Dissenting:

I respectfully dissent. To me, it is inexplicable that my Brothers decide that the delay of more than twelve months between the mistrial and Arnold’s rearrest did not result in “actual prejudice.” The district judge, in a well-reasoned memorandum of decision, concluded that the delay between trials resulted in “substantial prejudice” to the appellee’s due process right to a fair trial. His decision rests solidly upon the record and should require affirmance.

At the outset, however, I express my basic agreement with the majority’s formulation of the due process standard governing pre-indictment or pre-arrest delay. United States v. Marion, 404 U.S. 307 , 92 S.Ct. 455 , 30 L.Ed.2d 468 (1971), and United States v. Lovasco, 431 U.S. 783 , 97 S.Ct. *1389 2044 , 52 L.Ed.2d 752 (1977), teach that due process bars prosecution because of prein-dictment delay when the defendant establishes two elements: (1) actual prejudice engendered by the delay; and (2) lack of reasons on the part of the prosecution that justify the delay. The Supreme Court explained in Lovasco :

Id. at 789 , 97 S.Ct. at 2048-49 .

Rather, the crux of my protest concerns the application of the due process standard to the present case. First, the majority concludes that any prejudice caused by the unavailability of Walthers, the alleged victim, at the second trial was “not serious” and “speculative.” The district judge reached the opposite conclusion, fully articulating the rationale for his conclusion:

The decision of the district judge was neither unique nor unusual. The most common form of prejudice to defendants resulting from delay is the unavailability of key witnesses. See, e. g., Dickey v. Florida, 398 U.S. 30 , 90 S.Ct. 1564 , 26 L.Ed.2d 26 (1970); United States v. Macino, 486 F.2d 750 (7th Cir. 1973); Stuart v. Craven, 456 F.2d 913, 916 (9th Cir. 1972). My Brothers do not explicitly indicate the standard u.pon which they base their reversal of the District Court’s ruling. The determination that a party has not suffered prejudice constitutes a finding of fact, a finding universally deemed to be reversible only if it can fairly be said that the finding is clearly erroneous. See United States v. Mays, 549 F.2d 670, 679-80 (9th Cir. 1977) (district court finding of actual prejudice overturned because “clearly erroneous”). Under that standard the unequivocal factual finding that the delay substantially prejudiced appellee’s defense should not be overturned.

The determination of whether pre-accusation delay has violated a defendant’s right to due process cannot be made in the abstract. As the Supreme Court has stated, and we have acknowledged, it “will necessarily involve a delicate judgment based on the circumstances of each case.” United States v. Marion, 404 U.S. 307, 325 , 92 S.Ct. *1390 455, 466 , 30 L.Ed.2d 468 (1971), quoted in United States v. Mays, 549 F.2d 670, 678 (9th Cir. 1977). Even a casual reading of the district judge’s carefully written opinion unmistakably reveals that the judge properly engaged in the prescribed balancing process. The judge, who was intimately familiar with the entire case, very carefully weighed the opportunity of the jury to observe Walthers’ demeanor as an element possibly essential for a fair trial. In attempting to minimize the prejudice to ap-pellee, my Brothers emphasize the admissibility at the second trial of Walthers’ cross-examination at the first trial. As a general proposition and in many cases, the use of prior cross-examination testimony may adequately safeguard the rights of an accused, but, here, we have that exceptional case that entreats a different result. The district judge’s reasoning evidences an acute realization of the problem. The judge considered and rejected the prosecutor’s argument that the prior cross-examination minimized the potential prejudice to appellee, finding that the prior recorded testimony would not, of itself, enable a jury adequately to make a fair evaluation of credibility. Although the majority rather lamely writes that “[n]o specific instances or explanations of why Walthers’ demeanor made him unbelievable have been presented,” the district judge specified Walthers’ “unattractive appearance” and his previous personal exhibition as a local inebriate.

The principal vice of the approach taken by the majority lies in its imposition of a more stringent standard of review when it is the prosecution, rather than the accused, that appeals. When we review a conviction of an accused, we invariably and properly refuse to re-evaluate the factual determinations made by a jury or a trial judge so long as there is substantial supporting evidence. All the evidence is viewed in the light most favorable to the prosecution. Glasser v. United States, 315 U.S. 60, 80 , 62 S.Ct. 457 , 86 L.Ed. 680 (1942); United States v. Kelly, 527 F.2d 961, 965 (9th Cir. 1976); Kay v. United States, 421 F.2d 1007, 1010 (9th Cir. 1970). A corollary postulate is that the credibility of witnesses is not re-examined. United States v. Ramos, 558 F.2d 545, 546 (9th Cir. 1977); United States v. Nelson, 419 F.2d 1237, 1241 (9th Cir. 1969). It is intolerable that the standard varies when, on the other hand, an accused prevails in the lower court and the prosecution appeals. The reasonable doubt standard and the fundamental conception of fairness and justice crystallized in the due process clause forbid a court of appeals from discriminating against a defendant by giving reduced credence to findings of fact favorable to him.

The majority also states that “the prosecution had two good reasons to defer the indictment of Arnold.” I note that Lovasco has established that intentional tactical delay by the prosecution is not the only reason for delay that can result in a due process violation. Rather, Lovasco directs a sensitive balancing of the governmental interests and the actual prejudice to the defendant.

The first “good reason,” according to the majority opinion, is that it would have been foolish to try a person who was already imprisoned for life on an unrelated charge. This excuse, however, clearly is not a valid reason for delay. It was merely a convenient decision to avoid work then thought to be unnecessary. That delay was deliberately and intentionally caused, unlike, for example, the delays often necessitated by crowded dockets and understaffed prosecutor’s and public defender’s offices. Courts may countenance intentional delay when the prosecution has reason to continue its investigation of the case or for other legitimate reasons pertaining to the merits of the case itself. See United States v. Lovas-co, supra. Here, on the other hand, the prosecutor’s decision to delay was solely for his own convenience. After the prosecutor had tried appellee once during his incarceration for the unrelated conviction, he came to the conclusion that, wholly apart from the merits of his case against the appellee, a retrial was not in the public interest. The *1391 correctness of his evaluation is irrelevant. When a prosecutor postpones charges and trial for a lengthy period of time because he perceives no public interest in resolving the case, he should be deemed to have assumed the risk that the delay might substantially prejudice the accused. Or, putting it another way, the accused should not be penalized for such tactical and mistaken inaction for which he was in no way at fault.

Supreme Court precedent lends analogous support to my position. In a case construing the right to a speedy trial, Dickey v. Florida, 398 U.S. 30 , 90 S.Ct. 1564 , 26 L.Ed.2d 26 (1970), the Court ruled that when the State of Florida had delayed prosecution for almost eight years while the accused was in federal custody on -another charge, “no valid reason for the delay existed; it was exclusively for the convenience of the State. On this record the delay with its consequent prejudice is intolerable as a matter of fact and impermissible as a matter of law.” Id. at 38 , 90 S.Ct. at 1569 ; see Taylor v. United States, 98 U.S.App.D.C. 183 , 238 F.2d 259 (1956) (25 months delay between indictment and trial not justified by imprisonment in state institution); United States v. Reed, 285 F.Supp. 738 (D.D.C. 1968). While the speedy trial test differs from the due process test for pre-accusation delay, each test requires an inquiry into the reasons for delay. In Dickey , as in this case, deaths of potential witnesses prejudiced the accused. In both cases the accused was at all times readily available for trial. In the circumstances here, I find the delay in charging and trying the appellee neither more reasonable nor less prejudicial than in Dickey . By reaching this conclusion I do not intend to suggest that a .reason that is inadequate to justify the postponement of a speedy trial could never justify the delay of charges or arrest. Such determinations must await the peculiar facts of each case.

The majority advances a second reason for the delay, stating that “the prosecution fairly exercised its prosecutorial discretion to delay indictment until sufficient evidence existed to obtain a conviction.” My examination of the record reveals absolutely no support for the implication that the prosecution dismissed the charges for the purpose of conducting further investigations or marshalling new evidence. Even the deputy district attorney who prosecuted the case has not claimed that he conducted investigations between the time of dismissal and the time of renewal of the charges. At the second trial three witnesses who had not testified originally presented new evidence against the appellee, but the record does not indicate when or how the prosecution unearthed these witnesses. It is likely, as the district judge doubtless inferred, that the prosecutor either knew of the witnesses’ possible testimony before the first trial and decided not to present it or discovered it in an investigation conducted after the renewal of charges.

Finally, I quote a perceptive, although restrained, remark of the district judge:

My review of the whole record leads me to believe that bad faith was, in truth, the genesis of the second prosecution, that it would never have occurred had the conviction on the other charge not been reversed, and that, in the light of the entire chain of circumstances, the district judge reached the only conclusion that can mesh with the fair considerations of justice that should always prevail in our Nation.

I would affirm.