The opinion of the court was delivered by: NEWCOMER
NEWCOMER, District Judge.
This case is now before the Court on motions by both defendant Burke and defendant Wilson to dismiss. Each alleges that his right to due process of law under the Fifth Amendment of the Constitution has been violated by preaccusation delay for which the Government is responsible. Because of the recent and complex developments concerning the Constitutional dimensions of pre-accusation delay, we will discuss the recent trends in this area of the law first before moving on to a discussion of the law as it applies to the facts of this case.
The most significant recent decision relevant to the present case is United States v. Marion, 404 U.S. 307, 92 S. Ct. 455, 30 L. Ed. 2d 468 (1971). The Marion case involved a claim that the simple passage of three years from the time the Government had enough on Marion to prosecute him to the time that an indictment was actually brought violated Marion's rights to Due Process of Law under the Fifth Amendment and speedy trial under the Sixth Amendment. The Court held that the Sixth Amendment does not apply to any case until the defendant becomes an accused. The Court further held that a person does not become an accused until either formal charges are brought against him or his liberty is in some way restricted. Since the indictment was the first act of accusation on the facts before the Court, the Court held that the Sixth Amendment right to speedy trial was of no relevance. The Court held that, for pre-accusation delay to rise to the level of a violation of due process, there must be more shown than the simple passage of time. It is important to note, however, that although the Court did allude to at least one factor which might provide the necessary extra something, (provable prejudice greater than that which normally results from the simple passage of time) it did not say or claim to say conclusively and exhaustively what all possible factors might be, but left the question open for future cases. Marion, supra, 404 U.S. at 323-325, 92 S. Ct. at 465-466, 30 L. Ed. 2d at 480, 481. The recent Third Circuit cases of United States v. Melnick, 458 F.2d 909 (3rd Cir., 1972) and United States v. Dukow, 453 F.2d 1328 (3rd Cir., 1972) have made it clear that actual provable prejudice is one factor to be considered in these cases but have not dealt with any other possible considerations.
THE LAW APPLIED TO THE FACTS AT BAR
We now turn to the case at hand and the questions whether or not the authorities knew the identity of the accused for a significant time before the accusation was made, and whether or not there was an unreasonable delay between that time and the bringing of the indictments.
The relevant facts bearing on these issues are as follows. On November 18, 1966, Thomas J. Gallagher, Regional Director of the Federal Housing Administration, sent a letter to Easton Arms Incorporated setting out certain conditions for continued FHA support of the Kennedy Gardens Housing Project in Easton, Pennsylvania. The FHA received two letters in reply, one over a signature reading "George Wilson", who was then Chairman of the Board of Easton Arms, and one over a signature reading "William L. Burke", who was then President of Easton Arms. The indictment charges that each of these letters contains a false and misleading statement of fact about a matter within the jurisdiction of the FHA.
Shortly after this, apparently in early 1967, the FHA began an investigation of Mr. Burke, apparently including but not limited to the contents of the letter here in question. Mr. Wilson was also investigated apparently as a spin-off of the original investigation. The FHA investigation lasted over a year, when the matter was transferred to the Justice Department and referred to the FBI in April of 1968. The FBI conducted extensive investigation of Mr. Burke, and incidental thereto, Mr. Wilson, from April 1968 until December of 1969, when the matter was referred to the Department of Justice Strike Force for presentation to a grand jury, in February of 1970. No indictments were returned, and the FBI conducted further investigations until approximately June of 1970, when the entire matter was referred to the United States Attorney's Office in the Eastern District of Pennsylvania. There the matter lay for some seventeen months, until an indictment was returned on November 17, 1971, some four days before the running of the statute of limitations. It is obvious that the Government knew of Mr. Burke and Mr. Wilson and their relation to the charges now before the Court by late 1968.
The investigation of Mr. Burke and Mr. Wilson was not limited to this specific charge, however, but involved their whole relationship to FHA projects and funding. It is clear that the Government has no obligation to bring charges "the moment they have the minimum evidence to establish probable cause". Hoffa v. United States, 385 U.S. 293, 310, 87 S. Ct. 408, 417, 17 L. Ed. 2d 374 (1966). We are of the opinion that the best interests of justice are served by the holding of the results of such an investigation such as the one in this case until its completion. We will not place the Government under the constraint of bringing charges turned up by such an investigation piecemeal, as long as the investigation is reasonably conducted. Although the length of time Mr. Burke and Mr. Wilson were under active investigation seems long, some three and one-half years, we are dealing with an area which produces complex crimes of financial misappropriation, easily concealed and difficult to uncover. Under the circumstances, we can find no unreasonable delay up to June of 1970.
Next, we must consider whether this unreasonable delay was maliciously motivated or undertaken to gain tactical advantage. There has been no credible evidence that it was and we therefore conclude that it was not.
Next, we must deal with defendants' argument that they have been specifically and provably prejudiced by the unreasonable delay in bringing the indictment. It will be helpful to deal with the contentions of both defendants separately.
Mr. Burke, testified at the hearing that there are two persons who are now unavailable to testify at trial who might be considered witnesses for the defense. One is a Mr. Brinker, who was the office manager of the Union Local which was the sponsor of the Easton Arms Project at the time the letters were written and the other is a Mr. Schaeffer, who was then the business agent for the Union Local. As to Mr. Brinker, it has been stipulated that he died sometime in 1967. As this was during the investigation ruled reasonable above, the Government is not chargeable with any risks resulting from his death and consequent unavailability as a witness. The Government is ...