MEMORANDUM & ORDER Defendants Anthony Romanello, Luan Bexheti, and Joseph Celso await trial on charges of extortionate collection of credit and conspiracy. See Indictment 1-2, ECF No. 1. Romanello moves to dismiss the charges against him on three grounds: (1) preindictment delay; (2) selective or vindictive prosecution; and (3) failure to state an offense. Romanello’s Mot. for Omnibus Relief 1, ECF No. 46. Alternatively, Romanello moves to sever his case from Bexheti’s. Mot. 2. For the reasons set forth below, these motions are denied. I. Discussion A. Preindictment Delay Romanello first moves to dismiss based on preindictment delay under Federal Rule of Criminal Procedure 12(b)(3)(A)(ii). He argues that the government violated his due process rights by indicting him on April 29, 2022 for conduct that occurred “between March 2017 and June 2017″ — near the end of the five-year statute of limitations period. Indictment 1; see Romanello’s Mem. Supp. Mot. for Omnibus Relief (“Romanello Mem.”) 2-3, ECF No. 48. According to his attorney’s affidavit, this delay prejudiced him: one potential witness, Anthony Federici, recently died, and “it is believed” that “some of the eyewitnesses” to the allegedly extortionate collection event no longer work at the restaurant where it occurred. Id. at 3. Other witnesses’ “recollections have dimmed with the lengthy passage of time.” Decl. of Gerald J. McMahon (“McMahon Decl.”) 12, ECF No. 47. Romanello’s brief also indicates that he has experienced “noticeable diminishment in his [own] cognitive and physical abilities” due to advancing age, which may inhibit his ability to testify. Romanello Mem. 3. SThe applicable statute of limitations is the “primary guarantee” against prosecution on stale criminal charges. United States v. Ewell, 383 U.S. 116, 122 (1966). Prosecutions initiated within the limitations period carry a “strong presumption of validity.” United States v. Cornielle, 171 F.3d 748, 752 (2d Cir. 1999).1 When a case is brought within the statutory period, a defendant seeking dismissal bears the “heavy burden” of “proving” both actual prejudice to his right to a fair trial and that the government’s delay “was an intentional device to gain a tactical advantage over the accused.” Id. at 752. The proof of “actual prejudice” must go beyond the “real possibility of prejudice inherent in any extended delay: that memories will dim, witnesses [will] become inaccessible, and evidence [will] be lost.” United States v. Marion, 404 U.S. 307, 326 (1971). And the government’s conduct must be “unjustifiable.” United States v. Elsbery, 602 F.2d 1054, 1059 (2d Cir. 1979). The parties do not dispute that the government brought this case within the statute of limitations. Thus, Romanello must prove both actual prejudice and that the government intentionally and unjustifiably delayed for tactical advantage. He has not adequately alleged — let alone proven — either. Romanello’s assertion of prejudice is brief and unconvincing.2 He points to the death of “a witness, Anthony Federici” and the “disappear[ance]” of other unnamed “ potential witnesses.” Romanello Mem. 3; McMahon Decl. 12. Yet Romanello never alleges that any such witness — including Federici — would have testified favorably. See United States v. King, 560 F.2d 122, 130 (2d Cir. 1977) (death of a named witness was insufficiently prejudicial where the defense gave no indication that testimony would have “aided their case”). Indeed, Romanello does not allege what, specifically, Federici witnessed. Romanello also contends that time has dimmed witnesses’ memories, but that is the very “possibility of prejudice inherent in any extended delay” that has been held inadequate to establish actual prejudice. Marion, 404 U.S. at 326. Romanello also fails to allege with any specificity how his advancing age will prevent him from receiving a fair trial. Romanello additionally fails to carry his “heavy burden” of showing tactical delay on the government’s part. See Cornielle, 171 F.3d at 752. Instead, he speculates — without factual support — that the government delayed his indictment “hoping” that he would engage in further criminal activity. Romanello Mem. 2-3. Similarly, he does not contend (let alone cite evidence) that the government delayed in the hopes of rendering Federici unavailable to testify in his defense.s Romanello also argues that his history with the U.S. Attorney’s Office for this district proves that the government delayed this prosecution for tactical advantage. He asserts that this is not the first time the Office has indicted him late in a limitations period. Romanello Mem. 3 (“Thirteen years ago, this same prosecutor’s office waited ten years after all evidence of criminality had been obtained before charging Mr. Romanello.”). Romanello argues that this “pattern” of eleventhhour indictments is “at best…unseemly and inappropriate” and “at worst…violative of Mr. Romanello’s right to due process.” Romanello Reply 3. But Romanello proffers even fewer specifics regarding the prior prosecution than this one, and his theory does not — without specific evidence in support — come close to establishing that the government action here was “unjustifiable.” See Elsbery, 602 F.2d at 1059. In the end, Romanello merely invokes two instances of government action that were both presumptively permissible, carried out by different generations of Assistant U.S. Attorneys. He does not establish a prima facie case that any instant delay was tactical. The motion to dismiss for preindictment delay is denied. B. Vindictive Prosecution Romanello also moves to dismiss under Rule 12(b)(3)(A)(iv), asserting vindictive prosecution in violation of the Due Process Clause of the Fifth Amendment.3 Vindictive prosecution occurs when a charging decision is made “solely” in retaliation for “the defendant’s exercise of a protected legal right, rather than the prosecutor’s normal assessment of the societal interest in prosecution.” United States v. Goodwin, 457 U.S. 368, 380 n.11 (1982). An indictment may be dismissed on this basis in two circumstances: if “there is a presumption of vindictiveness that has not been rebutted by objective evidence justifying the prosecutor’s action” or “if there is a finding of ‘actual’ vindictiveness.” United States v. Johnson, 171 F.3d 139, 140 (2d Cir. 1999). Here, Romanello ascribes a vindictive motive to the prosecution based in large part on a “promise” that he claims two FBI agents made to him in 2010: that “he would be arrested on an old gambling charge if he did not become a cooperating witness for the government.” Romanello Mem. 4. Romanello declined to cooperate, and he claims that the U.S. Attorney prosecuted him for racketeering conspiracy in retaliation for this refusal. See id.; McMahon Decl. 19. That prosecution ended in Romanello’s guilty plea to racketeering conspiracy in 2012. McMahon Decl.
