Legal Opinions - U.S. District Court, Maryland: January 28, 2008

Daily Record, The (Baltimore), Jan 28, 2008

Polston failed to demonstrate that dismissal is warranted on grounds of insufficient evidence, limitations, or excessive delay. Polston's motion to dismiss the indictment was denied.

COMMENTARY: Nelson asserted that the indictment against him should be dismissed on account of the Government's delay. Nelson's claim of prejudice, however, was based on a different theory.

According to Nelson, the Government's delay in filing the indictment preventing him from conducting his own tests on the automobiles seized from his residence. Nelson also asserted that, as a result of the Government's delay, he is no longer able to procure phone records in support of his defense.

Neither of Nelson's claims was sufficient to establish prejudice. Nelson remained able to inspect the ion scan samples obtained from the vehicles, and he may cross-examine the DEA analysts who conducted the tests. Furthermore, Nelson will have opportunity to contest the probative value of the samples at trial.

In addition, Nelson failed to present evidence that either the phone records or his vehicles would have contained exculpatory evidence. Nelson's defense was not meaningfully impaired by the government's delay in filing the present indictment. Nelson's motion to dismiss on grounds of excessive delay was denied.

Nelson's motion to adopt the arguments contained in Polston's motion to dismiss was granted. The remaining motions were denied.

PRACTICE TIPS: The Government was under no obligation to preserve the vehicles and/or phone records forever, just in case the defendant wanted to conduct his own inspections or tests. "[U]nless a criminal defendant can show bad faith on the part of the police, failure to preserve useful evidence does not constitute a denial of due process of the law. See, e.g., Arizona v. Youngblood, 488 U.S. 54-55 (1988).