United States v. Durnin
In United States v. Durnin, 632 F.2d 1297 (5th Cir.1980), the Court rejected a due process claim of pre-indictment delay on the sole basis that the defendant had not shown a motive on the part of the prosecutor to use the delay for tactical advantage, and the Court did so without even evaluating the presence or extent of prejudice:
"Appellant alleges that the delay denied him due process because he lost the testimony of an important witness in the interim between when the government could have brought an indictment and when it finally chose to do so. However, to establish a violation of the Due Process Clause in this context, appellant must show, not only substantial prejudice flowing from an inordinate delay, but also a motive on the part of the prosecutor to use the delay to gain a tactical advantage.... Appellant does not contend that the government sought to delay his indictment for tactical advantage, and the district court specifically found that the delay resulted from the government's good-faith attempt to ascertain appellant's guilt beyond a reasonable doubt. Since this finding is abundantly supported by the record, the district court's ruling on the motion to dismiss must be affirmed." Id. at 1299-1300.