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Case 1:20-cr-00330-PAE Document 204 _ Filed 04/16/21 Page 80 of 239 The Second Circuit has clearly held that a defendant seeking the dismissal of an indictment filed within the statute of limitations must establish that the Government acted intentionally, deliberately, or with some strategy, and that the Government used that delay to gain a tactical advantage over the defendant. See, e.g., Cornielle, 171 F.3d at 752 (delay must be “intentional device to gain [a] tactical advantage over the accused”); see also United States v. Alameh, 341 F.3d 167, 176 (2d Cir. 2003) (“To show unjustifiable conduct, a defendant must demonstrate that the government has intentionally used delay to gain unfair tactical advantage.”); see also United States v. Delacruz, 970 F. Supp. 2d 199, 203 (S.D.N.Y. 2013) (“Delacruz’s motion to dismiss would nevertheless fail for the independent reason that he has not made any showing that the preindictment delay was an intentional device designed by the Government to gain a tactical advantage.”); United States v. Martinez, No. 94 Cr. 219 (RPP), 1995 WL 10849, at *4 (S.D.N.Y. Jan. 12, 1995) (“In order to establish improper delay by the Government in filing an indictment, a defendant must show that the delay was the result of an intentional device of the Government to gain tactical advantage over the accused.” (internal quotation marks and alterations omitted) (citing United States v. Hoo, 825 F.2d 667, 671 (2d Cir. 1987))). Indeed, some version of the phrase “deliberate device” and “tactical advantage” is found in nearly every Second Circuit decision on the issue. See, e.g., Alameh, 341 F.3d at 176 (“intentionally used delay to gain unfair tactical advantage”); Cornielle, 171 F.3d at 752 (requiring “intentional device” to gain “tactical advantage”); Lawson, 683 F.2d at 694 (delay not “engineered by the government for an improper purpose, such as gaining a tactical advantage’’); Snyder, 668 F.2d at 689; United States v. Watson, 599 F.2d 1149, 1157 n.5 (2d Cir. 1979); United States v. Tanu, 589 F.2d 82, 89 (2d Cir. 1978); United States v. Laurenti, 581 F.2d 37, 40 n.11 (2d Cir. 1978); United States v. Hillegas, 578 F.2d 453, 460 (2d Cir. 1978). 53 DOJ-OGR-00003014