The opinion of the court was delivered by: WHIPPLE
This matter is before this Court on the motion of defendant Edward Vaughn for dismissal of the indictment as well as several discovery motions. For the reasons which follow, these motions will be denied, except as to those discovery requests which were otherwise disposed of at oral argument.
As a preliminary matter, this Court will address the motion made by defendant at oral argument that the dismissal and discovery motions be considered by the Court as unopposed, and that the Court disregard the Government's brief, because of the untimely filing of that brief. This Court finds that despite the untimely filing of the Government's brief, defendant has had a full and fair opportunity to present his arguments to the Court and to rebut those presented by the Government. Accordingly, this motion is denied.
Vaughn seeks dismissal of the indictment on two grounds: pre-indictment delay, and violation of the Speedy Trial Act. Those arguments, as well as the discovery motions, will be considered separately.
Colonel Vaughn contends that he was prejudiced by the lengthy delay between the initiation in 1976 of the investigation into this criminal matter, and the return of the indictment on December 19, 1980. Specifically, Vaughn asserts that all of the facts which form the basis of the indictment were known to the Government as early as 1977, yet no indictment was returned until late 1980. In the interim, Mr. Martin, a key witness and Vaughn's stepfather, has died, and Vaughn's career has been "clouded" by the pendency of this action. Therefore, argues Vaughn, proceeding with the prosecution of this action would violate his due process rights.
Dismissal of an indictment for pre-indictment delay is proper only where the defendant can show both 1) actual substantial prejudice occasioned by the delay, United States v. Lovasco, 431 U.S. 783, 790-95, 97 S. Ct. 2044, 2048-51, 52 L. Ed. 2d 752 (1977); United States v. Marion, 404 U.S. 307, 324, 92 S. Ct. 455, 465, 30 L. Ed. 2d 468 (1971), and 2) that the delay was not investigative delay, but was intentionally caused by the Government for tactical purposes. Id.
Neither of these essential elements has been shown by Vaughn. Continued prosecution of this matter notwithstanding the death of Mr. Martin does not violate due process in the absence of any showing of actual prejudice. See United States v. United States Gypsum Co., 550 F.2d 115, 117-119 (3d Cir. 1977), aff'd, 438 U.S. 422, 98 S. Ct. 2864, 57 L. Ed. 2d 854 (1978) (delay of eight years during which thirty-six potential witnesses died); United States v. Dukow, 453 F.2d 1328, 1330 (3d Cir.), cert. denied, 406 U.S. 945, 92 S. Ct. 2042, 32 L. Ed. 2d 331 (1972) (delay of as much as 55 months, during which two potential witnesses died). Here, Vaughn has failed to demonstrate that Mr. Martin would have been an important defense witness in this case. Defendant has made no offer of the testimony Martin would have given, nor any indication that Martin possessed unique knowledge of the transactions in question. Id. at 1330. Rather, it appears as though Mr. Martin was familiar only with the facts pertinent to several concurrent civil actions in which Mr. Martin is a named defendant with Vaughn. Additionally, no showing of actual prejudice has been made regarding the ability of Mr. Vaughn to present his defense, regardless of any personal strain he may have suffered due to the delay. Nor has Vaughn shown in any way that the Government deliberately delayed the indictment for any reason other than to properly conduct a thorough investigation of the matter. See U. S. v. Lovasco, supra, 431 U.S. at 794-95, 97 S. Ct. at 2051. Accordingly, Vaughn's motion to dismiss the indictment for pre-indictment delay must be denied.
Speedy Trial Act Violation
Alternatively, Vaughn argues that the indictment must be dismissed because his rights under the Speedy Trial Act, 18 U.S.C. § 3161(c), and the Plan for Prompt Disposition of Criminal Cases in this district (the "Plan") have been violated.
18 U.S.C. § 3161(c)(1) provides:
In any case in which a plea of not guilty is entered, the trial of a defendant charged in an information or indictment with the commission of an offense shall commence within seventy days from the filing date (and making public ) of the information or indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs. If a defendant consents in writing to be tried before a magistrate on a complaint, the trial shall commence within seventy days from the date of such consent. (Emphasis added.)
The Plan essentially adopts this federal statutory provision in toto. It states in pertinent part:
4. Time Within Which Trial Must ...