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Case 1:20-cr-00330-PAE Document621 Filed 02/25/22 Page 45of51 B. The Defendant Has Failed to Establish that the Government Delayed the Indictment for an Improper Purpose 3. Applicable Law If, and only if, a defendant has established significant, actual prejudice does the inquiry tum 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). 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 an “intentional device to gain [a] tactical advantage over the accused” (quoting Marion, 404 U.S. at 324)); 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.”); United States v. Delacruz, 970 F. Supp. 2d 199, 203 (S.D.N.Y. 2013) (“[The defendant’s] motion to dismiss would nevertheless fail for the independent reason that he has not 44 DOJ-OGR-00009607