UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                        No. 95-5948

JOHN BURTON,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Herbert N. Maletz, Senior Judge, sitting by designation.
(CR-95-88-Y)

Argued: June 2, 1997

Decided: July 17, 1997

Before RUSSELL and HAMILTON, Circuit Judges, and
HOWARD, United States District Judge for the
Eastern District of North Carolina, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Beth Mina Farber, Assistant Federal Public Defender,
Greenbelt, Maryland, for Appellant. Joyce Kallam McDonald, Assis-
tant United States Attorney, Baltimore, Maryland, for Appellee. ON
BRIEF: James K. Bredar, Federal Public Defender, Greenbelt, Mary-
land, for Appellant. Lynne A. Battaglia, United States Attorney, Balti-
more, Maryland, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

John Burton appeals his conviction of conspiracy to steal govern-
ment property in violation of 18 U.S.C. § 371 and substantive counts
of theft of government property in violation of 18 U.S.C. § 641. We
affirm.

I.

John Burton was an employee in the warehouse of the Defense
Reutilization and Marketing Office ("DRMO") at the Aberdeen Prov-
ing Ground, Aberdeen, Maryland. The DRMO is part of the United
States Department of Defense and DRMOs are located at military
bases throughout the United States. The DRMO's purpose is to
receive excess property from Defense Department agencies and to
detain the property for inspection by other federal, state, local and
donee agencies which may take the property into their inventory if
they can use it, i.e., reutilization. If the property is not reutilized by
these agencies, it is held for public auction. Property in poor condition
which cannot be reutilized is sent to the scrap yard to be sold for its
basic material content.

Each Defense Department agency turning in property to the
DRMO "grades" the property they turn in by giving it an alpha desig-
nation to show its condition. Property coded "A" represents new prop-
erty, while Codes F, G, and H represent used property. The
employees of the warehouse at Aberdeen Proving Ground had limited
authority to authorize property scrapped if the property was coded F,
G, or H, its purchase price was under $25,000, and they believed the
property was no longer usable.

Certain agencies authorized Burton to change their alpha code.
Only Burton, his supervisor, and one other individual were authorized

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at DRMO to change the alpha codes provided by the turn-in agencies.
The government presented evidence that by altering the code, Burton,
on his own and in a conspiracy with others, converted government
property for his own profit.*

II.

On March 2, 1993, Appellant John Burton was arrested by federal
agents on a criminal complaint charging theft of government property
in violation of 18 U.S.C. § 641. The complaint was dismissed by the
government on March 18, 1994, before a preliminary hearing was
held. On February 23, 1995, a grand jury indicted Burton on nine
counts, including one count of conspiracy to steal government prop-
erty in violation of 18 U.S.C. § 371, and eight substantive counts of
theft of government property with a value in excess of $100 in viola-
tion of 18 U.S.C. § 641. The jury returned a guilty verdict on all but
one of the counts.

III.

Burton first contends that the government's delay of almost one
year between Burton's arrest and indictment violated his Fifth
Amendment Due Process rights. In United States v. Automated Medi-
cal Lab., Inc., 770 F.2d 399 (4th Cir. 1985), this court held that when
determining whether preindictment delay violates the Fifth Amend-
ment's Due Process Clause, the following two-pronged analysis is to
be applied:

           First, a court must assess whether the defendant has suffered
           actual prejudice, and the burden of proving such prejudice
           is clearly on the defendant. If the threshold requirement of
           actual prejudice is met, the court must then consider the
           Government's reasons for the delay, balancing the prejudice
           to the defendant with the Government's justification for
           delay . . . . The basic inquiry then becomes whether the
           Government's action in prosecuting after substantial delay
_________________________________________________________________
*The evidence revealed that Burton would scrap the property to facili-
tate his theft of it and would then sell or trade the stolen military equip-
ment and clothing.

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          violates "fundamental conceptions of justice" or "the com-
          munity's sense of fair play and decency."

Id. at 403-04 (citations omitted); see also Jones v. Angelone, 94 F.3d
900, 904 (4th Cir. 1996). Here, the district court found that Burton
failed to establish the threshold prejudice requirement.

As a mixed question of law and fact, the district court's finding of
no prejudice will be reversed only if clearly erroneous. United States
v. Beszborn, 21 F.3d 62, 66 (5th Cir.), cert. denied, 513 U.S. 934
(1994). Speculative or conclusory assertions of prejudice do not suf-
fice to show prejudice. United States v. Bartlett, 794 F.2d 1285 (8th
Cir. 1986). The defendant's burden is a heavy one. Not only must he
show actual prejudice but also that the prejudice is substantial. That
is, Burton must show that he was meaningfully impaired in his ability
to defend against the government's charges to the extent that the dis-
position of the criminal proceeding was likely affected. Jones, 94
F.3d at 908.

Burton contends he was prejudiced primarily because between the
time of his original arrest on March 2, 1994, and his indictment on
February 23, 1995, he lost the testimony of his key witness, John
Shafer. Shafer, who was Burton's supervisor at DRMO, died on Janu-
ary 31, 1995. Burton claims that it was Shafer who instructed him to
scrap out the items which formed the subject of Counts Two through
Nine of the indictment. Burton asserts Shafer's testimony was crucial
because it would have formed a defense to the charge of felony theft
and affected his sentencing.

When the actual prejudice claimed by the defendant is the
unavailability of witnesses, a defendant is generally required to "iden-
tify the witness he would have called; demonstrate, with specificity,
the expected content of that witness' testimony; establish to the
court's satisfaction that he has made serious attempts to locate the
witness; and finally, show that the information the witness would
have provided was not available from other sources." Jones v.
Angelone, 94 F.3d at 908. Although Burton has identified the witness
he was unable to call due to the preindictment delay and what that
witness' testimony may have been, he has not shown that the sub-
stance of Shafer's testimony was unavailable from another source. In

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fact, the district court noted that Burton's immediate supervisor and
coworkers were available to testify as to the general policies and pro-
cedures at DRMO. J.A. at 92. Furthermore, the trial court correctly
noted that the hypothetical testimony of Shafer would have been irrel-
evant to Burton's alleged violation of 18 U.S.C.§ 371. Based on Bur-
ton's limited showing of prejudice, the trial court did not err in
determining that the actual prejudice to Burton was minimal.

Even were the court to assume that Burton suffered some slight
prejudice as a result of the delay, application of the second prong of
Automated Medical Lab. analysis shows that his due process rights
were not violated. The government presented evidence demonstrating
that the preindictment delay occurred during the time when federal
agents traced down the seized property and interviewed those who
had turned it in to the DRMO. Another reason for the preindictment
delay was that the Assistant United States Attorney originally
assigned to the case became ill, and the case had to be reassigned.
While the United States may have acted more promptly in this case,
careful consideration and a thoroughness of investigation is the more
prudent route. Any prejudice to Burton caused by the delay is out-
weighed by the government's compelling reasons justifying the pre-
indictment delay. Accordingly, this assignment of error is dismissed.

IV.

Burton next argues that the district court erred in enhancing his
sentence by two points for an "abuse of a position of trust" under the
United States Sentencing Guidelines § 3B1.3. The Sentencing Guide-
lines authorize a two-point upward adjustment for an abuse of trust.
Section 3B1.3 provides:

          If the defendant abused a position of public or private trust,
          or used a special skill, in a manner that significantly facili-
          tated the commission or the concealment of the offense
          increase by 2 levels.

In addition, the Application Note to this section states that:

          "Public or private trust" refers to a position of public or pri-
          vate trust characterized by professional or managerial dis-

                     5
          cretion (i.e. substantial discretionary judgment that is
          ordinarily given considerable deference). Persons holding
          such positions ordinarily are subject to significantly less
          supervision than employees whose responsibilities are pri-
          marily non-discretionary in nature.

The trial court's determination that Burton abused a position of trust
will be reversed only if "clearly erroneous."

Burton contends that he did not occupy a position of trust at the
warehouse because others who were similarly employed had the same
authority. Burton admits that he had authority to change condition
codes on certain property.

Burton's argument focuses on the fact that he had the lowest posi-
tion in the warehouse and that other employees had the same, if not
greater, authority than he. This argument alone does not dictate that
the trial court's determination was clearly erroneous. Burton pos-
sessed sufficient discretion in his job to qualify him for the enhanced
two-point penalty. Burton, as well as others, was authorized to change
conditions codes in property and to scrap them. Burton used this
authority to facilitate stealing government property for his own profit.
Accordingly, the trial court's determination that Burton abused a posi-
tion of trust pursuant to U.S.S.G. § 3B1.3 is affirmed.

V.

Last, Burton presents three assignments of error in a subsequently
filed pro se supplemental brief. These contentions are without merit.

First, Burton argues that the Speedy Trial Act should run from
March 2, 1994, as though the complaint were not dismissed, since he
did not have knowledge of its dismissal until May 18, 1995. Since the
dismissal of the complaint is a matter of public record, Burton is
deemed to have knowledge of it from the date of its dismissal. In
addition, Burton's counsel acknowledged at trial that Burton's speedy
trial argument was no longer applicable. J.A. at 19. Accordingly, this
claim fails.

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Next, Burton contends that he received ineffective assistance of
counsel, primarily because his defense counsel failed to produce suffi-
cient expert witnesses and failed to object to certain evidence at trial.
A claim of ineffective assistance of counsel is not cognizable on
direct appeal unless the counsel's deficient performance plainly
appears on the face of the record. See United States v. DeFusco, 949
F.2d 114 (4th Cir. 1991). Because ineffective assistance does not
plainly appear on the face of the record, Burton presents no meritori-
ous issue.

Finally, Burton claims in his supplemental pro se brief that items
were illegally seized by investigators from his house and barn based
on an improper search warrant. Since Burton did not object to the evi-
dence from the search or move to suppress it at his trial, he waived
any challenge to the constitutionality of the search.

VI.

For the foregoing reasons, the conviction of Appellant is affirmed
in all respects.

AFFIRMED

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