US v. Barken

No. 03-50441 (6-27-05). The 9th affirms a conviction for unlawful transportation and disposal of hazardous material without a permit. the main issue concerns the denial of a motion to dismiss for preindictment delay. The defendant had been prosecuted by a state court five years earlier and that the resolution there covered both civil and criminal aspects, and clean up. The defendant argues that no federal interest was present in this second prosecution. The 9th found this pretty easily. The 9th also found that the defendant didn't meet the requirements for preindictment delay dismissal, notably actual and non-speculative prejudice. The second part requires that such delay offends the notion of due process and fairness. The defendant couldn't meet the prongs of this test. There also wasn't a basis to dismiss under Fed R Crim P 48.