431 U.S. 783 (1977)
On March 6, 1975, the United States indicted respondent Eugene Lovasco for possessing eight firearms stolen from the United States mails and for dealing in firearms without a license.1 The offenses were alleged to have occurred between July 25 and August 31, 1973, more than 18 months before the indictment was filed.2
A Postal Inspector’s report prepared one month after the crimes stated that Lovasco had admitted to Government agents that he had possessed and then sold five of the stolen guns.3 The report also stated that the agents had been unable to confirm or refute Lovasco’s claim that he had found the guns in his car when he returned to it after visiting his son, a mail handler, at work.4 A stipulation indicated that little additional information concerning the crimes was uncovered in the 17 months following the preparation of the Inspector’s report.5
Lovasco moved to dismiss the indictment due to the delay.6 At a hearing on the motion, Lovasco testified that he had lost the testimony of two material witnesses due to the delay.7 The first witness, Tom Stewart, died more than a year after the alleged crimes occurred.8 The second witness, Lovasco’s brother, died in April 1974. Lovasco testified that his brother was present when he called Stewart to secure the guns and witnessed all of his sales.9
The District Court found that by October 2, 1973, the Government had all the information relating to Lovasco’s alleged commission of the offenses.10 The 17-month delay had not been explained or justified. The court also found that as a result of the delay Lovasco had been prejudiced by reason of the death of Tom Stewart, a material witness on his behalf, and dismissed the indictment.11
The Court of Appeals affirmed the dismissal of the possession counts after accepting the Government’s representation that the delay was motivated by a desire to investigate whether Lovasco’s son was responsible for the thefts.12 The Supreme Court granted certiorari to review the case.13
Whether the Constitution requires that an indictment be dismissed because of delay between the commission of an offense and the initiation of prosecution?14
The Due Process Clause of the Fifth Amendment provides limited protection against oppressive preindictment delay. Proof of actual prejudice is a necessary but not sufficient element of a due process claim. The due process inquiry must consider the reasons for the delay as well as the prejudice to the accused. Investigative delay, unlike delay undertaken solely to gain tactical advantage over the accused, does not violate fundamental conceptions of justice.15
No. Applying the rule to the established facts, the delay in this case was investigative in nature rather than for tactical advantage.16 The Government sought to identify additional participants in the offenses, specifically focusing on whether Lovasco's son was responsible for the thefts from the mails.17 Although the District Court found the delay unnecessary and unreasonable and that prejudice resulted from the death of witness Tom Stewart, the reason for the delay was to continue the investigation, which is permissible under due process. The loss of witnesses' testimony constitutes prejudice, but because the delay served a legitimate investigative purpose, it does not violate the Due Process Clause.18
The Court of Appeals erred in dismissing the indictment based on its disagreement with the prosecutor's judgment on when to seek charges.19
The Constitution does not require dismissal of the indictment due to the preindictment investigative delay.20
Related opinions on this issue
Justice Stevens dissented.21 He argued that the Court's determination that the Government postponed action to await the results of additional investigation is not supported by the record developed in the District Court.22 The concurrent findings of fact by the District Court and Court of Appeals established that the delay was unexplained and prejudicial.23
The prosecutor's power to postpone charges to suit his own convenience should be constrained by the Constitution to honor the right to speedy justice.24 Stevens would affirm the judgment of the Court of Appeals.25