context: Given the specific language in the controlling opinions, it is not surprising that an overwhelming majority of federal Circuit Courts, including our Third Circuit Court of Appeals, have held that Marion/Lovasco requires proof that the government acted intentionally or in bad faith to cause delay.
citation_a.signal: see
citation_a.identifier: 84 F.3d 1497, 1515
citation_a.parenthetical: delay "intentionally undertaken by the government for the purpose of gaining some tactical advantage ... or for some other impermissible, bad faith purpose"
citation_a.sentence: See United States v. Lebron-Gonzalez, 816 F.2d 823, 831 (1st Cir.1987) (“intent by the prosecution to gain a tactical advantage”); United States v. Hoo, 825 F.2d 667, 671 (2nd Cir.1987) (defendant must “show that the government had improperly delayed his prosecution in order to gain a tactical advantage”); United States v. Ismaili, 828 F.2d 153, 167 (3d Cir.1987) (defendant bears burden of proving that “the government intentionally delayed bringing the indictment in order to gain some advantage” over defendant); United States v. Crouch, 84 F.3d 1497, 1515 (5th Cir.1996) (delay “intentionally undertaken by the government for the purpose of gaining some tactical advantage ... or for some other impermissible, bad faith purpose”); United States v. Rogers, 118 F.3d 466, 476 (6th Cir.1997) (defendant must prove delay was “device by the government to gain a tactical advantage”); United States v. Sowa, 34 F.3d 447, 450-52 (7th Cir.1994) (due process “only implicated if the government purposely delayed the indictment to take advantage, tactically, of the prejudice or otherwise acted in bad faith”; government bears burden to provide reasons for delay); United States v. Benshop, 138 F.3d 1229, 1232-33 (8th Cir.1998) (“Absent a showing that the government acted intentionally to harass or to gain a tactical advantage, no due process violation may be found”); United States v. Johnson, 120 F.3d 1107, 1110 (10th Cir.1997) (defendant must prove that “government delayed purposefully in order to gain a tactical advantage”); United States v. Foxman, 87 F.3d 1220, 1223 (11th Cir. 1996) (delay must be “product of a deliberate act by the government designed to gain a tactical advantage”).
citation_b.signal: but see
citation_b.identifier: 904 F.2d 889, 895
citation_b.parenthetical: applying general due process test, rather than more specific test promulgated in Marion and Lovasco
citation_b.sentence: But see Howell v. Barker, 904 F.2d 889, 895 (4th Cir.1990) (applying general due process test, rather than more specific test promulgated in Marion and Lovasco); Jones v. Angelone, 94 F.3d 900, 905 (4th Cir.1996) (noting that Fourth and Ninth Circuits employ “more lenient” standard); United States v. Gilbert, 266 F.3d 1180, 1187 (9th Cir.2001) (first prong of test requires actual prejudice and second prong requires showing that delay, when balanced against prosecution’s reasons for it, offends “fundamental conceptions of justice which lie at the base of our civil and political institutions”); United States v. Doe, 149 F.3d 945, 948 (9th Cir.1998) (same).