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Case 1:20-cr-00330-PAE Document 295 Filed 05/25/21 Page 17 of 26

Accordingly, for the reasons set forth in the Government’s previous briefing (Dkt. No. 204 at 23-36), and for the reasons set forth in the Court’s April Opinion (Apr. Op. at 9-16), the prosecution of Counts Five and Six is timely.

IV. The Defendant’s Motion to Dismiss the S2 Indictment Based on Alleged Improper Pre-Trial Delay Should Be Denied

The defendant contends that the Court should dismiss the S2 Indictment because the Government’s delay in bringing the charges violates her due process rights. (Def. Mot. at 22). In making this motion, the defendant asks the Court to provide such relief for the “same reasons discussed in her prior motion” (Def. Mot. at 22)—reasons this Court already considered and rejected. This Court evaluated the defendant’s speculative and baseless arguments and concluded that the defendant could not meet the “stringent standard” necessary to prevail on a claim that any alleged pre-indictment delay violates her due process rights. (Apr. Op. at 17). “To prevail on a claim that pre-indictment delay violates due process, a defendant must 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.” (Apr. Op. at 17 (citing United States v. Cornielle, 171 F.3d 748, 751 (2d Cir. 1999))).6

As to the element of actual and substantial prejudice, the Court found that the defendant did “not make the strong showing of prejudice required to support” her claim. (Apr. Op. at 17). The Court concluded that the defendant “failed to establish actual prejudice from the Government’s delay in bringing charges,” rejecting the defendant’s “highly speculative” arguments that the death of certain potential witnesses, failing memories, or lost records prejudiced

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6 Moreover, “[w]here an indictment is brought within the statute of limitations, there is a presumption that the [defendant] was not prejudiced.” Van Stuyvesant v. Conway, No. 03 Civ. 3856 (LAK), 2007 WL 2584775, at *42 (S.D.N.Y. Sept. 7, 2007) (citation and internal quotation marks omitted); see also Apr. Op. at 17. As this Court previously found, and as detailed above, the “applicable statute of limitations” does not “bar[] the charges here.” (Apr. Op. at 18).

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