The opinion of the court was delivered by: The Honorable Manuel Real United States District Judge
[Proposed] ORDER DENYING DEFENDANT'S MOTION TO DISMISS DUE TO PRE-INDICTMENT DELAY (Doc. No. 614) AND FINDINGS THERETO
Having heard from plaintiff, the United States of America, by and through its counsel of record, the United States Attorney for the Central District of California, and defendant JOSE ALFARO, by and through the authorized representative of his counsel of record, James Cooper, at a hearing held before this Court on September 16, 2010, and good cause appearing, the Court hereby FINDS AS FOLLOWS
1. The Court read and considered Jose Alfaro's Motion for to Dismiss due to Pre-Indictment Delay (Doc. No. 614), and the government's opposition thereto.
2. The Court, after carefully considering the pleadings, declarations and documents filed by the parties, as well as the argument presented at the hearing, orally denied the defendant's Motion to Dismiss. This Order will supplement the Court's oral ruling denying the motion. In connection with this Order, the Court makes the following Findings of Fact and Conclusions of Law.
3. On September 16, 2010, this Court held a hearing on the motion. Defendant appeared in person with his counsel of record. After affording the parties opportunity for argument, the Court denied defendant's Motion to Dismiss. The Court considered United States v. Spark, 87 F.3d 276 (9th Cir. 1996) and finds that it is extraordinarily difficult to show prejudice arising from a delay in the indictment that falls within the applicable statute of limitations.
4. To establish a due process violation due to pre-indictment delay, defendant Alfaro must show that the delay caused him actual prejudice, and that the government's conduct violates the concept of justice. United States v. Lovasco, 431 U.S. 783 (1977). The Court further considers United states v. Moran, 759 F.2d 779 (9th Cir. 1985) and finds that the defendant must show actual prejudice that resulted from the delay, and put forth evidence that is definite and not speculative.
5. The Court finds that the prejudice alleged by the defendant is speculative and not the type of concrete prejudice that give rise to a due process violation.
6. The Court finds that the defendant has not shown any actual prejudice.
7. The Court also finds that the speculative prejudice alleged by the defendant does not stem from any alleged delay, but rather from the government's decision to file separate cases.
THEREFORE, FOR GOOD CAUSE SHOWN: IT IS HEREBY ORDERED that defendant Jose Alfaro's Motion to Dismiss for Pre-Indictment Delay is denied.
Kevin L. Rosenberg Department ...