Schaefer, Past President of I.B.E.W. who were the co-signors of the check involved. It is contended that Mr. Brinker and Mr. Schaefer as co-signors could assist in Mr. Wilson's testimony and possibly explain away the circumstances of the check. Mr. Brinker died prior to 1970 and consequently his testimony would have no bearing on the question of prejudice during the period of unreasonable delay which commenced in late 1970.
However, the potential witness, Mr. Schaefer, who became terminally ill during the period of unreasonable delay, presents a different problem. The question that is presented to the court is whether there is substantial prejudice, if the government unreasonably delays in presenting an indictment and a potential witness becomes incapable of testifying during that period of unreasonable delay. This question differs from the Wilson case, supra, before Judge Newcomer because in that case there were other witnesses who could testify on the points which Mr. Brinker and Mr. Schaefer were knowledgable. Here, the defendant contends that these two men were the only one's knowledgable on the signing of the check and substantial prejudice resulted because Mr. Schaefer was unable to testify.
The Court takes notice of the facts brought out in the testimony of the case concerning the potential testimony of Mr. Schaefer. Mr. Wilson, the defendant, stated (40-41 of the Notes of Testimony of the pre-trial hearing held on March 14, 1972) that the signing of all union checks was in the hands of Mr. Brinker and Mr. Schaefer. During the trial (N.T. 133-134) the defendant indicated that he never involved himself with bookkeeping or the internal affairs of the office. Finally, Mr. Wilson stated that he ordered no one to write the check in question. (N.T. 164-165).
On the Government's side, it was established that the bill from the wedding reception was sent to the defendant's home address and not to the union (N.T. 62). Also, Mrs. Jean Sippel, the office secretary for the I.B.E.W. and the individual who prepared the checks for the signature of Mr. Brinker and Mr. Schaefer stated that at no time had a check prepared by her been sent back without being signed. Other testimony established that Mr. Wilson controlled the union (N.T. 17), and that Mr. Schaefer and Mr. Brinker were office help who owed their jobs to the defendant. (N.T. 80,181).
Since both sides make opposite contentions about the potential testimony of Mr. Schaefer, the Court cannot make an adjudication of the veracity of the testimony. The Court finds that the unreasonable delay was substantially prejudicial to the case of Mr. Wilson in that the only witness who could explain the circumstances of the check became terminally ill during the period of unreasonable delay. Although the government contends that this is only a showing of potential or speculative prejudice, there is an absolute certainty as a signer of all checks that Mr. Schaefer would add testimony of utmost importance to the trial. Because of the unreasonable delay, substantial prejudice resulted which violated the defendant's due process rights under the Fifth Amendment.
The remaining points of the defendant's argument need not be ruled upon because the Court will dismiss the indictment on the basis that the defendant was substantially prejudiced prior to trial.
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