Opinion
No. 03 CR 50039-1-3.
August 2, 2004.
MEMORANDUM OPINION AND ORDER
Defendants, Philp Priola, Thomas Priola, and Lynnann Gage, have moved to dismiss the indictment based on pre-indictment delay, relying on the Due Process Clause of the Fifth Amendment and, alternatively, the Speedy Trial Clause of the Sixth Amendment.
The court rejects the Sixth Amendment claim as the Supreme Court has foreclosed that avenue under the circumstances present in this case. See United States v. Lovasco, 431 U.S. 783, 788 (1977).
As for a due process claim, which plays a limited role in protecting a defendant from "oppressive delay," a defendant must show "actual and substantial prejudice." United States v. Canoy, 38 F.3d 893, 901 (7th Cir. 1994). The obligation to show actual and substantial prejudice is an exacting one, requiring a defendant to offer more than a "suggestion of speculative harm." Canoy, 38 F.3d at 902. The prejudice must be concrete and substantial. Canoy, 38 F.3d at 902. A defendant is not deprived of due process if he is only somewhat prejudiced by the lapse of time. Canoy, 38 F.3d at 902. It is only if a defendant clears this "monumental hurdle" that the government need bring forth reasons for the delay and the court need balance the prejudice against the reasons. Canoy, 38 F.3d at 902.
Here, defendants have not cleared the monumental hurdle of showing concrete and substantial prejudice resulting from the pre-trial delay. Their references to the loss of evidence related to certain witnesses who have either died, become incapacitated, or become temporarily unavailable, are vague at best. They have also failed to specify the absence of alternatives such as depositions or other alternative forms of evidence. Based on defendants' failure to identify actual and substantial prejudice due to pre-indictment delay, the court denies the motion to the extent it is based on the Fifth Amendment.
For the foregoing reasons, the court denies the motion to dismiss for pre-indictment delay.