The opinion of the court was delivered by: ROBERT W. GETTLEMAN
On May 4, 1995, the special March 1995 grand jury returned an indictment against defendant Marshall Schoeneman, charging him with 43 counts of submitting false "petitions for non-immigrant worker" to the Immigration and Naturalization Service ("INS"). Defendant has filed four motions: (1) to dismiss the indictment; (2) for immediate disclosure of favorable evidence; (3) for production of Rule 404(b) material; and (4) for leave to file additional pretrial motions. For the reasons set forth below, all of defendant's motions are denied.
Between February and December 1992, the INS conducted an undercover investigation of defendant. As part of that investigation, the INS applied for, received, and on December 9, 1992, executed a search warrant as to defendant's office. On December 8, 1992, a criminal complaint was filed against defendant and others (case No. 92 CR 1051), charging him with conspiracy to defraud the United States in connection with the participation in a "sham marriage" of an applicant for permanent resident alien status. Defendant was arrested and released on bond. That complaint was subsequently dismissed on motion of the government. Nothing happened thereafter, until May 4, 1995, when an indictment was returned in that case, charging additional defendants and adding counts.
An indictment was also returned in the instant case on May 4, 1995, charging defendant with 43 counts of submitting false petition for non-immigrant worker to the INS. These charges arise out of the same investigation as the sham marriage case, and apparently are premised in substantial part upon documents recovered from the search of defendant's office in December 1992.
Defendant has moved to dismiss the indictment, arguing that the delay between the execution of the search warrant in December 1992 and the return of an indictment on May 4, 1995, has prejudiced his ability to adequately defend the case. Curiously, defendant relies on Barker v. Wingo, 407 U.S. 514, 33 L. Ed. 2d 101, 92 S. Ct. 2182 (1972), arguing that the delay violated his Sixth Amendment right to a speedy trial. It is well settled, however, that the Sixth Amendment right to a speedy trial does not arise until charges are pending. United States v. Koller, 956 F.2d 1408, 1413 (7th Cir. 1992). Periods of delay prior to arrest are irrelevant to any Sixth Amendment analysis. Id. Similarly, any delay after the government 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 ...