Full opinion text
LECHNER, District Judge. This is a criminal action which originated on 16 June 1989 when an indictment (the “Indictment”) was returned. Defendants Richard O. Bertoli (“Bertoli”), Leo M. Eisenberg (“Eisenberg”) and Richard S. Cannistraro (“Cannistraro”) were named in the Indictment. On 29 September 1989 a six count superseding indictment (the “Superseding Indictment”) was returned against Bertoli, Cannistraro and Eisenberg. On 21 January 1992 the Government returned an eight count second superseding indictment (the “Second Superseding Indictment”) against Bertoli and Cannistraro (collectively, the “Defendants”). Count One of the Second Superseding Indictment charges the Defendants with racketeering activities involving Monarch Funding Corporation (“Monarch”) in violation of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961 et seq. Count Two charges the Defendants with conspiracy to commit racketeering in violation of RICO. Count Three charges the Defendants with conspiracy to obstruct justice in violation of 18 U.S.C. § 371. Counts Four through Seven charge Bertoli with obstruction of justice in violation of 18 U.S.C. § 1503. Count Eight charges the Defendants with conspiracy to commit securities fraud in violation of 18 U.S.C. § 371. Eisenberg is not a defendant in the Second Superseding Indictment although he is listed as a co-conspirator. Currently before the court are the pretrial motions of the Defendants (1) to dismiss the Second Superseding Indictment for prosecutorial misconduct, or in the alternative, for discovery of grand jury materials (the “Misconduct Motion”), (2) to dismiss the Second Superseding Indictment for pre-indictment delay, for selective prosecution and for vindictive prosecution (the “Pre-Indictment Delay Motion”), (3) to preclude the introduction of the Cayman Islands Depositions (the “Cayman Islands Motion”) at trial, (4) to dismiss Counts One and Two of the Second Superseding Indictment on the ground that the RICO Counts are barred by the statute of limitations (the “Statute of Limitations Motion”), (5) to dismiss Counts One, Two and Eight of the Second Superseding Indictment for failure to state an action for securities fraud (the “Securities Fraud Motion”), (6) to dismiss Count Seven (the “Obstruction of Justice Motion”), (7) to compel discovery pursuant to Fed.R.Crim.P. 16 (the “Motion to Compel Discovery”) and (8) for the court to consider the pretrial motions filed in connection with the Superseding Indictment as filed following the Second Superseding Indictment (the “Motion re First Pretrial Motions”) (collectively, the “Second Pretrial Motions”). For the reasons set forth below: the Misconduct Motion is denied; the Pre-Indictment Delay Motion is denied; the Statute of Limitations Motion is denied; the Securities Fraud Motion is denied and the Obstruction of Justice Motion is denied. The Motion to Compel Discovery is denied; however, Bertoli is given leave to continue to inspect documents in possession of the Government. The Cayman Islands Motion is also denied; however, Bertoli is given leave to cross-examine witnesses with respect to the Second Superseding Indictment and to recross individuals not previously recrossed and Cannistraro is given leave to cross-examine individuals deposed in the Cayman Islands. Facts As to Count One, the Second Superseding Indictment states Monarch, the enterprise, was a securities brokerage firm in New York City, New York which was engaged in the business of underwriting, purchasing and selling securities primarily traded in the over-the-counter markets. Second Superseding Indictment, Count One (“Count One”), 112. Count One states Bertoli was the former president of a brokerage firm, not named in the Second Superseding Indictment, and controlled and had a beneficial interest in several nominee brokerage accounts maintained at Monarch. Id., II3. These nominee brokerage accounts included accounts in the names of family members and various Cayman Islands individuals and entities. Id. Count One states Cannistraro was a securities research analyst with Wood Gundy, Inc. (“Wood Gundy”), a brokerage firm located in New York City, New York. Id., H 4. It states Cannistraro controlled and had a beneficial interest in nominee brokerage accounts maintained at Monarch. Id. These nominee brokerage accounts included accounts in the names of relatives and Cayman Islands individuals and entities. Id. Count One states that Eisenberg was the owner and president of Monarch. Id., ¶ 5. It states Eisenberg controlled and had a beneficial interest in nominee brokerage accounts maintained at Monarch, which included accounts in the names of various Cayman Islands individuals and entities. Id. Count One describes the pattern of racketeering engaged in by the Defendants and others, including Eisenberg, as consisting of predicate acts of mail fraud, wire fraud, interstate transportation of money taken by fraud, securities fraud and obstruction of justice. Id., 119. Count One charges that from about January 1982 to the present, in the District of New Jersey and elsewhere, the Defendants and Eisenberg participated in the affairs of Monarch through a pattern of racketeering activity, the object of which was to “use Monarch as a vehicle to engage in fraudulent securities trading practices and thereby obtain money and other things of value for the [Defendants____” Id., 11117-8. It identifies the victims of the racketeering activity as the purchasers and sellers of securities recommended and traded by the Defendants and Eisenberg. Id., II8. It alleges the means and methods of conducting the conspiracy included “attempts to conceal and cover-up their fraudulent activities.” Id., 119. Count One charges the Defendants with engaging in racketeering activity through the execution of seven separate fraudulent trading or concealment schemes involving the following securities: Astrosystems, Inc. (“Astrosystems”); Nature’s Bounty, Inc. (“Nature’s Bounty”); Liquidation Control, Inc. (“LCI”); Toxic Waste Containment, Inc. (“Toxic Waste”) and High Technology Capital Corp. (“High Tech”). Id., 119. As to the scheme involving Astrosystems (the “Astrosystems Scheme”), Count One states that between approximately October 1982 and August 1983, in the District of New Jersey and elsewhere, the Defendants and Eisenberg established nominee brokerage accounts at Monarch and elsewhere to purchase Astrosystems securities from the investing public with the knowledge that favorable research reports were to be prepared by Cannistraro and disseminated by Wood Gundy to the investing public. Id., II12. Count One charges the Defendants and Eisenberg made such purchases with the expectation that the research reports would cause an increase in the price of Astrosystems securities. Id. Count One identifies four such reports transmitted between November 1982 and December 1982 recommending the purchase of Astrosystems securities. Id., II13. It charges that the reports were false and misleading because they did not disclose that the Defendants and Eisenberg “had purchased Astrosystems securities based upon advance knowledge of the reports, and intended to profit on the sale of these securities once the dissemination of the reports had caused the price of Astrosystems securities to rise.” Id., If 14. Count One also states that as part of the Astrosystems Scheme, an article recommending the purchase of Astrosystems securities was prepared by Cannistraro and disseminated to the investing public in an industry newsletter, “Portfolio Letter,” dated 14 March 1983 (the “14 March 1983 Portfolio Letter”). Id., 1115. It states this article did not disclose the fraudulent trading scheme. Id. Count One further states the Defendants and Eisenberg subsequently sold their Astrosystems securities without disclosing the fraudulent trading scheme and obtained profits totalling at least $147,000 from such sale. Id., ¶ 16. Count One identifies, by date and content, eight instances of mail fraud in violation of 18 U.S.C. §§ 1341-2, two instances of wire fraud in violation of 18 U.S.C. § 1343 and one instance of securities fraud in violation of section 10(b) (“Section 10(b)”) of the Securities Exchange Act of 1934 and rule 10b-5 (“Rule 10b-5”) 17 C.F.R. § 240.10b-5 15 U.S.C. § 78j, all perpetrated by the Defendants and Eisenberg in executing the Astrosystems Scheme. Id., 111117-19. With respect to the second scheme (the “Nature’s Bounty Scheme”), Count One states that from approximately December 1982 to March 1983 the Defendants and others, including Eisenberg, engaged in a scheme involving the securities of Nature’s Bounty. Id., 111120-21. It states that in or about January 1983, the Defendants and Eisenberg used nominee and other brokerage accounts at Monarch and elsewhere, including a brokerage firm trading account at Monarch (the “Monarch Trading Account”), Euro Bank Corp.’s (“Euro Bank”) account at Monarch and a trust account in the name of Berco (the “Berco Trust”) at Swiss Bank & Trust Corporation Limited, Grand Cayman Island (“Swiss Bank”), “to purchase Nature's Bounty securities from the investing public, with the knowledge that favorable research reports were to be prepared by [Cannistraro] and disseminated by Wood Gundy to the investing public, and with the expectation that the reports would cause the price of Nature’s Bounty securities to rise.” Id., H 21. Count One identifies two reports transmitted in January 1983. Id., II22. It states they were false and misleading in that they “failed to disclose, among other things, that the [Defendants ... and others, including ... Eisenberg, had purchased Nature’s Bounty securities based upon advance knowledge of the reports, and intended to profit on the sale of these securities once the dissemination, or anticipated dissemination of the reports, had caused the price of Nature’s Bounty securities to rise.” Id., II23. Count One alleges the Defendants and Eisenberg “sold their Nature’s Bounty securities to the investing public without disclosing the fraudulent trading scheme, and thereby fraudulently obtained profits total-ling at least $400,000.” Id., ¶ 24. It identifies, by date and content, six instances of mail fraud, four instances of wire fraud and one instance of securities fraud in violation of Section 10(b) and Rule 10b-5, all perpetrated by the Defendants and others, including Eisenberg, in executing the Nature’s Bounty Scheme. Id., ¶¶ 25-27. As to the third scheme (the “LCI Scheme”), Count One states that between approximately October 1982 and November 1983, the Defendants and others, including Eisenberg, devised a scheme to defraud and obtain money “by means of false and fraudulent pretenses, representations, and promises” with respect to LCI Securities. Id., 1128. Count One describes the LCI Scheme as one in which the Defendants and Eisenberg rigged and manipulated the market in order to raise and control the price of LCI securities and create a greater demand for the same. Id., HU 29-30. Count One states Bertoli caused Monarch to underwrite the initial public offering (the “IPO”) of LCI securities. Id., 1131. It states Bertoli arranged for the LCI IPO to be sold in units; a unit consisted of one share of common stock and two warrants. Id., 1132. It states that the Defendants and others, including Eisenberg, caused “virtually all of the securities in the LCI IPO to be sold to individuals and entities who were controlled by them, or who were under the control of individuals who had understandings with them concerning the manner in which these securities would be traded.” Id., 1133. It states that as a result, the Defendants and Eisenberg controlled the LCI securities traded in the market and enhanced their ability to fraudulently manipulate the price of the LCI securities. Id. Count One states that during the LCI IPO and the first few days of aftermarket trading, the Defendants and Eisenberg purchased substantial amounts of LCI securities at minimal cost through nominee brokerage accounts, such as the Euro Bank account at Monarch. Id., 1134. It states one way the Defendants and Eisenberg controlled pricing was that prior to the close of the LCI IPO, they made arrangements with brokers and traders for the LCI securities to be traded according to the directions of Defendants and Eisenberg. It states these individuals bought and sold LCI securities at times and prices determined by the Defendants and Eisenberg, rather than by the market forces. Id. Count One states Defendants and Eisenberg bribed portfolio managers and research analysts of the M & I Growth Fund (the “M & I Fund”) and Aggressive Growth Shares, Inc. (the “Bullock Fund”). It states the Defendants and Eisenberg opened nominee brokerage accounts at Monarch for the benefit of the M & I Fund and Bullock Fund managers and research analysts. These accounts were used to generate large sums of money through fraudulent trading of LCI securities. Id. The managers in turn bought large blocks of LCI securities for their respective funds. Id., 1136. The research analysts caused Halswell Corp. (“Halswell”) to open an account at Monarch. Id. Count One states Cannistraro wrote a research report to be circulated prior to the close of the LCI IPO recommending the purchase of the LCI securities (the “LCI Report”). Id., ¶ 37. It states the Defendants caused a broker from G.K. Scott & Co. (“G.K. Scott”) to claim authorship of and publish the LCI Report on G.K. Scott letterhead because Cannistraro was an officer and director and the largest shareholder of LCI. Id. It states as part of the LCI Scheme the Defendants and Eisenberg caused the LCI Report to be disseminated without disclosing that Cannistraro had actually authored it, that the Defendants and Eisenberg were engaged in a scheme to manipulate the market and that the LCI Report was part of the scheme. Id., 1138. Count One states that during the first five days of aftermarket trading the Defendants and Eisenberg caused the LCI securities ■ to rise from the IPO unit price of twenty-five cents to $1.25 and that by the end of February 1983, they caused the price to rise to $1,625 per share. Id., II39. It states the Defendants and Eisenberg sold their LCI securities “without disclosing this fraudulent trading scheme” and “fraudulently obtained profits totalling at least $462,000.” Id., 1140. Count One identifies, by date and content, six instances of mail fraud, five instances of wire fraud and one instance of securities fraud in violation of Section 10(b) and Rule 10b-5, all perpetrated by the Defendants and others, including Eisenberg, in executing the LCI Scheme. Id., ¶1¶ 41-43. As to the fourth scheme (the “Toxic Waste Scheme”), Count One states that between approximately December 1982 and October 1983, the Defendants and others, including Eisenberg, engaged in a scheme concerning Toxic Waste securities. Id., 1144-45. Count One describes the Toxic Waste Scheme as one in which the Defendants and Eisenberg rigged and manipulated the market in order to raise and control the price of Toxic Waste securities and create a greater demand for the same in order to ensure they could sell their Toxic Waste securities at a substantial profit. Id., ¶¶ 45-46. Count One states Bertoli caused Monarch to underwrite the IPO of Toxic Waste securities. Id., If 47. It states Bertoli caused the securities in the Toxic Waste IPO to be sold in units; a unit consisted of one share of common stock and two warrants. Id., 1148. It states the Defendants and others, including Eisenberg, caused “the securities in the Toxic Waste IPO to be sold to individuals and entities who were controlled by them, or who were under the control of individuals who had understandings with them concerning the manner in which these securities would be traded.” Id., ¶ 49. It states as a result the Defendants and Eisenberg controlled the LCI securities being traded in the market and enhanced their ability to fraudulently manipulate the price of the Toxic Waste securities. Id. Count One states that during the Toxic Waste IPO and first days of aftermarket trading, the Defendants and Eisenberg purchased substantial amounts of Toxic Waste securities at minimal costs through nominee brokerage accounts in the names of Parsico Ltd. (“Parsico”) and Venture Partners “A” (“Venture Partners”) maintained at Monarch. Id., 11 50. It states one way the Defendants and Eisenberg controlled pricing was that prior to the close of the Toxic Waste IPO, they made arrangements with various brokers and traders to trade the Toxic Waste securities according to the directions of Defendants and Eisenberg. It stated these individuals bought and sold Toxic Waste securities at times and prices determined by the Defendants and Eisenberg, rather than by the market forces. Id., ¶ 51. It states Defendants and Eisenberg opened nominee brokerage accounts at Monarch for the benefit of the M & I Fund and Bullock Fund managers and research analysts. Id., ¶ 52. It states the Defendants and Eisenberg bribed the M & I Fund and Bullock Fund managers to buy large blocks of Toxic Waste securities for their respective funds. The M & I Fund and Bullock Fund research analysts caused the Halswell brokerage account at Monarch to purchase large blocks of Toxic Waste securities. Id. Count One states as part of the fraudulent scheme to inflate the price of Toxic Waste securities, Cannistraro wrote four research reports (the “Toxic Waste Reports”) to be circulated prior to the close of the Toxic Waste IPO. These reports recommended the purchase of the Toxic Waste securities. Id., ¶ 53. It states Cannistraro caused Wood Gundy to disseminate the Toxic Waste Reports to the investing public. Id. It states the Defendants and Eisenberg caused the Toxic Waste Reports to be disseminated without disclosing that the Defendants and Eisenberg were engaged in a scheme to manipulate the market and that the reports were part of the scheme. Id., 1154. Count One states that as part of the Toxic Waste Scheme, on or about March or April 1983, Bertoli and Eisenberg caused Monarch to disseminate to brokers, research analysts, securities newsletters and Monarch customers eighteen thousand copies of one of the Toxic Waste Reports recommending the purchase of Toxic Waste securities. Id., ¶ 55. It states that on or around March or April 1983, Cannistraro caused to be prepared and disseminated to the investing public articles in the 14 March 1983 Portfolio Letter and the securities investment newsletter “Ground Floor,” dated 22 April 1983 (the “22 April 1983 Ground Floor”). Id., 11 56. It states these articles discussed the Toxic Waste Reports and continued to recommend the purchase of Toxic Waste securities without disclosing the Toxic Waste Scheme. Id. It states that during the first three days of aftermarket trading the Defendants and Eisenberg caused the Toxic Waste securities to rise from the IPO unit price of twenty-five cents to $1.25 per share of common stock and that between 10 March 1983 and mid-June 1983, they caused the price to rise to $4.50 per share. Id., II57. Count One states the Defendants and Eisenberg sold their Toxic Waste securities “without disclosing this fraudulent trading scheme” and “fraudulently obtained profits totalling at least $4,240,000.” Id., 11 58. It identifies, by date and content, eleven instances of mail fraud, two instances of wire fraud, one instance of interstate transportation of money taken by fraud in violation of 18 U.S.C. § 2314 and one instance of securities fraud in violation of Section 10(b) and Rule 10b-5, all perpetrated by the Defendants and others, including Eisenberg, in executing the Toxic Waste Scheme. Id., 1111 59-62. As to the fifth scheme (the “Beneficial Owners Concealment Scheme”), Count One states that from approximately March 1983 to November 1984, in the District of New Jersey and elsewhere, the Defendants executed a scheme to conceal the identities of the promoter and beneficial owners of High Tech. Id., II 63. It states that in about March 1983, Bertoli became the promoter of High Tech, whereby he founded High Tech, appointed its officers, board of directors and advisory board, allocated the distribution of its securities and arranged for the IPO of its securities, which were underwritten by Monarch. Id., 11 64. Count One further states that in March 1983, prior to the IPO of the High Tech securities, the Defendants and Eisenberg caused 3.1 million shares of High Tech restricted common stock to be placed in the names of nominees while the shares were beneficially owned by the Defendants and Eisenberg. Id., II65. It states the Defendants and Eisenberg did not disclose in High Tech’s registration statements and prospectus the role of Bertoli as High Tech’s promoter and the Defendants’ and Eisenberg’s beneficial ownership of more than ten percent of High Tech’s common stock and more than ten percent of High Tech’s outstanding stock. Id., 11 66. Count One states that having concealed such information, the Defendants raised $425,000 in capital for High Tech from the investing public and were able to direct the management and policies of High Tech to their benefit. Id., H 67. In addition, it states that from approximately February 1984 to July 1984, the Defendants caused 3.1 million shares of High Tech common stock beneficially owned by them to be sold for a profit of at least $115,000. Id., 1168. It identifies, by date and content, five instances of mail fraud, three instances of wire fraud and two instances of securities fraud in violation of 15 U.S.C. §§ 77g, 77x, 77aa(4), 77aa(6) and 77j(a)(l), all perpetrated by the Defendants and others, including Eisenberg, in executing the Beneficial Owners Concealment Scheme. Id., 111169-72. As to the sixth scheme (the “High Tech Scheme”), Count One states the Defendants and others, including Eisenberg, engaged in a scheme concerning High Tech securities from about March 1983 to about February 1984, in the District of New Jersey and elsewhere. Id., ¶ 73. Count One describes the High Tech Scheme as one in which the Defendants and Eisenberg rigged and manipulated the market in order to raise and control the price of High Tech securities and create a greater demand for the same in order to ensure they could sell their High Tech securities at a substantial profit. Id., ¶¶ 74-75. Count One states Bertoli caused Monarch to underwrite the IPO of High Tech securities. Id., ¶ 76. It states Bertoli caused the securities in the High Tech IPO to be sold in units, consisting of one share of common stock and two warrants. Id., ¶ 77. It states that the Defendants and others, including Eisenberg, caused “the securities in the High Tech IPO to be sold to individuals and entities who were controlled by them, or who were under the control of individuals who had understandings with them concerning the manner in which these securities would be traded.” Id., ¶ 78. It states as a result the Defendants and Eisenberg controlled the LCI securities being traded in the market and enhanced their ability to fraudulently manipulate the price of the High Tech securities. Id. Count One states that during the High Tech IPO and first few days of aftermarket trading, the Defendants and Eisenberg purchased substantial amounts of High Tech securities at minimal costs through nominee brokerage accounts maintained at Monarch in the names of Parsico, Venture Partners, VPI Ltd. (“VPI”) and Roger Rowland. Id., ¶ 79. It states one way the Defendants and Eisenberg controlled pricing was that prior to the close of the High Tech IPO, they made arrangements for High Tech securities to be traded by traders and brokers according to the directions of the Defendants and Eisenberg. It states this trading procedure allowed High Tech securities to be bought and sold at times and prices determined by the Defendants and Eisenberg, rather than by the market forces. Id., 1180. It states that as part of the High Tech Scheme the Defendants and Eisenberg bribed a fund manager and a research analyst in an attempt to cause the buying of large blocks of High Tech securities. Id., H 81. Count One states the Defendants and Eisenberg allocated securities in the High Tech IPO to the research analyst’s nominee brokerage account at Monarch. Id. In exchange for such allocation, and in exchange for money which the Defendants and Eisenberg provided to the research analyst through the trading of LCI and Toxic Waste securities in his nominee accounts at Monarch, the research analyst caused the Halswell brokerage account at Monarch to purchase a large block of High Tech securities. Id. In addition, Count One states the Defendants and Eisenberg allocated securities in the High Tech IPO to the M & I Fund manager’s nominee brokerage account at Monarch in exchange for which the M & I Fund manager agreed to cause the M & I Fund to purchase a large block of High Tech securities. Id. Count One states as part of the fraudulent scheme to inflate the price of High Tech securities, Cannistraro recommended the purchase of High Tech securities to various brokers at Wood Gundy without disclosing that the Defendants and Eisenberg were engaged in a scheme to manipulate the market and that the recommendation was part of the scheme. Id., 1182. In addition, Count One states that in or about June 1983 the Defendants agreed with the president and vice president of Solar Age Manufacturing Corp. (“Solar Age”) that in exchange for the transfer of 200,000 shares of Solar Age restricted common stock to High Tech, Cannistraro would prepare favorable research reports recommending the purchase of Solar Age securities (the “Solar Age Reports”). Id., 1183, 84. It states such reports were disseminated by Wood Gundy to the investing public. Id. It further states Bertoli and High Tech arranged for additional financing for Solar Age by a secondary public offering of the securities. Id. It states the Solar Age Reports were false and misleading in that they failed to disclose the reports were prepared in exchange for the transfer of 200,000 shares of Solar Age stock to High Tech and that they were prepared in order to increase the value of High Tech’s portfolio of securities. Id., ¶ 85. Count One states that as a result of the dissemination of such reports, the price of Solar Age securities was artificially inflated and the transfer of Solar Age securities to High Tech thereby artificially increased the value of High Tech’s portfolio. Id., H 86. It states the fraudulently inflated value of High Tech securities was then publicized to the investing public in various newsletters and letters from High Tech. Id. It states the Defendants and Eisenberg caused the price of High Tech securities to rise in the first six days of aftermarket trading from the IPO price of fifty cents to $2.25 per share of common stock; between 15 June and mid-October 1983 the price increased to $3.25 per common share. Id., ¶ 87. Count One states that from about June 1983 to about February 1984, the Defendants sold their High Tech securities to the investing public without disclosing the fraudulent trading scheme for a profit of at least $1,720,000. Id., ¶ 88. It identifies, by date and content, eleven instances of mail fraud, three instances of wire fraud and one instance of securities fraud in violation of Section 10(b) and Rule 10b-5, all perpetrated by the Defendants and others, including Eisenberg, in executing the High Tech Scheme. Id., TUT 89-91. As to the seventh and last scheme (the “Cover-Up Scheme”), Count One asserts the Defendants obstructed justice to conceal their wrongdoing. Count One states a subpoena of a grand jury empaneled in the District of New Jersey was served on one of Cannistraro’s nominees on or about 24 January 1986, requiring the nominee to produce documents and to testify before the grand jury. Id., ¶ 93. It states Cannistraro instructed and directed this nominee, in return for cash payments, to conceal Cannistraro’s beneficial ownership in the nominee’s Monarch account. Id., ¶ 94. Count One states Bertoli engaged in conduct to obstruct justice and to cover up the fraudulent trading schemes by shredding and destroying documents in the Cayman Islands in June and November 1987, by removing documents and hiding the proceeds from the racketeering activities and by submitting false and fraudulent affidavits to the court. Id., ¶ 95. Count Two of the Second Superseding Indictment charges the Defendants with conspiracy to violate RICO section 1962(c) by agreeing with others, including Eisenberg, to conduct the affairs of Monarch through a pattern of racketeering in violation of RICO section 1962(d). It charges the conspiracy existed from about January 1982 to at least January 1989 in the District of New Jersey and elsewhere. Second Superseding Indictment, Count Two (“Count Two”), 112. It states the pattern of racketeering consisted of the racketeering acts charged in Count One of the Second Superseding Indictment. Id. Count Three of the Second Superseding Indictment charges Bertoli with conspiracy to obstruct justice in violation of 18 U.S.C. § 371 in connection with a civil litigation brought by the SEC against the Defendants, Eisenberg and Steven Cloyes, a securities broker at Monarch (the “SEC Action”), the grand jury investigations related to the underlying securities fraud, the prosecution of Cannistraro in 1987 and this action. Second Superseding Indictment, Count Three (“Count Three”), ¶ 14. It charges the conspiracy began as early as March 1983 and has continued to the present. Id. Count Three describes the object of the conspiracy as a means “to cover-up, conceal, and eventually avoid civil and criminal liability for, the illegal racketeering activities of ... Bertoli, ... Cannistraro and ... Eisenberg, and to prevent evidence of their ... beneficial ownership of money and accounts in the Cayman Islands, from being considered and used” in the civil and criminal actions against them. Id., H15. It states the conspiracy was achieved by causing brokers or nominees to lie to or conceal evidence from investigators and the grand jury, causing Cayman Islands banks from producing documents requested in an informal agreement between the United States Department of Justice and the Cayman Islands Authorities (the “Gentleman’s Agreement”), requesting financial documents from Cayman Island entities, concealing documents at Monarch that were subpoenaed by the grand jury, destroying documents relating to the nominee accounts at Euro Bank, filing a false financial disclosure form with the United States Probation Office, transferring funds in the Cayman Islands and submitting false affidavits during the course of this prosecution. Id., irir 16-28. Count Three lists thirty-three overt acts committed by the Defendants and Eisenberg between March 1983 and the return of the Second Superseding Indictment in furtherance of this conspiracy. These overt acts are too numerous to set forth in full. However, they include meetings and telephone calls in March and August 1983 between Bertoli and/or Eisenberg and a broker from G.K. Scott, see Count Three, overt act numbers 1, 3-4 and 6, and false and misleading statements provided by a G.K. Scott broker to SEC investigators or to the SEC, id. overt act numbers 2 and 5. In addition, they include false and misleading statements made by Eisenberg to the SEC. Id., overt act numbers 7-8. The overt acts also include telephone calls or meetings between Cannistraro and his nominees and subsequent false statements by the nominees to the SEC or the grand jury, id., overt acts numbers 9-11, 16-17, 21, flights by the Defendants to the Cayman Islands; id. overt acts numbers 12-15, 18-20, 22-24, the shredding of documents in the Cayman Islands, id., overt acts numbers 25, 27, a meeting between Bertoli and Eisenberg in New York, New York, id., overt act number 30, and providing false documents or affidavits to the court or the United States Probation Office. Id., overt acts numbers, 26, 31-33. Count Four charges Bertoli with obstruction of justice in violation of 18 U.S.C. §§ 1502-1503. Second Superseding Indictment, Count Four, 1f 4. It states that in or about June 1987 Bertoli and Eisenberg, after a grand jury returned the 1987 Cannistraro Indictment, shredded and destroyed documents in the Cayman Islands which were relevant to the investigations of a grand jury, empaneled on 30 January 1986. Id., 11112-4. Count Five charges Bertoli with obstruction of justice in violation of 18 U.S.C. §§ 1503 and 2. Second Superseding Indictment, Count Five, ¶ 3. It states that in or about November 1987, in the District of New Jersey and elsewhere, Bertoli shredded and destroyed documents in the Cayman Islands that were relevant to the investigations of a grand jury, empaneled on 17 March 1987. Id., Till 2-3. Count Six charges Bertoli with obstruction of justice in violation of 18 U.S.C. §§ 1503 and 2. Second Superseding Indictment, Count Six, 112. It states that in or about April 1990, in the District of New Jersey and elsewhere, Bertoli and others, including Eisenberg, “caused the racketeering proceeds and documents relating to those racketeering proceeds to be transferred from the custody and control of [a Paget-Brown & Co. (“Paget Brown”) ] employee and then caused the racketeering proceeds to be moved from the Cayman Islands to the Principality of Andorra in Europe.” Id. Count Seven charges Bertoli with obstruction of justice in violation of 18 U.S.C. §§ 1503 and 2. Second Superseding Indictment, Count Seven, If 5. It states that on or about 6 December 1991 Bertoli “submitted three purported ‘Affidavits in Contemplation of Death’ of Jack Isaacson (the “Isaacson Affidavits”), which stated, among other things, that Isaacson and another individual were the sole beneficial owners of the Cayman Islands bank and brokerage accounts ... relevant to the present RICO prosecution.” Id., ¶¶! 2-3 (footnotes added). It states the Isaacson Affidavits were false and fraudulent and Bertoli was aware of this. Id., 114. It further states Bertoli was aware the Isaac-son Affidavits “had been prepared for the use of ... Bertoli and others, including ... Cannistraro and ... Eisenberg, in attempting to fraudulently exculpate themselves ____” Id. Count Eight charges the Defendants with conspiracy in violation of 18 U.S.C. § 371 to violate Section 10(b) and Rule 10b-5 in connection with the purchase and sale of Solar Age securities. Second Superseding Indictment, Count Eight (“Count Eight”), 112, 16. It states the conspiracy existed between about May 1983 and about October 1985 in the District of New Jersey and elsewhere. Id., 112. Count Eight states that as part of this conspiracy, in June 1983 the Defendants agreed with the president and vice president of Solar Age that in exchange for the transfer of 200,-000 shares of Solar Age common stock to High Tech, Cannistraro would prepare favorable research reports recommending the purchase of Solar Age securities for dissemination to the investing public by Wood Gundy. Id., ¶¶ 3-4. It states it was additionally part of the agreement that Bertoli and High Tech would obtain additional financing for Solar Age by means of a secondary public offering of securities. Id. Count Eight states Bertoli and Cannistraro used nominee brokerage accounts to purchase Solar Age securities with knowledge that Cannistraro was preparing favorable research reports and with the expectation that such reports would cause the price of Solar Age stock to rise. Id., H 4. Count Eight states the Solar Age Reports were false and misleading in that they failed to disclose that they were prepared by Cannistraro in exchange for the transfer of 200,000 shares of Solar Age common stock to High Tech. It further states the Solar Age Reports were misleading because they did not disclose that the Defendants had purchased Solar Age securities based on advance knowledge of the Solar Age Reports and intended to profit on the sale of the Solar Age securities after the dissemination of the Solar Age Reports caused the price of the securities to rise. Id., 115. Count Eight states that between about June 1983 and about December 1983, the Defendants sold their Solar Age securities after the price had risen, in part because of the demand created by the Solar Age Reports, to the investing public, without disclosing their scheme to defraud, for a profit of at least $265,000. Id., H 6. Count Eight further states the secondary public offering of Solar Age securities arranged by Bertoli raised over $990,000 for Solar Age. Id., ¶ 7. Count Eight lists sixteen overt acts committed by the Defendants between June 1983 and September 1985 in furtherance of this conspiracy. These overt acts are too numerous to set forth in full. However, they include a 6 June 1983 meeting attended by Bertoli, Cannistraro and the executive vice president of Solar Age in New York City, New York, id., Count Eight, overt act numbers 1, 2 and 3, various telephone calls and correspondence made on 6 June 1983 and 20 June 1983 by Solar Age personnel at the prompting of Bertoli and Cannistraro, id. Count Eight overt act numbers 4, 5 and 6, a 28 June 1983 wire transmission by Wood Gundy, made at the prompting of Cannistraro, of a research report recommending the purchase of Solar Age securities, id. overt act number 9, and the August and September 1985 mailing of the Solar Age prospectus in connection with the secondary offering of Solar Age securities, id. overt act number 15. Cayman Islands Depositions On 4 September 1991 depositions commenced in the Cayman Islands (the “Cayman Islands Depositions”) before presiding Judge Sir Denis Malone, Cayman Central Authority (the “Cayman Authority”). Attending the Cayman Islands Depositions were the Government and Bertoli. Neither Cannistraro nor his then counsel were present at the Cayman Islands Depositions. At the start of the Cayman Islands Depositions, the Cayman Authority explained the procedure for the depositions. He stated Cayman law, rather than United States law, would be the background law, but it would not be rigidly applied. 4 September Proceedings Tr. at 16. He explained the “records in the proceedings will be those requested by the United States authorities.” Id. at 17. He stated the proceedings must be kept within the parameters of the Treaty and that collateral issues should not be pursued widely. Id. at 33. With respect to cross-examination, he stated that “questions which affect the credibility of a witness by attacking his character, but are not otherwise relevant to the actual inquiry, ought not to be asked unless there are reasonable grounds for thinking that the implication conveyed by the question is well-founded or true.” Id. The Cayman Authority explained issues of admissibility were matters for the trial judge in the United States. Id. at 34. He reminded the parties that Article Seven of the Treaty limits the use of information obtained through the Treaty. Id. During the course of the depositions, the Cayman Authority explained that Bertoli would not be permitted to voir dire the witnesses with respect to documents being introduced by records custodians. See, e.g., Duggan Dep. Tr. at 21-23. During the Cayman Islands Depositions Bertoli cross-examined all of the witnesses and recrossed Bechard. After the Government conducted redirect-examination of Coleman, Bertoli sought to recross Coleman. Coleman Dep. Tr. at 300. The Cayman Authority did not permit recross-examination. It stated: “There’s no Recross here. There’s Examination in Chief, there’s Cross Examination and there’s a Re-examination.” Id. Bertoli, therefore, moved to strike the redirect testimony on the grounds that he was denied an opportunity to recross. Id. at 302. Bertoli states despite the fact that the Government introduced a piece of evidence on redirect, he was not given an opportunity to recross Bond. Cayman Islands Moving Brief at 18-19. At the close of the Cayman Islands Depositions, Bertoli objected to the fact that the Government did not call four witnesses it had subpoenaed for depositions. 17 Sept. 1992 Dep. Proceedings at 6-7. The Cayman Authority explained that it could not require the Government to call witnesses. Id. at 7. Following the Cayman Islands Depositions, Bertoli moved in this court to depose three witnesses in the Cayman Islands, all of whom had previously been subpoenaed but not called by the Government. Notice of Motion, filed 12 November 1991. On 19 December 1991 Bertoli was given leave to depose George Ebanks, deputy managing director of Euro Bank, Joan Bond, assistant secretary of Euro Bank, and Patrick Holmes, an officer at the Guardian Bank and Trust (Cayman) Limited. Letter-opinion and order, filed 19 December 1991. A Letter Rogatory has been submitted to the Cayman Authority requesting that these depositions be conducted; as of the date of this opinion, the depositions have not been scheduled. Discussion I. Motion to Dismiss and for Discovery Based on Allegations of Prosecutorial Misconduct The Defendants move to dismiss the Second Superseding Indictment on the ground of prosecutorial misconduct, or in the alternative, for discovery of grand jury materials. Misconduct Moving Brief at 2-6. Bertoli made the same motion with respect to the Superseding Indictment; the motion to dismiss the Superseding Indictment based on prosecutorial misconduct was denied. Eisenberg, 773 F.Supp. at 701-13. The Defendants speculate: It is likely, given the fact that not less than seven grand juries were empaneled to investigate the charged offenses, and many witnesses were called to testify before just one of those grand juries, that transcripts of witness testimony from prior grand juries were submitted to subsequent grand juries. Further, it is substantially likely that summaries of testimony and evidence were submitted to the indicting grand jury. Misconduct Moving Brief at 2. The Defendants argue, “[wjith respect to the ... [Sjecond [Superseding [Ijndictment, it would be impossible in the short period of time to have provided anything but summaries to the grand jury.” Id. at 5. At oral argument, Bertoli stated that an investigation conducted on his behalf revealed witnesses who would have been available for the grand jury were not called. 19 June 1992 Oral Arg. Tr. at 11-12. The Defendants assert that any use of such summaries was improper if the testimony itself was available, if the jury was misled into believing the summaries were actually the testimony and if he was prejudiced by such use. Misconduct Moving Brief at 2 (citing United States v. Wander, 601 F.2d 1251, 1260 (3d Cir.1979)). The Defendants request, therefore, an order “requiring disclosure of the grand jury minutes to determine whether transcripts of prior testimony were read to the indicting grand jury.” Id. In the alternative, the Defendants request an in camera review of the grand jury materials to determine if the grand jury was misled with respect to the evidence or testimony presented. Id. at 6. The Government argues the Defendants have failed to establish a showing of misconduct on the part of the Government and that such “misconduct ‘substantially influenced the grand jury’s decision to indict____’” Opposition Brief at 21 (quoting Bank of Nova Scotia v. United States, 487 U.S. 250, 256, 108 S.Ct. 2369, 2374, 101 L.Ed.2d 228 (1988)). The Government argues discovery of grand jury materials is inappropriate because the Defendants have not shown a “ ‘substantial likelihood of gross or prejudicial irregularities in the conduct of the grand jury.’ ” Id. at 23 (quoting United States v. Fischbach and Moore, Inc., 576 F.Supp. 1384, 1394 (W.D.Pa.1983)). Lastly, the Government argues the Defendants have not shown that the Government misled the jury by using summaries of prior grand jury testimony such that an in camera review of the grand jury material is warranted. Id. at 24-25. The use of hearsay evidence by a grand jury is not prohibited. Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 408, 100 L.Ed. 397, reh’g denied, 351 U.S. 904, 76 S.Ct. 692, 100 L.Ed. 1440 (1956); United States v. Ismaili, 828 F.2d 153, 164 (3d Cir.1987), cert. denied, 485 U.S. 935, 108 S.Ct. 1110, 99 L.Ed.2d 271 (1988), United States v. Steele, 685 F.2d 793, 806 (3d Cir.), cert. denied sub nom. Mothon v. United States, 459 U.S. 908, 103 S.Ct. 213, 74 L.Ed.2d 170 (1982); Wander, 601 F.2d at 1260. A grand jury is prohibited from using hearsay evidence if “non-hearsay is readily available; ... the grand jury was also mislead into believing it was hearing direct testimony rather than hearsay; and ... there is also a high probability that had the jury heard the eye-witness it would not have indicted the defendant.” Ismaili, 828 F.2d at 164 (citing Wander, 601 F.2d at 1260). The Defendants argue because of the secrecy provided to grand jury materials, they are unable to determine whether there was an improper use of hearsay testimony; however, they speculate as to the use of summaries and transcripts of witnesses from prior grand juries. The Defendants, therefore, request discovery of the grand jury materials or an in camera review of the grand jury materials. In considering the Defendants’ request for discovery of the grand jury materials, two principles must be borne in mind. First, it is a “ ‘long established policy that maintains the secrecy of grand jury proceedings in the federal courts.’ ” United States v. Sells Eng’g, Inc., 463 U.S. 418, 424, 103 S.Ct. 3133, 3138, 77 L.Ed.2d 743 (1983) (quoting United States v. Procter & Gamble Co., 356 U.S. 677, 681, 78 S.Ct. 983, 986, 2 L.Ed.2d 1077 (1958)); see also United States v. McDowell, 888 F.2d 285, 289 (3d Cir.1989); accord Eisenberg, 773 F.Supp. at 707. This general rule of grand jury secrecy is codified in Rule 6(e) of the Federal Rules of Criminal Procedure. United States v. Johns, 858 F.2d 154, 158 (3d Cir.1988). “Rule 6(e) applies not only to information drawn from transcripts of grand jury proceedings, but also to anything which may reveal what occurred before the grand jury.” In re Grand Jury Matter, 682 F.2d 61, 63 (3d Cir.1982); see also Fund for Constitutional Gov’t v. National Archives & Records Serv., 656 F.2d 856, 869 (D.C.Cir.1981) (The scope of grand jury secrecy encompasses anything “which would reveal ‘the identities of witnesses or jurors, the substance of testimony, the strategy or direction of the investigation, the. deliberations or questions of the jurors, and the like.’ ”) (quoting SEC v. Dresser Indus., Inc., 628 F.2d 1368, 1382 (D.C.Cir.), cert. denied, 449 U.S. 993, 101 S.Ct. 529, 66 L.Ed.2d 289 (1980)); accord, Eisenberg, 773 F.Supp. at 707. The secrecy of grand jury proceedings is not absolute. Rule 6(e)(3)(C)(i) authorizes disclosure by court order. The party moving for court-ordered disclosure bears a heavy burden of proving to the court that “the material they seek is needed to avoid a possible injustice in another judicial proceeding, that the need for disclosure is greater than the need for continued secrecy, and that their request is structured to cover only material so needed.” Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 222, 99 S.Ct. 1667, 1674, 60 L.Ed.2d 156 (1979) (footnote omitted). Before disclosure of the grand jury transcripts, which would corroborate the Defendants’ arguments can be ordered, the Defendants must offer evidence of a “substantial likelihood of gross or prejudicial irregularities in the conduct of the grand jury.” United States v. Budzanoski, 462 F.2d 443, 454 (3d Cir.) (citing United States v. Politi, 334 F.Supp. 1318, 1322 (S.D.N.Y.1971); United States v. Dioguardi, 332 F.Supp. 7, 20 (S.D.N.Y.1971)), cert. denied, 409 U.S. 949, 93 S.Ct. 271, 34 L.Ed.2d 220 (1972). Only after the Defendants have met this burden does a court balance the need for disclosure against the need for secrecy. Id.; see also McDowell, 888 F.2d at 289. Second, to the extent the Defendants seeks dismissal of the Second Superseding Indictment as a sanction for such alleged misconduct, the Supreme Court has held in a recent decision that a district court may not exercise its supervisory powers to dismiss an indictment for prosecutorial misconduct in such a way that by-passes the harmless error rule of Fed.R.Crim.P. 52(a). Bank of Nova Scotia, 487 U.S. 250, 108 S.Ct. 2369. Thus, dismissal is appropriate only “ ‘if it is established that the violation substantially influenced the grand jury’s decision to indict,’ or if there is ‘grave doubt’ that the decision to indict was free from the substantial influence of such violations.” Id. at 256, 108 S.Ct. at 2374 (quoting United States v. Mechanik, 475 U.S. 66, 78, 106 S.Ct. 938, 945-46, 89 L.Ed.2d 50 (1986)); see also United States v. Soberon, 929 F.2d 935, 939-40 (3d Cir.), cert., denied, — U.S. -, 112 S.Ct. 73, 116 L.Ed.2d 47 (1991). A district court has “no authority to dismiss [an] indictment on the basis of prosecutorial misconduct absent a finding that petitioners were prejudiced by such misconduct.” Bank of Nova Scotia, 487 U.S. at 263, 108 S.Ct. at 2378. It is clear from review of the Affidavit of Assistant United States Attorney John Fietkiewicz (the “Fietkiewicz Affidavit”), submitted under seal, see Sealed Government’s Exhibit at 1, that the Defendants’ contentions that the Government used improper hearsay testimony amount to misplaced speculation. A review of the Fietkiewicz Affidavit reveals that the grand jury was informed of the hearsay nature of the evidence submitted. Id. There is no factual basis to conclude the Government misrepresented the reliability of the hearsay testimony and that the grand jury was misled as to the contents of the evidence. Indeed, Bertoli states he conducted his own independent investigation. 19 June 1992 Oral Arg. at 11-12. Despite such investigative efforts, he has not presented any evidence of Government misconduct. The Misconduct Motion to dismiss the Second Superseding Indictment, to the extent it is based on speculation that summaries and prior testimony were read to the grand jury, is denied. In addition, because the Defendants have not offered evidence of a substantial likelihood of prejudicial irregularities in the grand jury proceedings, the request for discovery of grand jury materials or for an in camera review of the minutes from the grand jury is denied. See, e.g., United States v. Torres, 901 F.2d 205, 232-33 (2d Cir.) (denying motion of defendant for discovery of grand jury minutes or for in camera review of such minutes, where defendant failed to sufficiently allege prejudice from allegedly perjured grand jury testimony), cert. denied sub nom. Cruz v. United States, — U.S. -, 111 S.Ct. 273, 112 L.Ed.2d 229 (1990). II. Motion to Dismiss for Pre-Indictment Delay, Selective Prosecution and Vindictive Prosecution The Defendants move to dismiss the Second Superseding Indictment against them on the grounds of pre-indictment delay and selective and vindictive prosecution. A. Pre-Indictment Delay The Defendants state the investigation for the charges underlying the indictments in this case began in 1982 and continued through the return of the Second Superseding Indictment. They argue the delay in bringing the Indictment and subsequent Superseding Indictment and Second Superseding Indictment violates the Due Process Clause. Pre-Indictment Delay Moving Brief at 5. The Defendants contend the period of delay was prejudicial because numerous defense witnesses have died. Id. The Defendants also argue affirmative indications of malice exist, as well as questions as to whether venue is proper. Id. The Government argues it did not purposely delay, and there is no evidence that it purposely delayed bringing the indictments in this case to gain a tactical advantage over the Defendants. Opposition Brief at 29-33. The Government further argues the Defendants have failed to establish prejudice as a result of any delay in bringing the indictments. Id. at 33-40. The Due Process Clause of the Fifth Amendment requires dismissal of an indictment “if it were shown ... that the preindictment delay ... caused substantial prejudice to [the defendant’s] right[] to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused,” United States v. Marion, 404 U.S. 307, 324, 92 S.Ct. 455, 465, 30 L.Ed.2d 468 (1971) (footnote omitted). The Marion Court, however, declined to delineate the circumstances in which preindictment delays would require the dismissal of the indictment. Id. The Court stated: [W]e need not, and could not now, determine when and in what circumstances actual prejudice resulting from pre-accusation delays requires the dismissal of the prosecution. Actual prejudice to the defense of a criminal case may result from the shortest and most necessary delay; and no one suggests that every delay-caused detriment to a defendant’s case should abort a criminal prosecution____ [T]he rights of the defendant to a fair trial will necessarily involve a delicate judgment based on the circumstances of each case. Id. at 324-25, 92 S.Ct. at 465-66 (footnotes omitted); accord, United States v. Lovasco, 431 U.S. 783, 789-90, 796-97, 97 S.Ct. 2044, 2048-49, 2052, 52 L.Ed.2d 752, reh’g denied, 434 U.S. 881, 98 S.Ct. 242, 54 L.Ed.2d 164 (1977). “Marion makes clear that proof of prejudice is generally a necessary but not sufficient element of a due process claim, and that the due process inquiry must consider the reasons for the delay as well as the prejudice to the accused.” Lovasco, 431 U.S. at 790, 97 S.Ct. at 2048-49. The Lovasco Court described its task in determining whether pre-indictment delay violates the Due Process Clause as one to determine “only whether the action complained of ... violates those ‘fundamental conceptions of justice which lie at the base of our civil and political institutions,’ and which define ‘the community’s sense of fair play and decency.’ ” Id. (citations omitted). The Court stated where the delay results from the prosecution’s decision to continue its investigation, the delay would not warrant dismissal of the indictment. Id. at 791-96, 97 S.Ct. at 2049-52. In Lovasco, the Government appealed the dismissal of an indictment for pre-indictment delay. The Government indicted the defendant for possession of firearms stolen from the United States mails and for dealing in firearms without a license eighteen months after the alleged offenses occurred. 431 U.S. at 784, 97 S.Ct. at 2046. The defendant moved to dismiss the indictment for pre-indictment delay arguing that little additional evidence was uncovered during the seventeen months preceding the indictment and that he suffered prejudice as a result of the death of two material witnesses. Id. at 785, 97 S.Ct. at 2046. The Government argued it kept the investigation open for eighteen months to determine the validity of its theory that the defendant’s son was responsible for the thefts. Id. at 786, 97 S.Ct. at 2047. The Supreme Court reversed the dismissal of the indictment. It held that in the interest of law enforcement, potential defendants, the public and the courts, no time frame can be imposed during which the Government must bring an indictment. Id. at 791-95, 97 S.Ct. at 2049-51. The Court explained the Fifth Amendment does not require the Government to bring an indictment the moment it has probable cause to so. Id. at 791, 97 S.Ct. at 2049. The Court stated: [Ijnvestigative delay is fundamentally unlike delay undertaken by the Government solely “to gain tactical advantage over the accused,” precisely because investigative delay is not so one-sided. Rather than deviating from elementary standards of “fair play and decency,” a prosecutor abides by them if he refuses to seek indictments until he [or she] is completely satisfied that he [or she] should prosecute and will be able promptly to establish guilt beyond a reasonable doubt. Penalizing prosecutors who defer action for these reasons would subordinate the goal of “orderly expedition” to that of “mere speed[.]” This the Due Process Clause does not require. Id. at 795-96, 97 S.Ct. at 2051 (citations and footnote omitted). Relying on the Government’s representations that it continued the investigation to learn the identity of additional participants during the eighteen month hiatus between the crimes and the indictment, the Court reversed the dismissal of the indictment. Id. at 796-97, 97 S.Ct. at 2051-52. In Ismaili, the Circuit affirmed the district court’s denial of the motion to dismiss for pre-indictment delay. 828 F.2d at 167-69. The first grand jury investigation into the charged fraud scheme involving the promotion and sale of customized vans began in January 1981. Id. at 166. This grand jury was unable to complete the investigation and did not return an indictment. Id. In 1982 the Government received a report of an investigation from a Federal Bureau of Investigation (“F.B.I.”) case agent. Additional information was needed, however, to take the case before a grand jury. Because the prosecutor in charge of the case was also involved in three other felony trials and other activities, the investigation did not resume until the summer of 1983 and an indictment was not returned until the summer of 1984. Id. at 166-67. Ismaili sought to establish prejudice through the death of two potential witnesses and the loss of records which would have been used to establish the success of his sales team and promotional efforts. Id. at 168. The Government argued Ismaili was not prejudiced because there was no evidence as to when the witnesses died; therefore, they could have died prior to the Government having completed its case. Id. In addition, the Government argued Ismaili was not prejudiced by the death of the witnesses because their testimony would have been cumulative. Id. The Circuit held the allegations of prejudice were insufficient to warrant dismissal. It stated the fact that witnesses died does not bar prosecution as a result of preindictment delay. Id. It further reasoned the record did not reflect that the documents did in fact ever exist or could have been found. Id. at 169. The court stated a finding of no intentional delay was implicit in the district court’s decision. Having found the district court did not err in its decision that Ismaili did not satisfy his burden of proof, the Circuit affirmed the court’s decision. Id. In United States v. Sebetich, 776 F.2d 412 (3d Cir.1985), cert. denied, 484 U.S. 1017, 108 S.Ct. 725, 98 L.Ed.2d 673 (1988), defendants, bank robbers, appealed their conviction arguing, inter alia, pre-indictment delay. Id. at 429-30. The three robberies charged in the indictment occurred in 1979 and the indictment was returned on 23 March 1984 just five days before the statute of limitations had run. Id. at 429. In challenging the delay, the defendants relied on the fact that the F.B.I investigation concluded on 4 February 1982 when it determined there was sufficient evidence to return an indictment. Id. The indictment, however, was delayed as a result of confusion as to whether the robberies would be prosecuted by the state or federal government. Id. The Government conceded the prosecution fell through the cracks and the investigation was reopened in March 1983. Id. The defendants argued they were prejudiced by the delay because potential witnesses, including alibi witnesses, had died and memories had faded for other witnesses. Id. The Circuit affirmed the district court’s denial of the motion to dismiss for preindictment delay. It stated the defendants “produced no evidence tending to suggest that the delay was a deliberate tactical maneuver by the government.” Id. at 430. It explained the delay was a result of a mix-up between the feder