The opinion of the court was delivered by: DITTER
This case comes before the court on a motion to dismiss an indictment for lack of a speedy trial.
Defendant, Foster Moore, was indicted on May 21, 1974, as a result of an offense allegedly committed more than a year before, May 1, 1973. He contends that his Fifth and Sixth Amendment rights were prejudiced as a result of the time which passed.
There was no statement as to the nature of what Harris' testimony would be -- or how he came into possession of the facts that may have been helpful to Moore's defense. In short, there was nothing upon which even a speculation of prejudice could be based -- much less any finding. The death of a possible potential witness, without more, does not justify the dismissal of an indictment. United States v. Dukow, 453 F.2d 1328, 1330 (3rd Cir.), cert. denied, 406 U.S. 945, 92 S. Ct. 2042, 32 L. Ed. 2d 331 (1972); United States v. Brown, 354 F. Supp. 1000 (E.D. Pa. 1973).
A delay in prosecuting a defendant for a year after the offense does not constitute prejudice per se. United States v. Benson, 487 F.2d 978, 985 (3rd Cir. 1973); United States v. Dukow, supra; United States v. Hanna, 347 F. Supp. 1010, 1014 (D.C. Del. 1972); United States v. Tate, 336 F. Supp. 58, 62 (E.D. Pa. 1971). This is particularly true since defendant knew he was the subject of an investigation. See United States v. Feldman, 425 F.2d 688 (3rd Cir. 1970). The defendant having failed to establish any prejudice, there was no infringement of his Due Process rights under the Fifth Amendment.
Possible prejudice under the Sixth Amendment is considered only on the basis of the time that has elapsed since the defendant formally became an "accused," which did not occur until the indictment was returned less than two months ago. United States v. Marion, 404 U.S. 307, 313, 92 S. Ct. 455, 459, 30 L. Ed. 2d 468 (1971). Obviously there has been no denial of Sixth Amendment rights in such a short period, and there is no merit in defendant's argument.
AND NOW, this 15th day of July, 1974, the Motion of Foster Moore to Dismiss Indictment is hereby refused.
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