                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 14-4606


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JAMES KALBFLESH,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.      James K. Bredar, District Judge.
(1:13-cr-00083-JKB-1)


Submitted:   July 29, 2015                 Decided:   August 13, 2015


Before WILKINSON, NIEMEYER, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Erek L. Barron, WHITEFORD, TAYLOR & PRESTON, LLP, Bethesda,
Maryland, for Appellant.     Vanita Gupta, Principal Deputy
Assistant Attorney General, Mark L. Gross, Robert A. Koch,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      James Kalbflesh appeals the district court’s judgment after

the jury convicted him of conspiracy against rights in violation

of 18 U.S.C. § 241 (2012), deprivation of rights in violation of

18 U.S.C. §§ 2, 242 (2012), and conspiracy in violation of 18

U.S.C. § 371 (2012).      On appeal, Kalbflesh contends that he was

prejudiced by the Government’s pre-indictment delay in violation

of his right to Due Process under the Fifth Amendment, and the

district court erred in admitting statements in violation of his

rights under the Confrontation Clause.           We affirm.

      Kalbflesh first contends that the Government prejudiced him

“by   delaying   its   investigation       and   indictment    until   shortly

after a key witness’s death and days prior to expiration of the

statute of limitations.”        Second, he contends that the district

court’s admission of certain statements of the deceased witness

violated his rights under the Confrontation Clause.

      The   Fifth   Amendment    Due   Process     Clause     “would   require

dismissal of the indictment if it were shown at trial that the

pre-indictment delay in this case caused substantial prejudice

to appellees’ rights to a fair trial and that the delay was an

intentional device to gain tactical advantage over the accused.”

United States v. Marion, 404 U.S. 307, 324 (1971).               We review a

claim that pre-indictment delay violated due process de novo.

United States v. Shealey, 641 F.3d 627, 633 (4th Cir. 2011).

                                       2
       “We conduct a two-pronged inquiry to evaluate a defendant’s

claim     that    pre-indictment          delay     violated        his   right        to       due

process.”        United States v. Uribe-Rios, 558 F.3d 347, 358 (4th

Cir.    2009)    (citation       omitted).          “First,     we    ask   whether             the

defendant        has     satisfied        his      burden      of     proving          ‘actual

prejudice.’”          Id. (citation omitted).                “This is a heavy burden

because    it     requires     not     only       that   a    defendant     show        actual

prejudice, as opposed to mere speculative prejudice, but also

that he show that any actual prejudice was substantial — that he

was meaningfully impaired in his ability to defend against the

. . . charges to such an extent that the disposition of the

criminal proceeding was likely affected.”                       Shealey, 641 F.3d at

633-34 (citation and internal quotation marks omitted).

       When     the    claimed     prejudice        is   the    unavailability              of    a

witness, the defendant must “demonstrate, with specificity, the

expected      content     of   that       witness’       testimony”       and    “that          the

information the witness would have provided was not available

from other sources.”             Jones v. Angelone, 94 F.3d 900, 908 (4th

Cir. 1996).            He “must relate the substance of the testimony

which    would    be     offered     by    the     missing     witnesses        .   .       .    in

sufficient detail to permit a court to assess accurately whether

the information is material to the accused’s defense.”                                  United

States     v.    Bartlett,       794      F.2d     1285,     1290    (4th       Cir.        1986)

(citations omitted).           “Speculative or conclusory claims alleging

                                              3
‘possible’ prejudice as a result of the passage of time are

insufficient.”       Id. (citations omitted).

       “Second, if that threshold requirement is met, we consider

the government’s reasons for the delay, balancing the prejudice

to the defendant with the Government’s justification for delay.”

Uribe-Rios, 558 F.3d at 358 (citation and internal quotation

marks omitted).         “The basic inquiry then becomes whether the

Government’s      action   in     prosecuting       after       substantial     delay

violates fundamental conceptions of justice or the community’s

sense of fair play and decency.”                  Id. (citations and internal

quotation marks omitted).          “If delay results from a protracted

investigation that was nevertheless conducted in good faith,”

prosecuting    the    defendant    following       such   “investigative        delay

does not deprive him of due process, even if his defense might

have   been   somewhat     prejudiced        by   the   lapse    of   time.”        Id.

(citation and internal quotation marks omitted).

       The Confrontation Clause of the Sixth Amendment “bars the

admission of ‘testimonial statements of a witness who did not

appear at trial unless he was unavailable to testify, and the

defendant had had a prior opportunity for cross-examination.’”

United   States    v.   Dargan,    738   F.3d      643,   650    (4th   Cir.    2013)

(quoting Crawford v. Washington, 541 U.S. 36, 53-54 (2004)).

“Evidence     implicates     the    Confrontation         Clause      only     if   it

constitutes a testimonial statement — that is, a statement made

                                         4
with ‘a primary purpose of creating an out-of-court substitute

for trial testimony.’”         United States v. Reed, 780 F.3d 260, 269

(4th Cir. 2015) (quoting Michigan v. Bryant, 562 U.S. 344, 358

(2011)).     “If a statement’s primary purpose is not to create a

record for trial, then the Confrontation Clause does not apply.”

Id. (citation and internal quotation marks omitted).

     Statements      made    in   furtherance         of    a   conspiracy     are   not

testimonial.      See Crawford, 541 U.S. at 55; United States v.

Sullivan, 455 F.3d 248, 258 (4th Cir. 2006) (statements made by

co-conspirators during the course of and in furtherance of a

conspiracy    were   not    testimonial        statements);        cf.   Dargan,     738

F.3d at 650-51 (statements of one prisoner to another about a

crime that he had committed were not testimonial).                            Moreover,

the Confrontation Clause “‘does not bar the use of testimonial

statements for purposes other than establishing the truth of the

matter asserted.’”          United States v. Ayala, 601 F.3d 256, 272

(4th Cir. 2010) (quoting Crawford, 541 U.S. at 60 n.9)).

     Although     we      review    an        alleged       Confrontation       Clause

violation de novo, “a violation may be found harmless on appeal

if the beneficiary of the constitutional error can prove beyond

a   reasonable    doubt      that   the       error     complained       of   did    not

contribute to the verdict obtained.”                       Reed, 780 F.3d at 269

(citation and internal quotation marks omitted).                         We may avoid



                                          5
deciding   whether    there   was   a   Confrontation        Clause   error   and

simply assume error if it was harmless.           Id. (citation omitted).

     With these principles in mind, we have reviewed the record

and the parties’ briefs, and we conclude there was no reversible

error.     As the district court found, Kalbflesh has not shown

actual prejudice due to the Government’s investigative delay.

Even assuming prejudice, we are convinced that the delay did not

violate fundamental conceptions of justice or the community’s

sense of fair play and decency.             We further conclude that the

district court’s admission of statements of the deceased witness

did not violate the Confrontation Clause.                  The statements were

not testimonial because they were made in furtherance of the

conspiracy, not to create a record for trial.                    Even assuming

error, we conclude it was harmless beyond a reasonable doubt.

     Accordingly, we affirm the district court’s judgment.                     We

dispense    with    oral   argument     because      the     facts    and   legal

contentions   are    adequately     presented   in    the    materials      before

this court and argument would not aid the decisional process.



                                                                        AFFIRMED




                                        6
