reached an unconstitutionally impermissible threshold, which presents a question of law for this court to resolve based upon the alleged facts. However, that does not include a review of the basis for waiver of the Petite Policy, supra, which appears to be his primary contention under this issue.
The government argues that, to the extent that Alvarez seeks dismissal of the indictment for prosecutorial misconduct, his motion is meritless. The court agrees. "An indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for a trial of the charge on the merits." Costello v. United States, 350 U.S. 359, 363, 76 S. Ct. 406, 409, 100 L. Ed. 397 (1956). See United States v. Boyd, 55 F.3d 239, 241 (7th Cir. 1995) (doctrine of "outrageous government misconduct" does not exist in the Seventh Circuit); United States v. Burke, 781 F.2d 1234, 1235 (7th Cir. 1985); United States v. Schwartz, 787 F.2d 257, 266-267 (7th Cir. 1986); United States v. Roth, 777 F.2d 1200, 1205 (7th Cir. 1985); and United States v. Finley, 705 F. Supp. 1297 (N.D. Ill. 1988), aff'd. 934 F.2d 837 (7th Cir. 1991). See also, United States v. Pedraza, 27 F.3d 1515 (10th Cir. 1994); United States v. Garza-Juarez, 992 F.2d 896 (9th Cir. 1993); and United States v. Mosley, 965 F.2d 906 (10th Cir. 1992).
Assuming, arguendo, that a defendant may raise a claim of government misconduct as a ground for seeking dismissal of an indictment, Alvarez has failed to make any showing to warrant either discovery or a hearing on the issue. Alvarez is not entitled to discovery unless he shows a "colorable basis" for his claim, which is some evidence tending to show the essential elements of the claim which rise beyond the level of unsupported allegations. United States v. Heidecke, 900 F.2d 1155, 1159 (7th Cir. 1990). Where, as here, a defendant has made neither a showing nor an allegation of any impropriety by persons making the decision to waive the Petite Policy and to seek an indictment of him, he has not shown a colorable basis for discovery on a claim of selective or vindictive prosecution. United States v. Goulding, 26 F.3d 656, 661-62 (7th Cir. 1994); United States v. Benson, 941 F.2d 598, 611-13 (7th Cir. 1991).
Additionally, certain authorities relied upon by the Alvarez, Blackledge v. Perry, 417 U.S. 21, 40 L. Ed. 2d 628, 94 S. Ct. 2098 (1974), North Carolina v. Pearce, 395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072 (1969) are inapposite, because they were overruled by Alabama v. Smith, 490 U.S. 794, 109 S. Ct. 2201, 104 L. Ed. 2d 865 (1989). The court finds that the Alvarez's motion is insufficient as a matter of law for purposes of obtaining either discovery or a hearing for alleged "prosecutorial vindictiveness" or "outrageous government conduct." These issues are closed in view of Boyd, Woodard and Wallace, supra.
With regard to the investigation, the decision to conduct a criminal investigation is not subject to judicial review unless invidious criteria such as race or religion infect the decision. Wayte v. United States, 470 U.S. 598, 608, 84 L. Ed. 2d 547, 105 S. Ct. 1524 (1985); Oyler v. Boles, 368 U.S. 448, 456, 7 L. Ed. 2d 446, 82 S. Ct. 501 (1962); United States v. Giannattasio, 979 F.2d 98, 100 (7th Cir. 1992). Such issues are not raised by the Alvarez and are not apparent in the history of this case.
As to any delay of the federal indictment, sometimes preindictment delay can so work to defendant's disadvantage as to be deemed to deny him due process. United States v. Lovasco, 431 U.S. 783, 52 L. Ed. 2d 752, 97 S. Ct. 2044 (1977). However, such delay occurs only when there is a tangible showing of prejudice, such as the loss of a vital defense witness. United States v. Marion, 404 U.S. 307, 325, 30 L. Ed. 2d 468, 92 S. Ct. 455 (1971); United States v. Loud Hawk, 474 U.S. 302, 315, 88 L. Ed. 2d 640, 106 S. Ct. 648 (1986); United States v. Anagnostou, 974 F.2d 939, 942-42 (7th Cir. 1992). The fact that the defense was "somewhat prejudiced" will not do. United States v. Lavasco, 431 U.S. at 796; Wilson v. McCaughtry. 994 F.2d 1228, 1233 (7th Cir. 1993); United States v. Nichols, 937 F.2d 1257, 1261 (7th Cir. 1991). Even concrete prejudice may not be enough. The defendant may have to show that the government's delay was deliberate, that it was trying to wrest a tactical advantage by delay. And the anxiety of uncertainty is not an acceptable substitute for a concrete showing of prejudice, United States v. Anagnostou, 974 F.2d at 942 n. 1, let alone for deliberate governmental misconduct. Nor is added expense. Cobbledick v. United States, 309 U.S. 323, 325, 84 L. Ed. 783, 60 S. Ct. 540 (1940). A federal judge is not authorized to punish the misconduct of a prosecutor by letting the defendant walk, unless the misconduct not only violated the defendant's rights but also prejudiced his defense, and neither condition is satisfied here. United States v. Morrison, 449 U.S. 361, 365, 66 L. Ed. 2d 564, 101 S. Ct. 665 (1981); United States v. Payner, 447 U.S. 727, 739 n. 1, 65 L. Ed. 2d 468, 100 S. Ct. 2439 (1980). United States v. Boyd, 55 F.3d 239, 241 (7th Cir. 1995) (rejecting the doctrine of outrageous government misconduct); United States v. Muthana, 60 F.3d 1217, 1224-25 (7th Cir. 1995) (a sentencing manipulation claim is distinct from a claim of outrageous government conduct.) Alvarez has not made an argument or showing of prejudicial delay or a violation of his rights.
In sum, "a judge in our system does not have the authority to tell prosecutors which crimes to prosecute or when to prosecute them. Prosecutorial discretion resides in the executive, not in the judicial, branch, and that discretion, though subject of course to judicial review to protect constitutional rights, is not reviewable for a simple abuse of discretion." Wayte v. United States, 470 U.S. 598, 608-08, 84 L. Ed. 2d 547, 105 S. Ct. 1524 (1985); United States v. Schwartz, 787 F.2d 257, 266-67 (7th Cir. 1986). Defendant's motion for discovery on the issues raised in the motion to dismiss and for an evidentiary hearing on the motion are denied. Defendant's motion to dismiss the indictment is denied.
IT IS SO ORDERED.
CHARLES RONALD NORGLE, SR., Judge
United States District Court
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