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Case 1:20-cr-00330-PAE Document 204 _ Filed 04/16/21 Page 79 of 239 B. The Defendant Has Failed to Establish That the Government Delayed the Indictment for An Improper Purpose 1. Applicable Law If, and only if, a defendant has established significant, actual prejudice does the inquiry turn to the reason for the delay.*® See, e.g., Pierre-Louis, 2018 WL 4043140, at *5 (“Because Defendant failed to show prejudice, the Court need not even address the second prong.”). The reason for delay violates due process only if it is so extreme that it departs from fundamental notions of “fair play.’” United States v. Lovasco, 431 U.S. 783, 795 (1977). The Supreme Court has “defined the category of infractions that violate ‘fundamental fairness’ very narrowly,” Dowling v. United States, 493 U.S. 342, 352 (1990), and the Supreme Court has “stressed the importance for constitutional purposes of good or bad faith on the part of the Government when the claim is based on loss of evidence attributable to the Government,” Arizona v. Youngblood, 488 U.S. 51, 57 (1988). 16 of the Federal Rules of Criminal Procedure, which provides ample information about the charged crimes and the victims referenced in the Indictment. Additionally, many of the defendant’s requests fall within the scope of the Government’s Giglio and Jencks Act obligations, which the Government intends to produce at the appropriate stage in the litigation, well in advance of trial. °° The defendant invites the Court to engage in a balancing test that weighs the prejudice to the defendant against the Government’s reasons for delay. (Def. Mot. 7 at 5,6 n.4). This Court should reject the defendant’s invitation. The defendant cites United States v. Brand, 556 F.2d 1312, 1317 n.7 (Sth Cir. 1977), for the proposition that a showing of prejudice triggers such balancing. (Def. Mot. 7 at 5). However, the Fifth Circuit subsequently rejected such a balancing test, finding that the “Brand footnote is pure dicta” and instead requiring that defendants demonstrate that the prosecution intentionally caused the delay to gain a tactical advantage over the defendant or “for some other bad faith purpose.” United States v. Crouch, 84 F.3d 1497, 1509, 1512 (Sth Cir. 1996). The defendant also cites that several Circuit courts, namely the Fourth, Seventh, and Ninth Circuits, require such a balancing test. (Def. Mot. 7 at 6n.4). The Second Circuit, however, “has not adopted any balancing test, as the Fourth, Seventh and Ninth Circuits have, and_ its jurisprudence suggests that it would not do so.” United States v. Santiago, 987 F. Supp. 2d 465, 490 (S.D.N.Y. 2013). Several other Circuits have also “refused to adopt a balancing test.” Jd. (collecting cases). This Court should follow that example. 52 DOJ-OGR-00003013