DOJ-OGR-00002514.pdf

Case 1:20-cr-00330-AJN Document 138 Filed 02/04/21 Page 11 of 26 consequences.'" United States v. Sabath, 990 F. Supp. 1007, 1018 (N.D. Ill. 1998) (quoting BLACK'S LAW DICTIONARY 1270 (6th ed.1990)). As noted by Chief Judge McMahon in United States v. Santiago, 987 F. Supp. 2d 465, 488-91 (S.D.N.Y. 2013), "[t]he Second Circuit has never specifically declined to adopt the Lovasco 'Footnote 17' test (as restated in Eight Thousand Eight Hundred Fifty Dollars). Nor has it specifically found that pre-indictment delay engendered in reckless disregard of circumstances that would likely impede a defendant's ability to mount a defense can never violate the Due Process Clause." Courts generally agree that (1) "tactical, reckless, or bad faith preindictment delay that unduly prejudices a defendant is constitutionally dubious," United States v. McNeal, No. 03 CR 80, 2006 WL 760186, at *6 (N.D. Ill. Mar. 20, 2006); and (2) determinations of prejudicial preindictment delay are fact-specific inquiries that will turn on the unique circumstances of a case. See Marion, 404 U.S. at 324-25; Lovasco, 431 U.S. at 797.4 This is that case. 4 Several Circuit Courts of Appeal interpret Marion/Lovasco as requiring a balancing test that weighs the prejudice to a defendant against the government's reasons for the delay. See, e.g., United States v. Valentine, 783 F.2d 1413, 1416 (9th Cir. 1986); Howell v. Barker, 904 F.2d 889, 895 (4th Cir. 1990); United States v. Sowa, 34 F.3d 447, 451 (7th Cir. 1994); United States v. Moran, 759 F.2d 777, 782 (9th Cir. 1985). See also United States v. Collamore, 751 F. Supp. 1012, 1027 (D. Me. 1990), aff'd, 940 F.2d 646 (1st Cir. 1991) (quotation omitted) (holding that a defendant may show a due process violation based on excessive preindictment delay incurred in reckless disregard of circumstances, known to the prosecution, suggesting that there existed an appreciable risk that delay would impair the ability to mount an effective defense); and Schurman v. Leonardo, 768 F. Supp. 993, 998 (S.D.N.Y. 1991) (recognizing reckless disregard standard). Legal commentators have, for many years, discussed the Circuit split regarding the test to be applied to claims of pre-indictment delay and called for the U.S. Supreme Court to resolve the matter. See, e.g., Phyllis Goldfarb, "When Judges Abandon Analogy: The Problem of Delay in Commencing Criminal Prosecutions," 31 WM. & MARY L. REV. 607 (1990); Eli DuBosar, "Pre-Accusation Delay: An Issue Ripe for Adjudication by the United States Supreme Court," 40 FLA. ST. U. L. REV. 659 (2013); see also Hoo v. United States, 484 U.S. 1035, 1036 (1988), where Justice White noted that he would grant certiorari to resolve the conflict among the Circuits on this important question of constitutional law. 6 DOJ-OGR-00002514