![]() If we are to grant the Government the benefit of a tolling of the limitations period, then we may properly impose a corresponding burden, namely, the risk of dismissal if the defendant has been prejudiced. ![]() But in effectuating the policies of the statute of limitations we cannot limit our concern to prejudice shown clearly to have been caused by the delay after filing. 1978) (Oakes, J., concurring) (post-indictment delay) United States v. ![]() It is true that in evaluating claims of prejudice due to alleged unconstitutional pre- and post-indictment delay, we have not considered prejudice to a defendant not arising during or as a result of the period of alleged delay. By contrast, our test for sealed indictments requires dismissal only if the defendant can show substantial, actual prejudice. Indeed, in the ordinary case where the indictment is never sealed but is returned just outside the limitations period, we do not even inquire into prejudice but simply dismiss the indictment. It is not "anomalous" that if the sealed indictment were filed one day after the limitations period had expired, the indictment would be dismissed, even though it would not necessarily be dismissed if filed one day earlier. What the example does show is that the statute of limitations embodies a strict policy against delay that might prejudice the defendant. But we do not agree that such an example is an "anomaly" that casts doubt upon our reasoning. For example, if a sealed indictment is filed one day before the statute has run and unsealed one day after, the indictment can be dismissed if the defendant suffered substantial prejudice even before the sealed indictment was returned. The Government argues that considering prejudice occurring before the limitations period has expired leads to anomalous results. In such a situation, as in the ordinary case of an untimely indictment, even a strong prosecutorial interest should not toll the statute. Accordingly, prosecution should be barred if the defendant can show "substantial, actual prejudice" arising at any time prior to the post-limitations unsealing of an indictment. ![]() But the Government is not relieved of the statutory recognition that actual commencement of prosecution after passage of the limitations period may prejudice the defendant. In such a case, we do not give force to the presumption and, if the defendant does not demonstrate actual prejudice, we tolerate delay justified by a legitimate prosecutorial need in unsealing the indictment. There is a narrow exception to this rule where the prosecution has delayed beyond the limitations period in unsealing a timely indictment. at 464, and so we bar prosecution-however strong the prosecutorial interest may be. Ordinarily, when the limitations period has passed, "there is an irrebuttable presumption that a defendant's right to a fair trial would be prejudiced," United States v. ![]()
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