United States of America, Plaintiff-appellee, v. Sherry Winkel, Defendant-appellant, 960 F.2d 150 (6th Cir. 1992)Annotate this Case
Before SUHRHEINRICH and SILER, Circuit Judges, and BATTISTI,* District Judge.
Sherry Winkel worked as a customer service representative/assistant manager for the National Bank of Detroit. Her duties included assisting elderly customers in various bank transactions, particularly deposits and withdrawals. In 1987, she made a series of withdrawals from the accounts of several of these customers, purporting to act on the customer's behalf but in fact appropriating the funds to her own use. The bank eventually detected these withdrawals and terminated Winkel's employment. An indictment was filed against Winkel in February 1988, but it was dismissed the following March. A new indictment was brought in May 1990, and Winkel was convicted on six counts of embezzlement. Winkel appeals her conviction, claiming excessive pre-indictment delay.
The rule in this circuit is clear: to obtain a dismissal for pre-indictment delay the defendant must prove both (1) the government purposely delayed in order to gain a tactical advantage and (2) substantial prejudice at trial resulted from the delay. E.g., United States v. Lash, 937 F.2d 1077, 1088 (6th Cir. 1991); United States v. Duncan, 763 F.2d 220, 222 (6th Cir. 1985). Winkel does not allege that the pre-indictment delay was purposeful, and the record is completely void of evidence that the delay was taken purposefully. Therefore the district court properly denied Winkel's motion to dismiss. See United States v. Greene, 737 F.2d 572, 575 (6th Cir. 1984) (no need to consider prejudice where defendant fails to show purposeful delay).
The Honorable Frank J. Battisti, District Judge, United States District Court for the Northern District of Ohio, sitting by designation