First, I apologize for my recent lack of posting. It has been a little hectic. I also apologize because this post will be quite brief—again, just a tad hectic.
This week, we have United States v. Schaffer, No. 09–3053 (6th Cir. Nov. 12, 2009). Panel of Chief Judge Batchelder, and Judges Daughtrey and Van Tatenhove (E.D. Ky.). Defendant caught in government sting operation—conspiracy to obtain military secrets and laser missile technology from a DOD contractor. Events began in July 2002. Indictment returned February 27, 2008. Defendant brought several pre-trial motions, including a motion to dismiss. The district court dismissed the portion of the indictment related to interstate transportation of stolen property, but otherwise denied the motion to dismiss. The defendant entered a conditional plea.
The Court of Appeals affirmed the district court’s decision. I will hit on the sections related to pre-indictment delay and entrapment. To sustain a pre-indictment-delay claim (under the 5th Amendment), a defendant must show substantial prejudice to his or her right to a fair trial and that the delay was intentional and used by the government to gain a tactical advantage. Courts will not presume prejudice. Here, the defendant failed to make a showing of actual prejudice.
In terms of entrapment, it is seldom appropriate for a district court to grant a motion to dismiss based on the defense. Defense generally goes to defendant’s state of mind, so it is an evidentiary question. District court here correctly concluded that issue could not be resolved until after evidence presented at trial. Question for jury—not court.