OPINION
This appeal is from the dismissal before trial of certain counts in two federal indictments. The trial court ruled that the dismissal was constitutionally required by reason of alleged prejudice to the defendants due to pre-indictment delay of four and one half years between the completion of the acts charged and the return of the indictments by a Federal Grand Jury. The government pursuant to 18 U.S.C. § 3731 appeals the dismissals by the district court of the two indictments, Nos. 74-677 and 74-676.
I. FACTS.
A. SUMMARY OF THE CHARGES.
1. Indictment No. 74-677 includes thirty-two counts consisting of conspiracy (18 U.S.C. § 371), misapplication of bank funds (18 U.S.C. § 656), false entry in a bank statement (18 U.S.C. § 1005), mail fraud (18 U.S.C. § 1341), fraud by wire (18 U.S.C. § 1343), interstate transportation of monies obtained by fraud (18 U.S.C. § 2314), and aiding and abetting (18 U.S.C. § 2). Count 1 alleges a conspiracy between West, who was the Chairman of the Board and majority stockholder of the Southland National Bank (herein “Southland Bank” or “South-land”), and Coltrane and Mays. The primary objectives of the conspiracy were the purchase from West of controlling stock interest in Southland Bank by Coltrane and Mays, using the bank’s own money through a scheme of allegedly fraudulently obtained loans, and a subsequent improper use of Southland Bank funds for the benefit of American West Nursing Centers, Inc. (herein “Nursing Centers”) a corporation formed by Mays and others on March 17, 1969. Coltrane and Mays agreed to buy, but did not have sufficient funds to effectuate the purchase of, West’s stock. It is alleged that they therefore conspired with West in an arrangement whereby West would approve loans to nominees of Coltrane and Mays, the proceeds from which would then be used to buy West’s stock. Pursuant to the scheme, Coltrane and Mays allegedly caused false loan applications to be filed, and West would obtain their approval and record them in Southland Bank’s records. Once in control of Southland Bank, Coltrane and Mays allegedly operated the bank solely for the benefit of themselves and their businesses, and in violation of various banking rules (e. g., exceeding Southland Bank’s legal lending limit; see 12 U.S.C. §§ 21 et seq. and 221 et seq.). Counts 2 through 4 delineate an alleged scheme whereby Coltrane and Mays obtained a $100,000 loan from the Security National Bank of Reno, Nevada, through alleged false representations made via letters delivered by the U.S. postal service and by wire, which caused the above sum to be transported in interstate commerce in violation of statutes against mail fraud (Count 2), fraud by wire (Count 3), and the interstate transportation of
2. Indictment No. 74-676 includes ten counts consisting of conspiracy, misapplication of bank funds and false entries in bank statements. Count 2 charges a conspiracy between Coltrane, Mays and Mathis, the latter being a banker who controlled the Deposit National Bank (herein “Alabama Bank”) in Prichard, Alabama. After Coltrane and Mays obtained majority shares in Southland Bank, they used approximately $500,000 of bank funds to pay off certain debts of their related businesses, principally those of Nursing Centers and Southland Financial Services. To accomplish this, they allegedly caused loan papers to be prepared for six nominees. Said papers were fraudulent because the money was not intended for the individuals named or for the purposes stated therein. The loan papers were sent to the Alabama Bank. Rather than funding the loans to the named persons, Mathis simply drew up a $500,000 certificate of deposit payable to Southland Bank which was entered on its books as an asset. Likewise, Coltrane and Mays caused a similar certificate and loans to be made to the Alabama Bank for Mathis’ benefit. Count 2 of the indictment charges Coltrane and Mays with the misapplication of bank funds. Counts 3 through 10 relate to the falsification of bank records and statements concomitant with the above scheme.
B. HISTORY OF PROSECUTION.
The overt and substantive charges in Indictment No. 74-677 are alleged to have occurred between March 17, 1969 and October 10, 1969. Those in Indictment No. 74-676 are alleged as occurring between October 6, 1969 and November 17, 1969.
A regularly scheduled examination of Southland Bank by the National Bank Examiners (herein “Examiners”) was completed in August 12, 1969 and a report was issued to the United States Comptroller of Currency (herein “Comptroller”) and received by him on September 2, 1969. Certain statements which were ultimately used to frame the charges in Indictment No. 74-677 were contained in that report. A second examination by the Examiners was completed on January 16, 1970 and a report which covered charges contained in both indictments was received by the Comptroller on February 2,1970. An examination of the Alabama Bank by the Examiners was made in November, 1969.
On November 19 and 20, 1969 the Examiners advised the Federal Bureau of Investigation (“FBI”) of certain irregularities and possible fraudulent action in the operations of Southland. On December 10, 1969, the Examiners notified the United States Attorney for the Central District of California (herein “U. S. Attorney”) of some of those improprieties. On January 23, 1970, Assistant U. S. Attorney Tomlinson notified the FBI that prior to the rendition of any “prosecutive” opinion by his office, he desired to receive a copy of the Examiners’ report and a preliminary FBI report. On April 9, 1970, Tomlinson stated that he would decline to prosecute the ease as there did not appear to be sufficient facts to indicate a successful prosecution of the case. On June 12, 1970, the Department of Justice requested a further explanation from the U. S. Attorney’s Office on its refusal to prosecute.
Between July, 1970 and March, 1973, apart from three meetings on the matter, the U. S. Attorney’s Office did not actively pursue the prosecution of the cases. During that same period, the FBI’s involvement was limited to a series of interviews with prospective witnesses which lasted a period of about two months. Between January 23, 1970 and July 10, 1972, no time was spent
On or about March, 1973, the U. S. Attorney’s Office took a more active role in the prosecution of the case. By December 19, 1973, witnesses and evidence were presented to a Federal Grand Jury. The indictments were returned on May 6, 1974.
The defendants were arraigned in both cases on June 3,1974. On June 6, 1974, the cases were consolidated. On October 11, 1974, the district court judge granted the defendants’ motion for discovery and ordered the government to turn over its records as to the prosecution of the cases. Subsequently, the defendants moved to dismiss for pre-indictment delay. On July 30, 1975, the district court issued an order dismissing certain of the counts because of pre-indictment delay.
C. PREJUDICE CLAIMED BY THE DEFENDANTS-APPELLEES.
The defendants asserted that their defense had suffered actual prejudice due to the pre-indictment delay caused by the government. They cited two forms of such prejudice, the deaths of three material witnesses and the dimming of memories of many of the live witnesses.1
D. Herrick and F. Fleming died in the same plane crash in January, 1974. Norman Stanley died in January, 1975. Herrick was Secretary-treasurer of the Nursing Centers and a member of its Board of Directors. He was in charge of the syndications of real estate for Nursing Centers. One of his duties was the preparation of financial statements, loan applications and other documentation necessary for loans from Southland. It was stated that Herrick was the one who assisted investors in Nursing Centers to obtain their loans from Southland. Herrick’s involvement in the above capacities is fairly well documented in the record.2 There was some evidence of the involvement of Coltrane and Mays in this stage of the loan process.3
Both Fleming and Stanley were Herrick’s assistants in those financial aspects. They helped in the preparation of the forms and were also involved in obtaining signatures on the documents.
The defendants also asserted that the memories of many key witnesses had lapsed as to certain material facts and events due to the extended passage of time. Such claim of dimming of memories on the part of the witnesses is supported by the record, i. e., in the testimony of such witnesses to that effect before the Grand Jury and in the FBI interview reports.
D. DISPOSITION BY THE DISTRICT COURT.
The district court found the delay involved to be unreasonable, because it was
The deaths of Herrick, Fleming and Stanley were held to constitute actual prejudice as the evidence demonstrated that the decedents had been directly responsible for and involved in the preparation of the financial statements, loan applications and other documents which were the subject of the various counts in both indictments. The dimming of the memories of the live witnesses on material aspects of the indictments was also noted as contributing to the substantial prejudice caused by the delay.
The judge, upon motion of the defendants, dismissed Counts 1 and 5- through 10 of Indictment No. 74-676 (leaving four standing) and Counts 1, 5 through 23 and 26 through 30 of Indictment No. 74-677 (leaving seven standing) on the grounds that the loss of testimony of the decedent witnesses constituted substantial prejudice to the defendants’ right to a fair trial in violation of the Due Process Clause of the Fifth Amendment.
Counts 2 through 4 of Indictment No. 74-677 were not dismissed as they involved only the Security National Bank of Reno transaction in which the decedent witnesses were not shown to have been participants. Counts 24, 25, 31 and 32 were not dismissed as they related to transactions in which defendants Coltrane and Mays were the principal parties. Count 3 of Indictment No. 74-676 was dismissed as defective. Counts 2, 4, and 9 of said indictment were not dismissed as they concerned certain inter-office activities of Southland Bank and the decedent witnesses were neither officers nor employees of Southland.
As an additional ground for the dismissal of the counts, the judge stated that he was exercising the “duty of the Court to prevent unfairness” due to the “usual and unnecessary” delay caused by the government.
II. ISSUES.
1. Did the district court apply the proper standard in determining whether the pre-indictment delay required dismissal pursuant to the Due Process Clause of the Fifth Amendment?
2. Was there sufficient evidence of actual prejudice to the defendants due to the deaths of the three witnesses and to the “dimming” of the memories of the remaining witnesses to warrant a decision to dismiss the various counts?
III. DISCUSSION.
The initial issue raised on appeal is the standard to be used in determining whether the Due Process Clause of the Fifth Amendment requires dismissal of an indictment before trial on the merits due to the pre-indictment delay caused by the government.4 The Supreme Court has considered the question.
“. . . the Due Process Clause of the Fifth Amendment would require dismissal of the indictment if it were shown at trial that the pre-indictment delay in this case caused substantial prejudice to appellees’ rights to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused.” Id. at 324, 92 S.Ct. at 465.
The Supreme Court went on to hold that the pre-indictment delay had not violated the Due Process Clause because “[n]o actual prejudice to the conduct of the defense is alleged or proved, and there is no showing that the Government intentionally delayed to gain some tactical advantage over appellees or to harass them.” Id. at 325, 92 S.Ct. at 466.
Since the Marion decision, there has been a good deal of confusion as to whether the two elements delineated in the opinion — actual (or substantial) prejudice, and intentional delay by the government for an improper purpose — are to be applied in a conjunctive or disjunctive manner.6 Indeed, as with the other circuits, this Circuit has not been entirely consistent in its articulation of the proper standard.7
“Actual prejudice to the defense of a criminal case may result from the shortest and most necessary delay; and no one suggests that every delay-caused detriment to a defendant’s case should abort a criminal prosecution.” Id. at 324-25, 92 S.Ct. at 465.
Finally, as argued by the government, the dismissal by the trial court of an indictment is an extreme act if it occurs, as it has here, prior to any trial on the merits of the case. It is argued that such a result should only be used upon a demonstration of misconduct by the government. The two cases cited by the Court in Marion after its articulation of the test both involve prosecutorial misbehavior which lends credence to the government’s interpretation here.10
For the disjunctive interpretation, it is initially noted that the test delineated by the Court in Marion was actually a summation of the concession made by the government in that case. As such, it may not represent the bottom line for dismissals based on pre-indictment delays. Secondly, what is involved' here is not a question of the government’s right to present its case but the constitutional rights of the individual defendant. Where the defendant is unable to properly defend himself, and consequently to establish his innocence, because the pre-indictment delay has deprived him of the witnesses and/or evidence necessary for his case, the defendant’s right to Due Process of Law has definitely been jeopardized. Marion, supra, 404 U.S. at 324, 92 S.Ct. 455. Thirdly, to require the defendant to prove, in addition to actual prejudice, a specific bad intent on the part of the government places an extremely difficult burden on a defendant; one which he may not be able to meet without considerable time and expense on his part. Access to the evidence of such intent would be difficult to obtain as it would be largely in the government’s possession. In addition, a tangential issue may arise as to whether some claim of privilege by the government would prevent the defendant from obtaining the necessary evidence.11 Finally, the Court in Marion distinguished between the “real possibility of prejudice inherent in any extended delay” and actual prejudice. Marion, supra, 404 U.S. at 322-326, 92 S.Ct. at 466. The former was held to be adequately covered by the relevant statutes of limitation. The latter was to be protected by the Due Process Clause considerations. • The protection
“However, we need not, and could not now, determine when and in what circumstances actual prejudice resulting from pre-accusation delays requires the dismissal of the prosecution. ... It would be unwise at this juncture to attempt to forecast our decision in such cases.” Id. at 324-325, 92 S.Ct. at 465.
Rather than choose between the Scylla and Charybdis of disjunctive and conjunctive interpretations, it would seem that the key to the Marion opinion is stated in the following quote:
“To accommodate the sound administration of justice to the rights of the defendant to a fair trial will necessarily involve a delicate judgment based on the circumstances of each case.” Id. at 325, 92 S.Ct. at 465.
We reject both the absolute position argued by the appellant (that there must be both actual prejudice and improper intentional delay) and that urged by appellees (that actual prejudice due to pre-indictment delay is enough). We prefer an approach which balances the factors in the individual situation.
Given that a balancing of the “circumstances” is to be made, a decision as to what those “circumstances” are and who will bear the burden of proof naturally arises. In this regard, Marion is mute. However, certainly the main elements suggest themselves.
First of all, there must be some demonstration of actual prejudice resulting from the delay. Such prejudice will inevitably be either the loss of witnesses and/or physical evidence or the impairment of their use, e. g., dimming of the witnesses’ memory. The burden of presenting such prejudice is on the defendant. United States v. Griffin, 464 F.2d 1352, 1354-1355 (9th Cir. 1972), cert. denied, 409 U.S. 1009, 93 S.Ct. 447, 34 L.Ed.2d 302 (1973); United States v. Hauff, 395 F.2d 555, 557 (7th Cir.), cert. denied, 393 U.S. 843, 89 S.Ct. 124, 21 L.Ed.2d 113 (1968). To establish actual prejudice sufficient to warrant a dismissal, the defendant must show not only the loss of the witness and/or evidence but also just demonstrate how that loss is prejudicial to him.12 Marion, supra, 404 U.S. at 326, 92 S.Ct. 455; United States v. McGough, 510 F.2d 598, 604 (5th Cir. 1975). As stated in United States v. Galardi, 476 F.2d 1072, 1075 (9th Cir.), cert. denied, 414 U.S. 839, 94 S.Ct. 90, 38 L.Ed.2d 75 (1973), the latter proof must be definite and not speculative: “The assertion that a missing witness might have been useful does not show the ‘actual prejudice’ required by Marion."
“There is no constitutional right to be arrested. The police are not required to guess at their peril the precise moment at which they have probable cause to arrest a suspect, risking a violation of the Fourth Amendment if they act too soon, and a violation of the Sixth Amendment if they act too soon, and a violation of the Sixth Amendment if they wait too long. Law enforcement officers are under no constitutional duty to call a halt to a criminal investigation the moment they have the minimum evidence to establish probable cause, a quantum of evidence which may fall short of the amount necessary to support a criminal conviction.” (Footnote omitted.)
The courts have traditionally granted the government a good deal of leeway in their decisions as to the timing of arrests and indictments. See United States v. Cowsen, 530 F.2d 734, 737 (7th Cir.), cert. denied, 426 U.S. 906, 96 S.Ct. 2227, 48 L.Ed.2d 831 (1976) — ongoing investigation justified delay; 8B Moore’s Federal Practice 148.03[2] at p. 48-29 (2d ed. 1975). Nevertheless, intentional delays for improper purposes will not be sanctioned. In addition, although weighted less heavily than deliberate delays, negligent conduct can also be considered, since the ultimate responsibility for such circumstances must rest with the government rather than the defendant. United States v. Barket, 530 F.2d 189, 195 (8th Cir. 1976); cf. Barker v. Wingo, 407 U.S. 514, 531, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); United States v. Simmons, 536 F.2d 827, 831 (9th Cir. 1976). Where the defendant has established actual prejudice due to an unusually lengthy government-caused pre-indictment delay, it then becomes incumbent upon the government to provide the court with its reason for the delay.
A final comment concerning the standard to be used has to do with where the fulcrum for the balancing is to be placed. In Marion, the Court states that the presence of actual prejudice resulting from pre-indictment delays would not by itself warrant the dismissal of a criminal prosecution. The greater the length of the delay and the more substantial the actual prejudice to the defendant becomes, the greater the reasonableness and the necessity for the delay will have to be to balance out the prejudice. However, despite the degree of actual prejudice, for a judgment in favor of dismissal, there must be some culpability on the government’s part either in the form of intentional misconduct or negligence.
In considering the present case, the standard employed by the district court below was not clearly erroneous. It is apparent from the court’s findings of fact and conclusions of law that the judge, at least as to the majority of his grounds for granting dismissal,13 engaged in the type of “delicate judgment based on all of the circumstances” of the case as prescribed by Marion,14 While we approve the apparent standard used by the district court, an examination must still be made as to the court’s findings as to the length of the delay, its reasonableness, and the actual prejudice to the defendants.
The length of time between the commission of the last overt act alleged in the indictments (November 1969) and the return of the indictment (May 1974) was approximately four and one half years. There is evidence that the government knew of many of the irregularities and the possibility of criminal violations as early as January, 1970.
However, in addition to labelling the delay “unusual and unnecessary,” the judge implies that the pre-indictment delay was intentional.15 We find such conclusion is clearly erroneous as we find no evidence which would support it. The government’s failure to prosecute in this case was clearly negligent, but only that.
As to the district court’s finding of actual prejudice to the defendants, several problems arise. As stated above, to establish actual prejudice the defendants must show what evidence was lost due to the delay and also the way that evidence would have helped in their defense against the government charges. Basically, the trial judge cited two grounds for his holding that there was actual prejudice in the present case, (1) the loss of the testimony of the decedent witnesses, and (2) the dimming of the memories of the remaining witnesses.
It is adequately demonstrated in the record that Herrick, Fleming and Stanley were directly involved in the preparation of some, and perhaps all,16 of the financial statements, loan applications and other documents filed with the Southland Bank by the nominees of Coltrane and Mays. However, those findings of fact only give a general description of the involvement of those individuals in this case. They do not provide any information as to the deceased parties’ usefulness to defendants’ case. While it is contended by the defendants that the decedent witnesses would have testified that the defendants did not participate in any way with the preparation of the papers and documents for the loan transactions between the individuals associated with Nursing Centers and Southland Bank, there is no evidence to support such contentions other than the affidavits of the defendants themselves, which are, of course, self-serving and based only on speculation.17 Consequently, the first problem raised is the lack of any substantial, convincing evidence to indicate what the testimony of the missing witnesses would be.
Concomitant with the first problem is the question as to how the loss of the decedent witnesses is to be evaluated. Admittedly, the documentary evidence will assume a more important role in the disposition of the case, and if it is shown that the papers are fraudulent, such evidence will weigh more heavily against the defendants without some helpful explanation of their non-involvement with the drafting of the papers. However, because the record only reveals what the subject matter of the de
“Thus, of the thirteen possible witnesses, the non-appearance of at most four is attributable to the delay. Even assuming that all four would have appeared, it is not clear that their testimony would more likely have been helpful than harmful to [the defendants]. The burden of so showing was defendants’. The district court agreed with the government that these witnesses probably would have been concerned with the consequences of their own involvement in these enterprises and would not have incriminated themselves in order to exculpate defendants.”
(In the Sand case five of the thirteen possible witnesses died.)
Insofar as the uniform lack of memory on the part of the live witnesses, the argument is raised by the government that a claim that the memories of witnesses have dimmed does not constitute actual prejudice. That contention is supported by Marion, supra, 404 U.S. at 325-326, 92 S.Ct. 455. See also United States v. Andros, 484 F.2d 531, 533 (9th Cir. 1973). However, there is a. distinction to be made between a mere claim of dimmed memories and proof that the memories of witnesses have indeed been impaired by the passage of time. Where impairment is shown, it may be argued that such element is a factor to be considered as contributing to the actual prejudice to the defendant. Ross v. United States, 121 U.S. App.D.C. 233, 349 F.2d 210, 213-215 (1965). In the present case, the record is replete with examples of the witnesses’ incapacity to remember aspects of key transactions. While many instances of such memory loss seem rather convenient, we prefer to rely on the trial judge’s evaluation of the witnesses.
However, once again the problem arises as to determining what was the evidence lost and how the defendants are adversely prejudiced by that loss. In the record, we find no indication of how the live witnesses would have testified had their memories not dimmed. Therefore, it is impossible to evaluate their contribution to the defense against the charges.
IV. CONCLUSION
As discussed above, this Court is in general agreement with the district court’s treatment of the case except for the final element of the adequacy of the defendants’ showing of actual prejudice. However, as that last element is the foundation upon which the defendants must base their Due Process claims, it is concluded that the district court erred in its dismissal of the various counts (with the exception of Count 3 of Indictment No. 74-676 which was defectively set forth).
We reverse and remand without prejudice to the trial court, with instructions that he may again consider the issues, perhaps (but not necessarily) at the time of trial, and/or prior to the submission of any counts to the jury.
SO ORDERED.
1.
A third form of actual prejudice was claimed in the motion of defendant Mays to dismiss the indictments, the loss of relevant documentation and other physical evidence. However, no examples of the specific missing documents or evidence were provided either in the motion, in the record or in the appellees’ briefs. That claim is dismissed as without support.
2.
See e. g., Report by Examiner agent W. Freitas of an interview with Herrick prior to the latter’s death, Clerk’s Transcript (“CT”) pp. 1089-1090; Affidavit of Robert Mallano, Herrick’s attorney, submitted by government into evidence, CT pp. 845-846; Testimony of Robert Lawson, an officer of Nursing Centers, Reporter’s Transcript (“RT”) vol. II, pp. 37 — 42; Testimony of N. Busch, employee of Nursing Centers, RT vol. II, pp. 54-58.
3.
Seven of the twelve nominee-borrowers made no mention of Herrick in connection with their loans as reported in certain government interviews. Conversely, six of the borrowers do mention Mays in connection with said loans. Gov’t Ex. 6a-c. Herrick, in the aforementioned interview with Freitas, stated that Coltrane instructed him as to the manner in which the asset and income figures for the perspective borrowers were to be filled out on the loan • documents. Def. Ex. II. In the FBI report for one of the nominee-borrowers, Cavin, the witness states that he recalled that Mays appeared to be in control of the Nursing Centers and that Herrick was only doing the legwork and trying to learn the ropes. Gov’t Ex. 6a.
4.
Initially, all the defendants moved to dismiss for pre-indictment delay citing three grounds: I) Sixth Amendment right to speedy trial, 2) Rule 48(b) of the Federal Rules of Criminal Procedure (“FRCrP”) — which permits discretionary dismissal by the court “If there is unnecessary delay in presenting the charge to a grand jury or in filing an information against a defendant who has been held to answer to the district court, or if there is unnecessary delay in bringing a defendant to trial . . and 3) Fifth Amendment right to Due Process. However, in United States v. Marion, 404 U.S. 307, 319 & 321, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), the Supreme Court specifically held that both the Sixth Amendment right to a speedy trial and Rule 48(b) do not come into play until after the individual has been placed under arrest. This rule has been followed in this Circuit and others. United States v. Jackson, 504 F.2d 337, 339 (8th Cir. 1974), cert. denied, 420 U.S. 964, 95 S.Ct. 1356, 43 L.Ed.2d 442 (1975); United States v. Joyce, 499 F.2d 9, 19 (7th Cir. 1973), cert. denied, 419 U.S. 1031, 95 S.Ct. 512, 42 L.Ed.2d 306 (1974); United States v. Giacalone, 477 F.2d 1273, 1275-1276 (6th Cir. 1973); United States v. Carey, 475 F.2d 1019, 1020 (9th Cir. 1973); cf., Dillingham v. United States, 423 U.S. 64, 65, 96 S.Ct. 303, 46 L.Ed.2d 205 (1975).
5.
The Court also decided the applicability of the Sixth Amendment guarantees to the pre-indictment period. Marion, supra, 404 U.S. at 313-323, 92 S.Ct. 455.
6.
Many references to the Marion test state that both elements are to be found in the facts of the case. See, e. g., United States v. Duke, 527 F.2d 386, 390 (5th Cir.), cert, denied, 426 U.S. 952, 96 S.Ct. 3177, 49 L.Ed.2d 1190 (1976); Joyce, supra, 499 F.2d at 19-2,0; United States v. Parish, 152 U.S.App.D.C. 72, 468 F.2d 1129, 1132 (1972), cert, denied, 410 U.S. 957, 93 S.Ct. 1430, 35 L.Ed.2d 690 (1973). Alternatively, some courts have stated that the presence of either element is sufficient. See, e. g., United States v. Pollack, 175 U.S.App.D.C. 227, 534 F.2d 964, 969 (1976); Giacalone, supra, at 1276-1277. Some courts have focused primarily on whether the delay on the part of the government was intentional and for an improper purpose. E. g., United States v. Zane, 489 F.2d 269, 270 (5th Cir. 1973), cert, denied, 416 U.S. 959, 94 S.Ct. 1975, 40 L.Ed.2d 310 (1974). Others have considered solely the question of substantial prejudice to the defendant. E. g., United States v. Dukow, 453 F.2d 1328, 1330 (3d Cir.), cert, denied, 406 U.S. 945, 92 S.Ct. 2042, 32 L.Ed.2d 331 (1972). The Eighth Circuit has established its own standard which considers 1) the unreasonableness of the delay and 2) the prejudice to the defendant’s ability to defend against the charges. United States v. Lovasco, 532 F.2d 59, 61 (8th Cir. 1976), cert, granted, 429 U.S. 884, 97 S.Ct. 233, 50 L.Ed.2d 164 (1976). (But see dissents of J. Henley in both Lovasco, supra, and Barket, infra, stating that the Marion test requires both substantial prejudice and intentional delay on the part of the government.)
It should be noted that the overwhelming majority of the cases did not find the requisite element of actual prejudice to the defendant caused by the delay. Hence, it might be argued that the discussions of the test are dicta. See United States v. Barket, 530 F.2d 189, 194-195 (8th Cir. 1976); accord, United States v. White, 470 F.2d 170, 175 (7th Cir. 1972).
7.
Some Ninth Circuit cases have stated the two elements in the disjunctive, e. g., United States v. Sand, 541 F.2d 1370, 1373 (9 Cir. 1976); United States v. Manning, 509 F.2d 1230, 1234 (9th Cir. 1974), cert. denied, 423 U.S. 824, 96 S.Ct. 37, 46 L.Ed.2d 40 (1975); United States v. Erickson, 472 F.2d 505, 507 (9th Cir. 1973). Others have stated that both elements must be shown. United States v. Cordova, 537 F.2d 1073, 1076 (9th Cir. 1976); United States v. Andros, 484 F.2d 531, 533 (9th Cir. 1973); United States v. Griffin, 464 F.2d *6761352, 1354 (9th Cir. 1972), cert. denied, 409 U.S. 1009, 93 S.Ct. 444, 34 L.Ed.2d 302 (1973). It is noted that in none of the above cases was the prejudice found to be “actual” or “substantial.”
8.
Marion, supra, 404 U.S. at 324-325, 92 S.Ct. 455.
9.
Some cases, in dicta, have held that pre-indictment delay for improper purposes on the part of the government would be sufficient by itself, even if no actual prejudice to the defendant were shown. See United States v. Emory, 468 F.2d 1017, 1019 (8th Cir. 1972). However, such contention seems contrary to the Marion decision and to Hoffa v. United States, 385 U.S. 293, 310, 87 S.Ct. 408, 417, 17 L.Ed.2d 374 (1966), wherein it is stated that “there is no constitutional right to be arrested.”
10.
Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959).
11.
In the present case, the government, pursuant to a court order, turned over its records regarding the prosecution of the cases to the defendants’ attorneys. However, the government maintains, even though it did not object at the time, that the court’s order was contrary to Rule 16 of the FRCrP.
12.
A problem for the defendant admittedly arises in the demonstration of how a now absent witness would have contributed to the defendant’s defense had he been available to testify. While the witness may have been intimately involved in the activities which are the subject of the criminal charges facing the defendant, until the defendant is indicted or arrested, he has no reason to attempt to preserve the witness’s testimony. Consequently, if the witness becomes unavailable prior to the indictment, the defendant may not have any real proof as to what testimony that witness could have presented, but may nevertheless feel that his defense has been impaired. Conversely, however, unless the defendant can make some showing as to what the testimony would have been, or specifically how the witness could have exonerated him, there is no way of knowing whether the defendant is merely speculating as to the contribution of the witness to his defense or perhaps even attempting to take advantage of the witness’s unavailability to make a Due Process claim when it is in reality unfounded. In a criminal prosecution, the government bears the burden of proving guilt beyond a reasonable doubt. The loss of witnesses therefore has an impact on the government’s case as well as on the defense. Cf., Marion, supra, 404 U.S. at 322, 92 S.Ct. 455. This is especially true where the deceased witnesses are allegedly involved in the unlawful activity themselves. Cf., Sand, supra, 541 F.2d at 1373.
13.
The trial court also mentions, as an alternative ground for dismissal, the exercise of the court’s duty to prevent unfairness due to the unreasonable pre-indictment delay by the government. Such ground is in error insofar as it is based on Rule 48(b) of the FRCrP. See footnote 4, supra.
14.
See the district court’s Conclusions of Law Nos. 11 through 14, CT pp. 1101-1103.
15.
See Finding of Fact No. 63, CT p. 1087 and Conclusion of Law No. 10(b), CT p. 1100.
16.
See footnote 3, supra.
17.
The lack of supporting evidence would perhaps not be considered as adversely to the defendants in a situation where they had no notice of the possibility of criminal indictments. However, in the present situation, Coltrane was interviewed by an Examiners’ agent in November, 1969 and by an FBI agent on July 28, 1970 and January 24, 1972. In both of the latter interviews, Coltrane was advised of his rights. Gov’t Ex. 6a. Mays was advised of his rights in the presence of his attorney in an interview by an FBI agent on January 25, 1972. Both Herrick and Fleming were alive until January, 1974. Stanley did not die until January, 1975, eight months after the indictments were returned.
In addition, there are certain statements contained in the record allegedly made by Herrick which implicate Coltrane in the preparations of the loan documents. See footnote 3, supra. The government also offered some evidence to the effect that, had Herrick lived, he would have been a government witness. See Appellant’s brief, p. 54.
18.
See footnotes 3 and 17, supra.