at 1369.
.Furthermore, a defendant claiming pre-indictment delay must show that any claimed prejudice is attributable to that portion of the delay that is undue. Cf. Walters v. Scott, 21 F.3d 683, 688-89 (5th Cir.1994) (evidence lost before delay became excessive not lost due to excessive delay). Here, there is no basis for finding that, at the time of Gubert's death in 1988, the pre-indictment delay had become undue delay.
. The presently relevant part of count 18 is as follows:
“C. The said false and fraudulent statements were contained in the purported application for the loan in the name of defendant MICHAEL J. FRYE's corporation, J.M.G. Financial Corporation, and accompanying purported minutes of a meeting of the directors of the defendant's corporation' authorizing the defendant to purchase DELTA REO on behalf of the corporation, and were intended by the defendant to be included in the loan file of the sham, nominee loan in order to enable the making of the loan in connection with a 'cash for trash' transaction, to avoid loans to one borrower limitations and to avoid detection by DELTA officials and regulatory examiners of the nature of the nominee loan.
D. The application and corporate minutes were materially false in that they purported to represent the intent of defendant MICHAEL J. FRYE that he and his corporation be held liable for repayment of the debt, when the defendants then and there well knew that defendant MICHAEL J. FRYE was a mere nominee borrower who believed himself and his company to have no actual liability on the note. Additionally, the corporate minutes were false in that no such directors' meeting actually was held.”
. Moreover, there was no evidence that any expert had tried and been unable to perform a handwriting analysis on the copy. There was only the testimony of a nonexpert FBI special agent that "there may be some handwriting analysis people that will work with copies, but our people in our laboratory prefer originals." When asked if they would work with copies, he said “I don't know. I doubt it, but I don't know for sure. I don't think they would.”