Opinion
No. 04 Cr. 858 (LMM).
August 1, 2005
MEMORANDUM AND ORDER
Both the government and defendant move for reconsideration of the Court's Memorandum and Order of May 24, 2005, familiarity with which is assumed. Reconsideration is granted to both the government and defendant, and, as to each, on reconsideration, the Court adheres to its original determination.
While it is no doubt true (and is not at all surprising) that the usual prejudice underlying a claim of the violation of the due process right to a speedy trial is in "the loss of documentary evidence or the unavailability of a key witness,"United States v. Cornielle, 171 F.3d 748, 752 (2d Cir. 1999) (citations omitted) category, none of the cases cited by the parties say that that is the only sort of prejudice to be considered. In Cornielle, the Court of Appeals thought it to the point to discuss the prejudice there claimed — "the situation where a defendant insists he has rehabilitated himself after release from prison on state charges, and that he justifiably relied on no further charges being brought because of the passage of time" (id.) — even though, after careful discussion, it rejected it.
On the present record, there appears no reason for the delay in indicting defendant until over two years after the evidence was in hand and defendant had served his Eastern District of North Carolina sentence other than to subject him to greater punishment than the maximum guideline sentence that could have been imposed in that district even had the New York City ammunition been proved, and which sentence was, in fact, imposed. The Court is not persuaded that that cannot as a matter of law be a due process violation.
The government has not suggested that any of the reasons set forth by the Supreme Court in United States v. Lovasco, 431 U.S. 783, 792-95 (1977), for not filing charges once sufficient evidence has been assembled, apply here.
All of the parties' other arguments have been adequately addressed in the May 24, 2005 Memorandum and Order.
Chambers will contact counsel to arrange a date.
SO ORDERED.