UNITED STATES of America, Plaintiff-Appellant, v. Annette Knotts RADMALL, Defendant-Appellee, 591 F.2d 548

McWILLIAMS, Circuit Judge. By an indictment returned on November 17, 1976, Annette Knotts Radmall, head teller of a federally insured savings and loan association, was charged in eight counts with embezzling some $5,330 from her employer in violation of 18 U.S.C. § 657. Each of the eight counts was based on a separate transaction, the earliest transaction occurring on or about January 7, 1972, and the last transaction occurring on or about October 4, 1972. Shortly prior to trial, the defendant filed a motion to dismiss based on pre-indictment delay.

The motion pointed out that the indictment was returned more than four years after the most recent offense charged, and nearly- — though not quite— five years after the earliest offense charged. This motion was supported by affidavits from both the defendant and her attorney.

The latter based his declarations on his inspection of the Government files, and he concluded therefrom that the delay was caused by the Government’s desire to obtain additional evidence and to also re-interview the defendant before submitting the matter to the Grand Jury, coupled with the additional fact that other cases awaiting submission to the Grand Jury were deemed to be of a more pressing nature. The defendant in her affidavit declared, in effect, that the delay of over four years had dimmed her memory as to the “thousands of transactions” she had handled.

The trial court declined to hear the motion to dismiss prior to impaneling the jury. However, after the jury had been sworn, and before any evidence was offered, the trial court, after hearing argument on the motion, granted the motion and dismissed the indictment.

In the order of dismissal, the trial judge concluded that the Government’s delay in prosecuting the matter was “intentional, continuous, unreasonable, and prejudiced the defendant and violates defendant’s rights to due process of law under the Fifth Amendment of the United States Constitution.” The Government now appeals the order of dismissal under 18 U.S.C. § 3731. We reverse. On appeal the defendant does not claim that 18 U.S.C. § 3731 is inapplicable on the ground that the Double Jeopardy Clause of the Fifth Amendment would bar bringing her to trial again.

Such an argument would appear to be foreclosed by United States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978). Hence, the only issue is whether, under the record, the Due Process Clause of the Fifth Amendment mandated a dismissal of the indictment. We think it did not. Both the Government and the defendant rely upon United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). In that case the Supreme Court spoke as follows: Nor have appellees adequately demonstrated that the pre-indictment delay by the Government violated the Due Process Clause.

No actual prejudice to the conduct of the defense is alleged or proved, and there is no showing that the Government intentionally delayed to gain some tactical advantage over appellees or to harass them. Appellees rely solely on the real possibility of prejudice inherent in any extended delay: that memories will dim, witnesses become inaccessible, and evidence be lost. In light of the applicable statute of limitations, however, these possibilities are not in themselves enough to demonstrate that appellees cannot receive a fair trial and to therefore justify the dismissal of the indictment.

Events of the trial may demonstrate actual prejudice, but at the present time appellees’ due process claims are speculative and premature. This Circuit has applied the Marion rule in numerous cases. See, for example, United States v. Redmond, 546 F.2d 1386 (10th Cir. 1977); United States v. Villano, 529 F.2d 1046 (10th Cir. 1976); and United States v. Beitscher, 467 F.2d 269 (10th Cir. 1972).

In those cases we have held that pre-indictment delay, where the indictment is nonetheless returned within the applicable statute of limitations, does not violate the Due Process Clause of the Fifth Amendment in the absence of a showing of actual prejudice to a defendant and a further showing that such delay was purposely designed by the Government to gain either a tactical advantage over a defendant or to harass him.

Applying the rule enunciated in the cases above referred to, the record in the instant case does not show that the pre-indictment delay was caused by a purposeful effort on the part of the Government to gain a tactical advantage over the defendant. To the contrary, it would appear that the delay was primarily caused by a desire on the part of the Government to be more certain of its case before submitting the matter to the Grand Jury, coupled with a belief that other cases were of a more urgent nature. Furthermore, the defendant’s claim of prejudice is couched in very conclusory terms.

Under Marion, a mere dimming of memory would not be sufficient to show prejudice. On the question of prejudice, see United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977), where the Supreme Court held that to prosecute a defendant following pre-indictment delay does not deprive him of due process, even if his defense may have in fact been “somewhat prejudiced” by the lapse of time.

Judgment reversed, and case remanded with directions that the indictment be reinstated, further proceedings to be consonant with the views herein expressed. 18 U.S.C. § 3282 provides that no person shall be prosecuted, tried or punished for any non-capital offense unless the indictment is found within five years next after such offense shall have been committed.