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Case 1:20-cr-00330-PAE Document621 Filed 02/25/22 Page 36of51 The Second Circuit standard for pre-indictment delay imposes a heavy burden on the defendant to show “both that the Government intentionally delayed bringing charges for an improper purpose and that the delay seriously damaged the defendant’s ability defend against the charges.” (Dkt. No. 207 at 17 (citing Cornielle, 171 F.3d at 752)). The burden for proving both prongs of the standard rests squarely on the defendant. United States v. Scarpa, 913 F.2d 993, 1014 (2d Cir. 1990); United States v. Rubin, 609 F.2d 51, 66 (2d Cir. 1979); United States v. Ricco, 549 F.2d 264, 272 (2d Cir. 1977). The burden is so heavy that it is rarely met by a defendant. See DeMichele v. Greenburgh Centr. Sch. Dist. No. 7, 167 F.3d 784, 790-91 (2d Cir. 1999) (“[W]hile the [Supreme] Court may not have shut the door firmly on a contention that at some point the Due Process Clause forecloses prosecution of a claim because it is too old, at most the door is barely ajar.”). Substantial prejudice is just that—substantial, actual, non-speculative prejudice. See United States v. Birney, 686 F.2d 102, 105-06 (2d Cir. 1982) (a defendant’s “proof of prejudice must be definite and not speculative”); see also United States v. Henderson, 337 F.3d 914, 920 (7th Cir. 2003) (prejudice sufficient to warrant dismissal for pre-indictment delay must be “actual and substantial” and “specific, concrete, and supported by evidence”). Prejudice in this context refers to “actual prejudice to the defendant’s right to a fair trial.” United States v. Elsbery, 602 F.2d 1054, 1059 (2d Cir. 1979). It is well-established that the mere loss of evidence or of witnesses, by death or otherwise, without more, is insufficient. See, e.g., United States v. Snyder, 668 F.2d 686, 689 (2d Cir. 1982) (death of a defense witness three years before indictment insufficient prejudice); United States v. King, 560 F.2d 122, 130-31 (2d Cir. 1977) (death of 35 DOJ-OGR- 00009598