The revised opinion adhered to the view that the entire period from the offense to the unsealing of the indictment was relevant in assessing prejudice. This opinion abandoned the distinction between 'legitimate' and 'strong' prosecutorial interests, and concluded instead that 'when the defendant can show substantial actual prejudice, the indictment must be dismissed, for even a legitimate prosecutorial interest is then insufficient to effectuate statute of limitations policies.' Id. Although the rehearing petition was initially denied, a majority of the panel subsequently vacated its order denying the petition and substituted a revised opinion. The Government then petitioned the panel for rehearing, with a suggestion for rehearing en banc, as to Muse.

Judge Friendly, in dissent, argued that no significant prejudice had been shown, and that the Government had established as strong a prosecutorial interest as was needed to justify the delay. Given this prejudice to the defendant, the panel concluded, 'the Government must show that the delay is justified by a strong prosecutorial interest, not simply by a legitimate interest.' Id. But with respect to the third defendant, Muse, the panel found that he had been significantly prejudiced by the length of time that had passed since the commission of the crime, as he could not remember relevant dates when testifying on his own behalf. 1 A panel of this Court rejected Watson's and Whitley's claims, concluding that these two defendants were not prejudiced by the delay, and that the delay was justified by the Government's need to locate them. The jury returned verdicts of guilty against all three defendants, and they appealed, claiming, among other things, that the delay in unsealing the indictment denied them the protection of the statute of limitations. Muse, Watson, and Whitley were tried together in the United States District Court for the Eastern District of New York before Judge Charles P. Since in this case there is no basis for claiming that prejudice occurred during any of the time the indictment was sealed, we reinstate the judgment of conviction and leave for another day the issue of whether the relevant period for assessing prejudice should be only the post-limitations portion of the period during which an indictment is sealed. We now hold that in determining prejudice to the defendant, the relevant time period is no longer than the time between the sealing of the indictment and its unsealing. We granted a rehearing en banc because the issue presented, though arising infrequently, is important in the administration of criminal justice. Believing that prejudice had occurred because during that period the memory of appellant Muse had faded, the panel reversed his conviction. The panel that first considered this appeal held, by a divided vote, that an indictment timely filed under seal and not unsealed until after the limitations period must be dismissed whenever the defendant can show 'substantial actual prejudice' occurring any time during the entire period between the date of the crime and the unsealing of the indictment. The issue in this case is to determine the relevant period of time in which such a claim of prejudice is to be assessed. When this occurs, a defendant can be expected to claim that he has suffered prejudice because of the long delay between the date of the offense charged and the unsealing of the indictment. A sealed indictment is timely even though the defendant is not apprehended and the indictment is not made public until after the end of the statutory limitations period. Rule 6(e) of the Federal Rules of Criminal Procedure permits a district court to direct that a timely-filed indictment may be sealed until the defendant is in custody.

An indictment charging a criminal offense is subject to dismissal if it is not filed within the period of time established by the statute of limitations for that offense.

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