UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 96-4517

DONALD F. JONES, a/k/a J.R.,
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of West Virginia, at Clarkesburg.
Joseph Robert Goodwin, District Judge.
(CR-95-17)

Submitted: December 31, 1996

Decided: January 21, 1997

Before HAMILTON and WILLIAMS, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Scott A. Curnutte, Elkins, West Virginia, for Appellant. William D.
Wilmoth, United States Attorney, Thomas O. Mucklow, Assistant
United States Attorney, Wheeling, West Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION

PER CURIAM:

Appellant Donald F. Jones was involved in a serious car accident
in January 1993. Officers detected the odor of alcohol on Jones's
breath, and crack cocaine was found at the scene. Jones was arrested
and processed on a DUI charge. A test administered approximately
one and a half hours after the accident showed Jones with a BAC of
.144. Jones claimed that he consumed forty-eight to sixty beers and
smoked three-quarters of an ounce of strong marijuana (approxi-
mately ten joints) during the course of the day. After the test, Jones
was placed in a room for approximately two and a half hours. During
this time, he was free to use the restroom and to obtain refreshments,
but he was not interrogated. While Jones was in custody, he was
advised of his rights and signed a written waiver. Finally, Jones told
one of the officers that he wanted to make a statement and confessed
that the cocaine belonged to him. Jones was again informed of his
rights, waived his rights, and made a taped confession.

Jones was indicted on one count of possessing crack cocaine with
intent to distribute in August 1995. Prior to trial, defense counsel filed
motions to suppress Jones's confession and to dismiss the indictment
due to pre-accusatory delay. Both motions were denied. On appeal,
Jones argues that the district court erred by denying his motions to
suppress his confession and to dismiss the indictment due to pre-
accusatory delay. Jones also contends that the district court abused its
discretion by denying his motion to dismiss the indictment, or, alter-
natively, to exclude evidence based on untimely production of discov-
ery materials. Finding no reversible error, we affirm.

Jones first asserts that his confession was involuntary and should
have been suppressed because it was obtained while he was under the
influence of drugs and alcohol. This court reviews the district court's
ultimate conclusion de novo, but its factual findings are reviewed for
clear error. United States v. Han, 74 F.3d 537, 540 (4th Cir.), cert.
denied, ___ U.S. ___, 64 U.S.L.W. 3807 (U.S. June 3, 1996) (No. 95-
8891); United States v. Williams, 10 F.3d 1070, 1077 (4th Cir. 1993),
cert. denied, ___ U.S. ___, 63 U.S.L.W. 3292 (U.S. Oct. 11, 1994)
(No. 93-9441). We do not review a trier of fact's assessment of credi-

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bility of witnesses. United States v. Saunders , 886 F.2d 56, 60 (4th
Cir. 1989).

We find the district court did not err in denying Jones's motion
because Jones failed to present any credible evidence of coercive
police activity. Colorado v. Connelly, 479 U.S. 157, 167 (1986)
("coercive police activity is a necessary predicate to the finding that
a confession is not `voluntary' within the meaning of the Due Process
Clause of the Fourteenth Amendment."). Accordingly, we decline to
address whether Jones's level of impairment rendered his confession
involuntary.

Jones next asserts that he was prejudiced by the delay between the
date of the offense (January 1993) and the date of his indictment
(August 1995). Jones contends that the memories of the Govern-
ment's witnesses faded with the passage of time and that these wit-
nesses might have testified that Jones was severely impaired when he
made his confession had the delay been shorter and their memories
fresher. We find this argument without merit. The district court prop-
erly found that Jones failed to meet the threshold requirement of
showing actual prejudice from the delay. See United States v. Auto-
mated Medical Labs., Inc., 770 F.2d 399, 403-04 (4th Cir. 1985) (to
maintain a claim that pre-indictment delay has violated the defen-
dant's due process rights, the defendant must first show that he suf-
fered actual prejudice from the delay; then the defendant must show
that the prejudice outweighs the Government's justification for the
delay). At most, Jones only offered the highly speculative argument
that these witnesses might have testified that he was severely
impaired at the time of his confession. As stated above, Jones's level
of impairment is only relevant after a showing of coercive police
activity, which he failed to make. Since Jones failed to meet the
threshold requirement, he suffered no actual prejudice from the delay
and we need not balance any prejudice against the Government's rea-
sons for the delay.

Finally, Jones contends that the district court should have dis-
missed the indictment, or, alternatively, excluded certain evidence
because the Government did not timely produce the materials under
local rules. Jones complains that the Government did not provide an
updated witness list to the defense prior to trial and that the Govern-

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ment provided a copy of a six-line note from one witness and a two
and a half page statement from Jones's co-defendant, who had
recently pled guilty, only one day prior to trial.

The district court's decision on how to handle delayed disclosure
of discovery materials should be upheld absent a clear abuse of dis-
cretion. United States v. Sepulveda, 15 F.3d 1161, 1179 (1st Cir.
1993), cert. denied, ___ U.S. #6D6D 6D#, 62 U.S.L.W. 3842 (U.S. June 20,
1994) (No. 93-8581). Even if we found that the Government's actions
rose to the level of prosecutorial misconduct, reversal is not warranted
unless the defendant has been prejudiced by the misconduct. United
States v. Brockington, 849 F.2d 872, 875 (4th Cir. 1988). Generally,
there is no prejudice if the material is made available in time for its
effective use at trial. United States v. Smith Grading & Paving, Inc.,
760 F.2d 527, 532 (4th Cir.), cert. denied, 474 U.S. 1005 (1985).

We find that the district court did not abuse its discretion in deny-
ing Jones's motion. Defense counsel stated that he could effectively
review the materials prior to trial the next morning. In addition, Jones
fails to show any prejudice from the individual materials. The defense
was fully aware of all of the Government's witnesses several months
before the trial and had the opportunity to interview and cross-
examine them. Moreover, there is nothing in the record suggesting
that the Government used the other materials or that Jones was preju-
diced by any such use.

We therefore affirm the findings and sentence of the district court.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.

AFFIRMED

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