this case, Aleman's prosecution for the Reitinger murder began shortly after he was formally charged with the offense in 1993. Similarly, after his 1977 acquittal, Aleman was neither in custody nor charged with the Logan murder until the present prosecution. Thus, the state court correctly concluded that Aleman has not made out a Sixth Amendment speedy trial violation. Aleman I, 1994 WL 684499, at *18.
Aleman's Fifth Amendment due process claim fares no better. The Due Process Clause protects against oppressive pre-indictment delay. United States v. Lovasco, 431 U.S. 783, 789, 52 L. Ed. 2d 752, 97 S. Ct. 2044 (1977); Marion, 404 U.S. at 324. To prove a constitutional violation, Aleman must first show actual and substantial prejudice resulting from the delay. United States v. Canoy, 38 F.3d 893, 902 (7th Cir. 1994). If Aleman satisfies this burden, the State must show the reasonableness of the delay. Id. The court then balances the State's reasons for delay against the prejudice suffered by Aleman in determining whether Aleman has been denied due process. Id.
The mere assertion of an inability to recall the events in question and a resulting difficulty in preparing for trial is not sufficient to establish actual and substantial prejudice. Id. Aleman has not provided any specific evidence of prejudice. Thus, Aleman's position is without merit for this reason alone.
Moreover, the State provides ample reason for the delay in prosecuting Aleman for the Logan and Reitinger murders. With respect to the Logan murder, part of the delay is attributable to Aleman's own actions. Namely, the State did not become aware of Aleman's bribery of Judge Wilson until long after Aleman's acquittal in 1977. In addition, the witnesses who could confirm the bribery did not become available to the State until 1993, which is when the State began its reprosecution of Aleman. Aleman asserts that one of the State's witnesses testified on behalf of the State in 1990. However, Aleman fails to refute the State's assertion (and the Illinois courts' finding) that both witnesses were not available to testify in this particular case until 1993. The Illinois courts correctly concluded that the State's delay in prosecuting Aleman for the Logan murder was not unreasonable in light of the previous unavailability of the witnesses who could prove Aleman bribed Judge Wilson.
With respect to the Reitinger murder, the State did not have enough evidence to indict Aleman until Vince Rizza became available as a witness in 1993. While Reitinger's murder was a predicate offense in Aleman's 1990 federal racketeering prosecution, the federal prosecutor apparently recognized the weakness of this charge at the time; the charge was excluded from Aleman's plea agreement.
Aleman responds by combining his Fifth Amendment due process and Sixth Amendment speedy trial claims. He argues that the pre-indictment delay here is per se unconstitutional in the same way a similar post-arrest or post-charge delay would be unconstitutional. No court has recognized the constitutional interpretation Aleman suggests. Thus, the Illinois courts correctly rejected Aleman's argument. In short, the State has not violated Aleman's Fifth or Sixth Amendment rights by seeking a prosecution in the Reitinger and Logan murders after a lengthy delay.
VII. FAILURE TO IMMUNIZE WITNESS
Finally, Aleman contends the evidentiary hearing as to the bribery of Judge Wilson violated his due process rights because John Doe, the only living occurrence witness other than Aleman, was denied immunity. Aleman claims John Doe's testimony would have been entirely exculpatory.
The central problem with Aleman's argument is that John Doe sought immunity from a pending federal prosecution. The State of Illinois has no authority to grant immunity from a federal prosecution. See generally, Abbate v. United States, 359 U.S. 187, 3 L. Ed. 2d 729, 79 S. Ct. 666 (1959). Moreover, the State did not threaten to prosecute John Doe for a state offense or use any other similar tactic to prevent John Doe from testifying. Thus, United States v. Herrera-Medina, 853 F.2d 564 (7th Cir. 1988), is inapplicable. In short, Aleman's due process rights were not violated by the State's failure to afford John Doe immunity.
Harry Aleman's petition for habeas corpus is denied. Aleman's motion to stay Circuit Court criminal proceedings and to quash the execution of the State's writ of habeas corpus ad prosequendum is moot.
Suzanne B. Conlon
United States District Judge
May 5, 1997