The opinion of the court was delivered by: DAVIS
John Morgan Davis, District Judge.
The defendant has petitioned this Court for consideration of a number of post-trial motions which include a motion for new trial, motion in arrest of judgment and motion for judgment of acquittal.
The F.B.I. began its investigation in April 1968 and continued through June 1970. However, the bulk of the F.B.I. examination was completed by June 1968. Following the investigation an evaluation was made by the Organized Crime Strike Force of the Department of Justice and by the United States Attorney's Office. The evaluations resulted in a delay which caused the Indictment to be returned three days prior to the running of the Statute of Limitations.
The Court held a pretrial hearing on February 17, 1972, to hear argument on Motions to Inspect the Grand Jury Minutes; for a Preliminary Hearing; and to Dismiss the Indictment. All of the motions were denied. On March 14, 1972, a rehearing was held on the Motion to Dismiss. The Court after hearing the testimony of Mrs. Jean Sippel, the office secretary of the Union, and of George J. Wilson, the defendant (pre-trial Notes of Testimony), denied the defendant's Motion to Dismiss.
The defendant presents to the Court six points in support of his Motion for a New Trial. The first point is whether the Court erred in denying Defendant's Motion to Dismiss. The defendant alleges that undue prejudice was caused by an unreasonable pre-indictment prosecutorial delay and is in violation of the Fifth and Sixth Amendments of the Constitution. The leading case on this point is United States v. Marion, 404 U.S. 307, 92 S. Ct. 455, 30 L. Ed. 2d 468 (1971). In the Marion case, supra, the Supreme Court held that the Sixth Amendment right to a speedy trial does not apply until the defendant is actually indicted. Thus the entire basis for this Motion is whether the defendant's Fifth Amendment due process rights have been violated. The Court said at 324, 92 S. Ct. at 465:
The Government concedes that 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. . . . Cf. Brady v. Maryland, 373 U.S. 83 [83 S. Ct. 1194, 10 L. Ed. 2d 215] (1963), Napue v. Illinois, 360 U.S. 264 [79 S. Ct. 1173, 3 L. Ed. 2d 1217] (1959).
The Court did not elaborate on substantial prejudice but left this up to future cases.
The first element of a violation of due process is to determine whether there was unreasonable delay. In this case there was a delay of approximately 16 months from the time the investigation was complete to the time the indictment was returned. The Government claims the delay was in evaluating the case by the Organized Crime Strike Force and the Attorney General's Office. Unfortunately, this argument does not impress the Court, and the Court will follow Judge Newcomer's language in United States v. Wilson, Jr. et al., 346 F. Supp. 371, at 374 (E.D. Pa. 1972), when he said:
It takes some time to transfer a file and bring an indictment, but in this case it shouldn't have taken seventeen months. The Court is of the opinion that there was an unreasonable delay in bringing the indictment in this case.
Thus this Court also finds unreasonable delay.
The Court must now deal with the problem of whether the defendant was substantially prejudiced by the unreasonable delay in bringing the indictment. Under the dictum of the Marion decision, supra, it is necessary for the defendant to show the unreasonable delay caused substantial prejudice, not merely speculative prejudice.