                    United States Court of Appeals
                               FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 99-1249
                                     ___________

United States of America,                 *
                                          *
                            Appellee,     *        Appeal from the United States
                                          *        District Court for the Northern
            v.                            *        District of Iowa
                                          *
Robert Kye Sturdy                         *
                                          *
                                          *
                            Appellants.   *

                                     ___________

                            Submitted: December 14, 1999

                                Filed: March 16, 2000
                                    ___________

Before BEAM, Circuit Judge, HEANEY, Senior Circuit Judge, and KYLE, District
Judge.1


KYLE, District Judge.


      On April 24, 1998, a jury convicted Robert Kye Sturdy (“Sturdy”) of possession


      1
       The HONORABLE RICHARD H. KYLE, United States District Judge for
the District of Minnesota, sitting by designation.

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with intent to distribute methamphetamine, possession with the intent to distribute
marijuana, carrying a firearm during and in relation to a drug trafficking offense, and
possession of a firearm as a previously convicted felon. The district court2 sentenced
Sturdy to a term of imprisonment of 600 months. On appeal, Sturdy challenges the
sufficiency of the evidence used to convict him and the 21-month delay between his
arrest and his indictment. We affirm.


I.    Background


       On May 17, 1995, Special Agent Scott Gray (“Gray”) of the FBI received a call
from Bill Price (“Price”), a resident of Waterloo, Iowa, who stated that Sturdy had been
to his house that afternoon offering to sell methamphetamine and marijuana. Price
provided a description of Sturdy, and also told Gray that Sturdy was driving a white
van with Texas license plates and staying at a hotel in the area. Gray searched for the
vehicle and found a white van with Texas plates at a Waterloo motel. Gray and
Investigator John Pederson (“Pederson”) began surveillance of the van. That evening,
Gray and Pederson observed the van leaving the parking lot. In separate vehicles, the
agents followed the van until it turned off a main highway. Gray and Pederson broke
off their surveillance of the van by continuing along the highway. As Pederson drove
past the van, he observed the driver as a white male with short blonde hair and glasses.
This agent later identified Sturdy as the driver when Sturdy was arrested that night.




      2
        The HONORABLE MICHAEL J. MELLOY, Chief Judge, United States
District Judge for the Northern District of Iowa.

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      After the van turned, Special Agent Mark Terra (“Terra”) assumed surveillance
of the van. Terra observed the driver of the van as the van approached his position, and
later identified Sturdy as the driver. Terra followed the van to a residential address in
Waterloo, where it stopped. At that point, Terra turned over the surveillance to
investigators Mark Meyer and Randall Hammitt. This team followed the van for a few
blocks after it left the residence, and requested that a marked squad car make a traffic
stop of the van. During the traffic stop, the driver refused to obey the patrolman’s
commands and sped away from the scene. Meyer testified that before the van left, he
was able to see the driver’s right profile. When Meyer arrested Sturdy later that
evening, he recognized Sturdy as the van driver.


      At least two police cars engaged in the chase of the van. At some point during
the chase, officers saw the driver throw a duffel bag out of the van onto a residential
driveway. The lead car alerted trailing cars of the bag’s location, and a trailing team
picked up the bag. An inventory of the bag revealed that it contained, among other
items, approximately $20,000 in cash, a loaded handgun, a digital scale, quantities of
methamphetamine and marijuana in cloth bags, two pages of Exel Inn notepaper
containing a list of numbers with corresponding references to “pot,” “speed,” “van,”
“room,” and “gas,” and a prescription pill bottle bearing the name Robert Sturdy.


      The chase ended after the van turned onto an unimproved road and crashed into
a house. The pursuing officers, who had briefly lost sight of the van, exited their
vehicles and ran to the driver’s side of the van. Upon finding the van unoccupied, the
officers began to search for the driver. Meyer found Sturdy running behind a house
about a block and a half away and arrested him. A search of Sturdy’s person revealed
$2000 in cash, a telephone calling card in the name of Bryan Russell, credit cards in

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the name of Robert Sturdy, a date book, and paper with numbers and terms on it. In
addition, it was later determined that Sturdy had several cracked ribs. A search of the
van produced a wallet with a driver’s license, Social Security card, and credit cards for
Robert Sturdy, and a Texas driver’s license for Bryan Russell with the photograph cut
out. Police also found additional drug paraphernalia and correspondence addressed to
Robert Sturdy in the van.


      Police continued the investigation at the motel where Gray first observed the
white van. Investigators discovered that one of the rooms had made a phone call to
Texas. The registration card for that room had been signed by a “Bryan Russell” and
listed the license plate number of the van involved in the chase. Officers secured that
room and obtained a search warrant.


      When the police made contact with the occupants of the room, they encountered
a woman who identified herself as “Christine Sage.” Police later identified her as
Jaime Maggard (“Maggard”). A search of the room produced a phone bill for Robert
Sturdy, a cloth bag similar to the bags found in the duffel bag thrown from the van,
various drug paraphernalia, a drugstore receipt for Robert Sturdy, and a notebook
containing a marriage license, birth certificates, and stock certificates with the names
covered in white-out and the names “Bryan Edward Russell” and “Christine Lynn
Sage” written in.


      At trial, the government elicited testimony from the law enforcement officers
involved detailing the facts listed above. Additionally, the government presented the
informant who Sturdy visited on May 17, 1995, and Bryan Edward Russell of Lone
Oak, Texas, who testified that his truck and his wallet had been stolen in Texas about

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three months before the incident. The defense called Bret Brown (“Brown”), an
acquaintance of Sturdy, and Maggard as witnesses. Both witnesses testified that Sturdy
and Maggard were in Waterloo with a “Bryan Russell” to purchase a van for Brown,
and that this “Bryan Russell,” not Sturdy, was driving the van during the police
surveillance and chase of the vehicle. Maggard testified that Sturdy was with her and
another friend, when they happened to pass the white van as it was being chased by
police. According to Maggard, Sturdy was at the crash site because she and Sturdy
followed the van in their vehicle and Sturdy ran to the van when he realized that it had
crashed into a house.


II.   Sufficiency of the Evidence


      Sturdy has challenged the sufficiency of the evidence supporting his conviction.
“In reviewing the sufficiency of the evidence to support a guilty verdict, we look at the
evidence in the light most favorable to the verdict and accept as established all
reasonable inferences supporting the verdict.” United States v. Davis, 154 F.3d 772,
786 (8th Cir. 1998) (quoting United States v. Plenty Arrows, 946 F.2d 62, 64 (8th Cir.
1991)), cert. denied, 119 S. Ct. 1072, 1078, 1090 (1999). “We will reverse only if ‘no
reasonable jury could have found the defendant guilty beyond a reasonable doubt.’”
United States v. Escobar, 50 F.3d 1414, 1419 (8th Cir. 1995) (quoting United States
v. Frayer, 9 F.3d 1367, 1371(8th Cir. 1993)).


      In this case, there is more than sufficient evidence to support the jury’s verdict.
Three law enforcement officers observed the driver at three different points in time
–both before and after the van stopped at a house in Waterloo– and subsequently
identified Sturdy as the driver. Furthermore, the physical evidence obtained from

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searches of Sturdy, the van, and the motel room corroborated the officers’ testimony
that Sturdy was driving the van and the government’s allegation that Sturdy was using
the name “Bryan Russell” as an alias while in Waterloo, Iowa. Finally, the testimony
of Bryan Russell cast substantial doubt on the version of events offered by Sturdy and
the defense witnesses. Thus, ample evidence exists to support the jury’s determination
that Sturdy, not Bryan Russell, was driving the van, and that Sturdy possessed the
drugs and firearm found in the duffel bag. Accordingly, we find that Sturdy’s challenge
to the sufficiency of the evidence is without merit.


III.   Delay between arrest and sentencing


       Sturdy also appeals his conviction based on the 21-month delay between his
arrest and his arraignment on the charges presented at trial. The Due Process Clause
of the Fifth Amendment protects a criminal defendant against unreasonable pre-
indictment delay. See United States v. Bartlett, 794 F.2d 1285, 1289 (8th Cir. 1986).
To prove a violation of his due process rights, Sturdy must establish that: (1) the delay
resulted in actual and substantial prejudice to the presentation of the defense; and (2)
the government intentionally delayed his indictment either to gain a tactical advantage
or to harass him. See United States v. Brockman, 183 F.3d 891, 895 (8th Cir. 1999),
cert. denied, 120 S. Ct. 800 (2000). The court will inquire into the reasons for delay
only where actual prejudice has been established. See United States v. Savage, 863
F.3d 595, 598 (8th Cir. 1988). “To prove actual prejudice, a defendant must
specifically identify witnesses or documents lost during delay properly attributable to
the government.” Bartlett, 794 F.2d at 1290. It is not sufficient for a defendant to
make speculative or conclusory claims of possible prejudice as a result of the passage
of time. See Brockman, 183 F.3d at 895. Finally, it is the defendant’s burden to show

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that the lost testimony or information is not available through other means. See
Bartlett, 794 F.2d at 1290. In the instant case, the district court found that Sturdy failed
to establish actual prejudice. We review the district court’s decision for clear error.
See id. at 1291 n.7.


       Sturdy alleges that the delay prejudiced his defense because he was unable to
locate the hotel clerk who could identify the person who rented the motel room
searched by the police on May 17, 1995. The district court found this assertion of
prejudice “extremely speculative.” We agree. It was not clear error for the district to
court to find speculative the prospect that the lost hotel clerk would have identified
someone other than Sturdy, or, for that matter, anyone at all. Indeed, one of the motel
clerks who did testify at trial stated that she rarely remembered any guests other than
the motel’s “regulars.” Furthermore, Sturdy has failed to establish that this testimony
was not available through other sources. See Bartlett, 794 F.2d at 1290. Maggard
testified at trial that someone other than Sturdy rented the room in question, namely
Bryan Russell. Thus, Sturdy was able to introduce evidence regarding the identity of
the individual who rented the motel room despite the pre-indictment delay.


       Because the lost testimony was both speculative and available through other
sources, the district court did not commit clear error in holding that Sturdy had not met
his burden of showing actual and substantial prejudice. Accordingly, we affirm the
denial of Sturdy’s motion to dismiss for pre-indictment delay.
IV.    Conclusion


       For the reasons stated above, we affirm the judgment of the district court.



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A true copy.


               Attest:


                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT




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