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

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

In a conspiracy case such as this, the statute of limitations does not expire until five years after the last overt act in furtherance of the conspiracy has been completed. See United States v. Gregory, No. 97-4090, 1998 WL 390176 at 6 (4th Cir. 1998).

"A defendant's membership in the conspiracy is presumed to continue until he withdraws from the conspiracy by affirmative action." United States v. West, 877 F.2d 281 (4th Cir. 1989). In order to establish withdrawal or abandonment, the defendant must show that he acted to "defeat or disavow the purpose of the conspiracy." "Mere cessation" of conduct in furtherance of the conspiracy is in sufficient to make this showing. United States v. Walker, 796 F.2d 43, 49 (4th Cir. 1986).

Assuming, arguendo, that the Government would be unable to establish that Polston actively participated after mid-April of 2002, a reasonable fact finder could nonetheless conclude that he failed to withdraw from or abandon the conspiracy before the Houston suppliers were arrested. Polston failed to present evidence that he withdrew from the conspiracy before the arrests took place. Accordingly, Polston's argument that the indictment against him was untimely was rejected.

Polston also argued that the conspiracy count should be dismissed due to excessive pre-indictment delay. According to Polston, the Government improperly gained a strategic advantage by waiting nearly four years after identifying him as a suspect to file the indictment.

During this period, Polston stated that he experienced several wounds from several bullet shots to the head, which caused debilitating memory loss. As a result of these injuries, Polston asserted that he no longer recalls much of what happened during that period. Accordingly, Polston argued that the Government's pre- indictment delay amounts to a denial of due process. Polston's claims were insufficient to warrant dismissal of the indictment.

It is well-established that "due process is not violated simply because the defendant is indicted after a substantial [] delay." United States v. Stinson, 594 F.2d 982, 984 (4th Cir. 1979).

A constitutional violation does occur, however, "when the delay actually prejudices the conduct of the defense and the government intentionally delayed to gain some tactical advantage over the defendant or to harass him." Id.

Under the 4th Circuit's iteration of the test in United States v. Marion, 404 U.S. 307, 325 (1971), a defendant seeking dismissal on grounds of pre-indictment delay must first show he was actually prejudiced by the Government's delay. See, e.g., Jones v. Angelone, 94 F.3d 900, 904 (4th Cir. 1996).

In order to make this showing, the defendant must demonstrate that he has been "meaningfully impaired in his ability to defend against the [criminal] charges to such an extent that the disposition of the [] proceedings was likely affected." Id.

Polston asserted that he was prejudiced by the Government's delay because he suffered acute memory loss as a result of the gunshot wounds in 2003. The case law clearly indicates, however, that the loss or impairment of memory does not amount to actual prejudice for purposes of the Due Process Clause, United States v. Lynch, No. 94- 5530, 1995 WL 325670 at 3 (4th Cir. 1995). Polston's loss of memory was insufficient to establish actual prejudice.