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May 13, 1991


The opinion of the court was delivered by: Robert P. Patterson, Jr., District Judge.


Defendant Wayne Harrison ("Harrison") moves pursuant to Rule 12 of the Federal Rules of Criminal Procedure for dismissal of the indictment against him on the ground that pre-indictment delay in bringing the prosecution violated his right to due process under the Fifth Amendment to the United States Constitution. Defendant requested that a hearing be held on the issue. Oral argument was heard on April 1, 1991, at which time counsel agreed that they would argue the motion based on a proffer made by the government instead of holding a hearing.*fn1

For the reasons stated below, the motion is denied.


Harrison was indicted in December, 1990, on a single count charging him with the embezzlement of $31,446 from Citibank between April 9, 1985 and April 15, 1985, in violation of 18 U.S.C. § 656. The investigation arose when Citibank became aware, in late April, 1985, of the loss of sixteen of a batch of one hundred blank cashier's checks, which had been issued to the Staff Banking Department of Citibank at 399 Park Avenue, New York, New York. Two of those sixteen checks had been negotiated through Washington Federal Savings & Loan, a bank in Washington, D.C., and deposited in a personal checking account under the name "Richard Wendale Winter" ("the Winter account") in late April, 1985. Citibank began an internal investigation of the missing checks and on May 29, 1985, notified the Federal Bureau of Investigation ("FBI") of the suspected theft. Tr. 6; Government's Memorandum of Law in Opposition to Motion to Dismiss, 2-3.

The government's proffer was directed to showing that there were justifiable investigative and administrative reasons for the delay in indicting Harrison. During or around May of 1985, sixteen personal checks were drawn on the Winter account. In June of 1985, the government issued a grand jury subpoena to Harrison for the purpose of obtaining handwriting exemplars, fingerprints and photographs of him, with which he complied. Tr. 19, 32; Affidavit of Wayne Harrison, February 1, 1991, ¶ 5. He did not make any statement at that time and was represented by counsel. Tr. 34-35. The FBI conducted handwriting and laboratory analyses of the two cashier's checks which had been deposited in the Winter account. It did not conduct laboratory analyses of the sixteen personal checks at that time. Tr. 19, 27-28. Some of the personal checks drawn on the Winter account were made out to "Cash" and others were made out to various persons. Tr. 22-23. Upon receiving those names, the FBI began to investigate those individuals, including determining if they were real or fictitious, interviewing some of them and conducting background checks on them.*fn2 Reports on the background checks were received by the FBI case agent from local FBI offices as late as September, 1986. The case agent also attempted to determine whether Richard Winter was a real or fictitious person and what his role was, if any. Tr. 17-26.

At some point between September, 1986 and November, 1987, the case agent handling the investigation was assigned to a case involving a major bank failure, which took up most of his time. In May, 1988, the case agent was transferred from the FBI's New York office to the FBI Academy; the case was reassigned to a different case agent. In August of 1988, the new case agent resigned from the office and the case was again reassigned to another case agent. In October, 1988, that agent met with prosecutors and it was determined that the investigation should continue. In March, 1989, the case was reassigned yet again to Special Agent Peter Grupe, whose affidavit is submitted in support of the government's argument. Tr. 26-28. Special Agent Grupe conducted further background investigation of Harrison and interviewed Harrison in June, 1989. The government alleges that Harrison recanted the 1985 admissions, stating that he had been confused by the polygraph examiner and thought the questions referred to personal checks of his own rather than Citibank's cashier's checks. Government's Memorandum of Law, supra, at 4. Between July, 1989 and November, 1989, laboratory analyses were performed for the first time on the personal checks drawn on the Winter account. Some persons whose names appeared on those checks were reinterviewed. Between November, 1989 and November, 1990, Special Agent Grupe was handling several other cases, including two which went to trial in that period. In November, 1990, a complaint was filed against Harrison and the instant indictment followed. Tr. 26-28.


Excessive pre-indictment delay may, under certain circumstances, violate a criminal defendant's Fifth Amendment right to due process. United States v. Lovasco, 431 U.S. 783, 788, 97 S.Ct. 2044, 2047-48, 52 L.Ed.2d 752 (1977). In United States v. Elsbery, 602 F.2d 1054 (2d Cir. 1979), cert. denied, 444 U.S. 994, 100 S.Ct. 529, 62 L.Ed.2d 425 (1979), the Second Circuit held that to show a denial of due process because of pre-indictment delay, a defendant must show "actual substantial prejudice" to his right to a fair trial and also unjustifiable government conduct. 602 F.2d at 1059. Harrison states that both actual substantial prejudice and unjustifiable government conduct are present, but he also asserts that he does not have the burden to show both.

The law in this circuit after Elsbery, supra, is that to win dismissal of a case for delay, a defendant must show both actual substantial prejudice and unjustifiable government conduct, not one or the other; defendant's citations in support of his argument do not hold to the contrary. See United States v. Long, 697 F. Supp. 651, 657 (S.D.N.Y. 1988); United States v. Slochowsky, 575 F. Supp. 1562, 1569 (E.D.N.Y. 1983).

1. Actual Substantial Prejudice

The Supreme Court has noted that the "primary guarantee against bringing overly stale criminal charges" is the applicable statute of limitations. United States v. Marion, 404 U.S. 307, 321, 92 S.Ct. 455, 463-64, 30 L.Ed.2d 468 (1971). In the present matter, the applicable statute of limitations is ten years from the date of commission of an offense under 18 U.S.C. § 656. 18 U.S.C. § 3293. The government asserts that the fact that this indictment has been brought within the ten-year limitations period undermines any showing of prejudice, in spite of the five and a half years which have elapsed between the theft, the ensuing grand jury subpoena of Harrison, and the indictment.

Harrison argues that he will be denied a fair trial because a potential witness, Michael Slade, has died in the years between the alleged offense and the indictment,*fn3 and because Harrison can no longer remember the events of 1985 or details ...

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