Ross rejected on grounds that only the statute of limitations governs pre indictment delay
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- Ross rejected on grounds that only the statute of limitations governs pre indictment delay
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The opinion
ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC
PER CURIAM:
Our attention is called by the Petition for Rehearing to the following language appearing in the text of United States v. Marion, et al., 404 U.S. 307 , 92 S.Ct. 455 , 30 L.Ed.2d 468 (1971) appearing at page 465 of 92 S.Ct.:
“Since appellees rely only on potential prejudice and the passage of time between the alleged crime and the indictment, see Part IV, infra, we perhaps need go no further to dispose of this case, for the indictment was the first official act designating appellees as accused individuals and that event occurred within the statute of limitations. Nevertheless, since a criminal trial is the likely consequence of our judgment and since appellees may claim actual prejudice to their defense, it is appropriate to note here that the statute of limitations does not fully define the appellees’ rights with respect to the events occurring prior to indictment. Thus 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 and that the delay was a purposeful device to gain tactical advantage over the accused. 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). However, we need not, and could not now, determine when and in what circumstances actual prejudice resulting from pre-ac-cusation delays requires the dismissal of the prosecution. Actual prejudice to the defense of a criminal case may result from the shortest and most necessary delay; and no one suggests that every delay-caused detriment to a defendant’s case should abort a criminal prosecution. To accommodate the *418 sound administration of justice to the rights of the defendant to a fair trial will necessarily involve a delicate judgment based on the circumstances of each ease. It would be unwise at this juncture to attempt to forecast our decision in such cases.”
We view this as simply a caveat by the Court to the effect that a case may be presented in which substantial prejudice to a fair trial may be shown to have occurred because of pre-indictment delay. Other than vague generalities asserting that their defense was prejudiced because of delay, the appellees have made no showing of delay-induced prejudice in this case. The showing is characterized in the petition for rehearing as follows:
“The brief of the Petitioners pointed out the loss of witnesses, 1 the loss of evidence and particularly the blurring of the memories of the Petitioners and their witnesses. The brief contrasted the sharp, crisp testimony of the government agents, trained agents who were able to note during their investigation those important elements necessary for securing a conviction. Appellants had no knowledge that they were delaying the government agents or that they would be formally accused until the indictments were returned against them twenty-one months later. The State was able to proceed methodically to build this case while the Petitioners proceeded to lose theirs.”
It seems to us that the same or similar allegations might well be urged in any criminal case in which the indictment occurs twenty-one months after the events upon which it is based. But all practiced trial lawyers are well aware that the attrition from such delay is more damaging to the prosecution’s case than to that of the defense. This will be so as long as the prosecution has the burden of proof. In sum, while we recognize that the hypothetical case forecast by the above quotation from Marion may arise some day, we do not believe that this is such a case.
The Petition for Rehearing is denied and no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc, (Rule 35, F.R.A.P.; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is denied.
. As we read the appellants’ brief this is limited to the disappearance of a single person who might have furnished evidence for the defense.