                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 05-3425
                                   ___________

United States of America,               *
                                        *
             Appellant,                 *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of Nebraska.
Gerald Jackson,                         *
                                        *
             Appellee.                  *
                                   ___________

                             Submitted: March 14, 2006
                                Filed: May 8, 2006
                                 ___________

Before WOLLMAN, FAGG, and RILEY, Circuit Judges.
                           ___________

WOLLMAN, Circuit Judge.

      The government appeals the district court’s dismissal, based on unreasonable
pre-indictment delay, of an indictment against Gerald Jackson. We reverse and
remand for trial.

                                         I.

      In July and August of 2001, the Nebraska State Patrol, the United States Postal
Investigation Service, the Federal Bureau of Investigation (FBI), and the Douglas
County Sheriff’s Office were engaged in an on-line enticement investigation involving
Jackson. During that period, Jackson is alleged to have engaged in sexually
suggestive on-line chats with an agent of the Postal Investigation Service who was
using the identity of “k8tee4fun.” The agent, an adult male, represented to Jackson
that he was a 14-year-old girl.

       On August 14, 2001, law enforcement officers observed Jackson travel to a park
in Omaha, Nebraska, where he was to meet “k8tee4fun.” Jackson did not stop at the
park. Instead, he returned home, where he was arrested by state officials. The FBI
seized Jackson’s computer, and Jackson spent one night in the Douglas County jail.
On August 15, 2001, Jackson was charged in Nebraska state court with conspiracy to
commit sexual assault. The state charges were dismissed on February 11, 2002, on
the ground that, under Nebraska state law, a defendant cannot conspire with an
undercover government agent. Although Jackson’s counsel requested the return of
Jackson’s computer on April 25, 2002, the FBI retained custody of the computer and
indicated to Jackson that a federal investigation was ongoing. The record does not
reflect any further investigation.

       On November 3, 2003, the Nebraska State Patrol presented Jackson’s case,
along with a number of similar cases, to the United States Attorney’s Office. The case
was first assigned to an assistant United States attorney who had never handled an on-
line enticement case and who was planning to retire within the year. As part of his
pre-retirement case processing, this prosecutor assigned a low priority to Jackson’s
case, with the result that no federal charges were filed during the remainder of his tour
of duty, which ended on October 1, 2004. On September 28, 2004, Jackson’s case
was reassigned to another prosecutor. On February 24, 2005, Jackson was indicted
for using a computer to knowingly attempt to persuade, induce, and entice a minor to
engage in sexual activity in violation of 18 U.S.C. § 2422(b). Jackson subsequently
filed a motion to dismiss, arguing that the pre-indictment delay violated his Fifth and
Sixth Amendment rights.




                                          -2-
       A magistrate judge recommended that the indictment be dismissed as a
violation of Jackson’s Sixth Amendment speedy trial rights. The district court,
recognizing that the Sixth Amendment is inapplicable to pre-indictment delay cases,
proceeded to dismiss the indictment on Fifth Amendment due process grounds,
relying largely on Sixth Amendment speedy trial precedents.

                                           II.

       Two provisions of the United States Constitution guard criminal defendants
against unreasonable pre-trial delay. First, the Sixth Amendment provides a right to
a speedy trial in all criminal prosecutions, a protection that attaches to the earlier of
arrest or indictment.1 United States v. Sprouts, 282 F.3d 1037, 1042 (8th Cir. 2002).
Sixth Amendment speedy trial issues are analyzed using the four-factor balancing test
established in Barker v. Wingo, 407 U.S. 514 (1972). This test requires the court to
consider the length of the delay, the reason for the delay, the defendant’s assertion of
his right, and prejudice to the defendant. Sprouts, 282 F.3d at 1042.

       Second, while statutes of limitations provide the primary guarantee against
delay prior to indictment or arrest, the due process clause of the Fifth Amendment
does play a limited role in protecting against oppressive delay. United States v.
Brockman, 183 F.3d 891, 895 (8th Cir. 1999). The Supreme Court has recognized
that “the interests of the suspect and society are better served if, absent bad faith or
extreme prejudice to the defendant, the prosecutor is allowed sufficient time to weigh
and sift evidence to ensure that an indictment is well founded.” United States v. Eight
Thousand Eight Hundred and Fifty Dollars ($8,850), 461 U.S. 555, 563 (1983). As
a result, a defendant must overcome a high hurdle when contending that a pre-

      1
        Although Jackson was arrested by state officials on August 15, 2001, he was
released from custody and the state charges were subsequently dismissed. He does
not claim that his Sixth Amendment speedy trial right attached at the time of that
arrest.

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indictment delay that does not violate the statute of limitations is violative of the due
process clause.

       In contrast to the balancing test used in Sixth Amendment cases, defendants
claiming a due process violation for pre-indictment delay must carry the burden of
proof on two separate elements. The defendant must establish that: (1) the delay
resulted in actual and substantial prejudice to the presentation of his defense; and (2)
the government intentionally delayed his indictment either to gain a tactical advantage
or to harass him.2 United States v. Sturdy, 207 F.3d 448, 452 (8th Cir. 2000); see also
United States v. Grap, 368 F.3d 824, 829 (8th Cir. 2004); Sprouts, 282 F.3d at 1041.

       With all due respect, we conclude that the district court did not adequately
distinguish between the standards for evaluating these two different types of
unreasonable delay claims. Both the district court and Jackson rely on $8,850 and
United States v. Valenzuela-Bernal, 458 U.S. 858 (1982), for the proposition that the
standard governing a Fifth Amendment pre-indictment delay claim is essentially the
same as that for a Sixth Amendment speedy trial claim. See, e.g., D. Ct. Order at 4
(citing $8,550 for the proposition that “[t]he four-factor balancing test of Barker v.
Wingo provides ‘the relevant framework’ to determine whether a delay is reasonable
in the due process context”); id. at 5 (citing Valenzuela-Bernal in support of the
proposition that “[t]he same prejudice requirement is applicable to cases of pre- and
post-indictment delay”). Our reading of both $8,850 and Valenzuela-Bernal leads us
to a different conclusion.

     $8,850 did not involve a criminal indictment. In that case, the Supreme Court
examined whether an eighteen-month delay between the seizure of currency and the

      2
       We note that the Supreme Court has suggested in dicta that the state-of-mind
prong might be satisfied if the government delay was “in reckless disregard of its
probable prejudicial impact upon the defendant’s ability to defend against the
charges.” $8,850, 461 U.S. at 563.

                                          -4-
filing of a civil proceeding for forfeiture violated the claimant’s due process rights.
461 U.S. at 556. There was disagreement over which standard to apply in that
situation. The government argued that “the standard for assessing the timeliness of
the suit [should] be the same as that employed for due process challenges to delay in
instituting criminal prosecutions.” Id. at 563. The Court rejected this argument:

      We reject the Government's suggestion that Lovasco3 provides the
      appropriate test for determining whether the delay violates the due
      process command. . . .

      A more apt analogy is to a defendant's right to a speedy trial once an
      indictment or other formal process has issued. In that situation, the
      defendant no longer retains his complete liberty. . . . In Barker v. Wingo,
      we developed a test to determine when Government delay has abridged
      the right to a speedy trial. The Barker test involves a weighing of four
      factors: length of delay, the reason for the delay, the defendant's
      assertion of his right, and prejudice to the defendant.

Id. at 563-64 (internal citations omitted).

       Although the district court and Jackson are technically correct in saying that
$8,850 involved due process considerations, the Supreme Court distinguished between
criminal cases and civil forfeiture cases and indicated that the Lovasco test and the
four-factor Barker v. Wingo balancing test constitute distinct legal standards. $8,850
is thus not supportive of the assertion that the Barker v. Wingo test is applicable in
pre-indictment delay cases.

      Similarly, Valenzuela-Bernal did not involve a case of pre-indictment criminal
delay. That case involved a claim of prejudice by a criminal defendant convicted of
transporting illegal aliens, who claimed that some favorable witnesses to his defense

      3
       United States v. Lovasco, 431 U.S. 783 (1977), is a seminal case defining the
Fifth Amendment due process test applicable in cases of pre-indictment delay.

                                          -5-
had been deported. The defendant argued that this action had deprived him of his
Fifth Amendment due process rights and his Sixth Amendment right to compulsory
process. 458 U.S. at 861. In addressing whether the loss of these witnesses had
materially compromised the defendant’s defense, the Court discussed its precedents
evaluating prejudice in both the Fifth Amendment pre-indictment delay and Sixth
Amendment speedy trial contexts. In the pre-indictment delay context, the Court
recognized that “when the Government has been responsible for delay resulting in a
loss of evidence to the accused, we have recognized a constitutional violation only
when loss of the evidence prejudiced the defense.” Id. at 868.

       After some further discussion of the Fifth Amendment pre-indictment delay
prejudice requirement, the Court went on to state, “The same ‘prejudice’ requirement
has been applied to cases of postindictment delay.” Id. at 869. Jackson relies on this
sentence to support the argument that his anxiety is relevant to the Fifth Amendment
pre-indictment delay inquiry. This sentence, however, does not bear the weight that
Jackson’s argument places upon it, for the Court did not say that the prejudice inquiry
is identical in both the pre-indictment delay and speedy trial contexts. Jackson would
have us to conclude that the Supreme Court, in a case involving no unreasonable pre-
indictment delay, adopted a standard in those cases that recognized a type of prejudice
that had never previously been considered relevant to the finding of a constitutional
violation. We decline to read that much into the Court’s holding in Valenzuela-
Bernal.

                                         III.

       We turn next to determine whether Jackson has made a sufficient showing of
actual prejudice resulting from the pre-indictment delay, a burden that is his to bear.
United States v. Bartlett, 794 F.2d 1285, 1289 (8th Cir. 1986). To satisfy this burden,
the defendant must identify specific witnesses or documents lost during the delay and
the information they would have provided. United States v. McDougall, 133 F.3d

                                         -6-
1110, 1113 (8th Cir. 1998). Further, the defendant must show that the missing
testimony or information is not available through other sources. Bartlett, 794 F.2d at
1290. Alleged prejudice is insufficient to establish a due process violation if it is
insubstantial, speculative, or premature. Grap, 368 F.3d at 829.

      The prejudice alleged here does not rise to the level required to establish a due
process claim. Jackson makes only three claims of possible prejudice: (1) the possible
automatic deletion of files from Jackson’s computer, to which he has been denied
access; (2) the diminishment of the memory of the officers involved; and (3)
emotional, financial, and social discomfort to Jackson during the period he was
awaiting indictment.

       Jackson, however, did not show with specificity any particular exculpatory
computer file that may have been destroyed or any specific witness who had forgotten
some important detail. Jackson’s argument before the magistrate judge is illustrative
of the speculative and conclusory nature of his claims of prejudice to his defense:

      Now, it is extremely hard to show specific prejudice if you have a
      witness who can’t be found, you have a witness that can’t remember or
      for whatever reasons. . . . [I]t is difficult to show other than we have a
      long period of time.

      ....

      Now, the main reason I think for prejudice . . . is that even though you
      do not have evidence of specific prejudice, it is basically presumed over
      time.

Motion Tr at 13-14. At oral argument, Jackson’s counsel conceded that the record
does not contain any evidence showing specific prejudice due to faded memories or
lost computer files.



                                         -7-
       Jackson attempts to remedy this deficiency by relying on Doggett v. United
States, 505 U.S. 647 (1992), for the proposition that “Jackson is entitled to
‘presumptive prejudice’ due to the length of delay in his case.” Jackson Br. at 13.
Doggett, however, dealt with the presumption of prejudice in cases of post-accusation
delay, which implicate the Sixth Amendment speedy trial right, 505 U.S. at 652 n.1,
a presumption that is not recognized in the Fifth Amendment due process analysis
applicable here, see, e.g., Bartlett, 794 F.2d at 1290. Jackson’s speculative claims
about possible lost computer files and possibly weakened memories of witnesses are
not sufficient to meet the requirement of actual and substantial prejudice established
by our prior Fifth Amendment cases. This is especially the case in a prosecution such
as this one, where nearly all of the evidence of the actual crime alleged has been
memorialized in transcripts of the on-line chats between Jackson and the undercover
agent.

      Jackson’s asserted emotional, financial, and social distress similarly fails to
support a claim of actual and substantial prejudice to the presentation of his defense.
The district court and Jackson both rely on Moore v. Arizona, 414 U.S. 25 (1973), for
the proposition that the prejudice inquiry is not limited to impairments of the
defendant’s ability to present an effective defense. Moore, like Doggett, was a Sixth
Amendment case involving post-charge delay. Id. at 25. Our Fifth Amendment pre-
indictment delay cases, on the other hand, have consistently limited the prejudice
inquiry to the effects of the delay on the defendant’s ability to present an effective
defense. Bartlett, 794 F.2d at 1290; see also Grap, 368 F.3d at 829; Sprouts, 282 F.3d
at 1041; Sturdy, 207 F.3d at 452; McDougall, 133 F.3d at 1113.

      Our holding should not be construed as our approval of the government’s
handling of this case. Nor should it in any way be construed as encouraging the
government to “gamble with the interests of criminal suspects assigned a low
prosecutorial priority.” Doggett, 505 U.S. at 657. The government here failed the
public’s interest in the timely prosecution of a serious criminal offense, one that

                                         -8-
Congress created to protect children from on-line sexual predators. Notwithstanding
these concerns, we conclude that Jackson has failed to establish a constitutional
violation based on pre-indictment delay, and thus the district court erred in granting
the motion to dismiss the indictment.

      The judgment of dismissal is reversed, and the case is remanded for trial.
                     ______________________________




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