dismisses charges against the defendant and before charges are refiled does not implicate a defendant's trial rights. Id. Thus, for purposes of Sixth Amendment analysis, the delay prior to defendant's arrest in 1995 is irrelevant. Id.
Having determined that defendant's motion cannot raise a claim under the Sixth Amendment, the court will construe his motion as raising a claim that his Fifth Amendment right to due process has been violated by the alleged inordinate delay in bringing the indictment against him. Unfortunately for defendant, this claim fares no better.
Initially, the court notes that defendant has not claimed that the government's prosecution is barred by the statute of limitations, which is the primary safeguard against any potential prejudice resulting from the government's alleged delay in seeking an indictment. See, e.g., United States v. Ashford, 924 F.2d 1416, 1419 (7th Cir. 1991). The Supreme Court has stated, however, that "the statute of limitations does not fully define [a defendant's] rights with respect to events occurring prior to indictment." United States v. Marion, 404 U.S. 307, 324, 30 L. Ed. 2d 468, 92 S. Ct. 455 (1971). In Marion, the Court observed that the due process clause of the Fifth Amendment may provide a check on certain prosecutions even though brought within the period of limitations, "if it were shown at trial that the pre-indictment delay in bringing the case caused substantial prejudice to [a defendant's] right to a fair trial, and that the delay was an intentional device to gain tactical advantage over the accused." Marion, 404 U.S. at 324.
It is the defendant's burden to establish prejudice with specific, concrete allegations supported by evidence; only after meeting this burden must the government explain the reasons for the pre-indictment delay. United States v. Sowa, 34 F.3d 447, 449-50 (7th Cir. 1994). The defendant's obligation to show actual and substantial prejudice is an exacting one. "It is not enough . . . to offer some suggestion of speculative harm; rather, the defendant must present concrete evidence showing material harm." United States v. Anagnostou, 974 F.2d 939, 942 (7th Cir. 1992), cert. denied, U.S. 113 S. Ct. 1943, 123 L. Ed. 2d 649 (1993). The prejudice must be concrete and substantial, and defendant is not deprived of due process if he is only "somewhat prejudiced by the lapse of time." United States v. Lovasco, 431 U.S. 783, 796, 52 L. Ed. 2d 752, 97 S. Ct. 2044 (1977).
In the instant case defendant has failed to clear this first hurdle. He has failed to allege specific, concrete allegations of prejudice supported by evidence resulting from the pre-indictment delay. His motion contains only the conclusory allegation that he is prejudiced because his health and eyesight have deteriorated in the two and one-half years pending between the initial investigation and the indictment. Defendant contends that his deteriorating eyesight has impeded his ability to review the documents to be used against him at the trial. Such general allegations are insufficient to support a motion to dismissed based upon a Fifth Amendment due process violation. See, Pharm v. Hatcher, 984 F.2d 783, 787 (7th Cir. 1993) (vague allegations of "faded memory" are insufficient to establish prejudice for the purposes of a due process violation); United states v. Canoy, 38 F.3d 893, 902 (7th Cir. 1994) (delay allegedly causing loss of ability to subpoena exculpatory phone records held insufficient). To the extent defendant's eyesight may require some accommodation in timing or other procedures, the court will ensure that defendant is so accommodated.
The court, therefore, denies defendant's motion to dismiss without prejudice. Defendant may renew his motion at trial and offer evidence to support his allegations of substantial prejudice. See United States v. Baker, 40 F.3d 154, 157 (7th Cir. 1994).
MOTION FOR A DISCLOSURE OF FAVORABLE EVIDENCE
Defendant has moved for the immediate disclosure by the government of all evidence favorable to defendant. In its response to this motion, the government has recognized its obligations under Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963); Giglio v. United States, 405 U.S. 150, 31 L. Ed. 2d 104, 92 S. Ct. 763 (1982); United States v. Agurs, 427 U.S. 97, 49 L. Ed. 2d 342, 96 S. Ct. 2392 (1976); and United States v. Bagley, 473 U.S. 667, 87 L. Ed. 2d 481, 105 S. Ct. 3375 (1985), and has stated that it has turned over all such information currently in its possession. Additionally, the government has agreed to disclose promptly any evidence of which it becomes aware that can conceivably be considered exculpatory, and has further agreed to turn over all relevant impeachment information and Jencks Act and Giglio materials one week prior to trial. Subject to the government's agreement as set forth in its response, defendant's motion is denied.
DEFENDANT'S MOTION FOR DISCLOSURE OF "OTHER ACTS" EVIDENCE
Defendant has moved for an order requiring the government to disclose all similar crimes, wrongs or acts allegedly committed by defendant on which it intends to rely at trial to prove motive, scheme, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Defendant requests this information for evidence that the government intends to use not only in its case in chief, but in cross-examination and rebuttal as well.
The admission of other crimes, wrongs or acts evidence is governed by Fed. R. Evid. 404(b), which provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.