DOJ-OGR-00003003.pdf

--- Page 1 --- The extracted text is: **Case 1:20-cr-00330-PAE** **Document 204** **Filed 04/16/21** **Page 69 of 239** can use to carry her heavy burden. Without proof of actual prejudice, the motion fails. Second, even if the Court finds actual prejudice to the defense, the defendant has not established that the Government's purpose in any alleged pre-indictment delay was improper or designed to gain any sort of tactical advantage. The Government obtained an indictment charging the defendant on June 29, 2020, less than two years after opening its investigation and less than a year after victims with information critical to the pending charges came forward. The defendant thus cannot establish an undue delay, much less a delay caused by the Government for an improper purpose. Because the defendant cannot establish either element, let alone both, her due process claim is meritless and should be denied. **A. The Defendant Has Failed to Demonstrate Actual and Substantial Prejudice** **I. Applicable Law** It is well-settled that the statute of limitations is "the primary guarantee against bringing overly stale criminal charges." United States v. Marion, 404 U.S. 307, 322 (1971) (internal quotation marks and citations omitted). Thus, when a case has been brought within the statute of limitations, it is "only rarely dismissed," and carries a "strong presumption of validity." United States v. Cornielle, 171 F.3d 748, 752 (2d Cir. 1999); see also United States v. Lawson, 683 F.2d 688, 694 (2d Cir. 1982). The Second Circuit standard for pre-indictment delay is clear, and it imposes a heavy burden on the defendant to show that: "(i) 'he suffered actual prejudice because of the alleged pre-indictment delay,' and (ii) 'that such delay was a course intentionally pursued by the government for an improper purpose.'" Cornielle, 171 F.3d at 752 (citations omitted). The burden for proving both prongs of the standard rests squarely on the defendant. United States v. Scarpa, 913 F.3d 993, 1014 (2d Cir. 1990); United States v. Rubin, 609 F.2d 51, 66 (2d Cir. 1979); United States v.