The opinion of the court was delivered by: WEBER
The defendant George Fassnacht was indicted on October 18, 1971 on sixteen (16) counts of having aided, assisted, counseled and advised in the preparation of false and fraudulent documents relating to the transfer of firearms in violation of 26 U.S.C. § 7206(2). The events forming the subject of the indictment occurred from November 30, 1965 up and through June 1966. He was brought to trial in February 1973 and after a trial of several days the jury was unable to agree and a mistrial was declared.
Prior to trial the defendant moved to dismiss because of prejudicial delay, not because of pretrial delay after bringing the indictment, but delay in bringing the indictment long after the government had sufficient knowledge of the transactions and the persons connected with it. The defendant claims that this delay was extremely prejudicial to his ability to present a defense, served no proper purpose of the government in the interests of justice, and violates his rights to due process at law and a fair trial under the 5th Amendment. The pretrial motion was denied without prejudice to its renewal before the trial judge.
We believe that the motion may more properly be considered post-trial, when the evidentiary basis of defendant's claims are made apparent on the record.
The facts of prejudice established by the record and advanced by the defendant are as follows:
(1) The delay prior to indictment and after the alleged incidents is almost six years. The indictment was within the six year statute of limitations. This delay in notice to an accused that he must stand trial for an act six years prior thereto creates an inherent risk of an unfair trial.
(2) The government's investigation was conducted in 1968. The government agent interviewed the named co-defendant on October 7, 1968, and the defendant on December 16, 1968. Another participant in the transactions was indicted on May 14, 1970.
(3) William Caley, a witness to the transactions in question who was indicted on May 14, 1970, died December 7, 1970.
(4) Defendant's mother, Mrs. Dorothy Fassnacht, with whom he resided, and who was a witness to various matters relating to the custody and transfer of the weapons, died in 1967.
(5) Dr. Fillinger, who was present at the initial transaction involving the purchase of the weapons, and who participated in their transfer, was not indicted and was able to testify for the government at trial with immunity because of the bar of the Statute of Limitations against prosecution for the self-incriminating testimony which he gave.
(6) The effect of the delay on the memory of the government's principal witness, the co-defendant Stephen Harmon, Jr., whose recollection of dates and events was uncertain, and whose initial statement to the government deliberately omitted the presence of Dr. Fillinger at the transaction, in order to cover up for him. The government learned of Fillinger's participation in a second interview with Harmon in 1968 and interviewed Fillinger in January 1969.
(7) The effect of delay on defendant's ability to establish an alibi defense, to establish a statute of limitations defense, and to secure documentary evidence essential to his defense.
The testimony revealed at the trial showed that the government was in full possession of all of the facts necessary to institute prosecution by 1969. It had the statement of the principal government witnesses Harmon, implicating the defendant. It had the defendant's statement witness Harmon, implicating the from Harmon, implicating Dr. Fillinger. It had a statement from Dr. Fillinger which implicated defendant. It is the transaction between Harmon, Fillinger and Fassnacht, in November 1965, which forms the basis of the indictment. There were four witnesses to that event, ...