                                            Filed:   October 8, 1996


                    UNITED STATES COURT OF APPEALS

                        FOR THE FOURTH CIRCUIT



                             No. 95-6383
                            (CA-91-585-R)



Benjamin Henderson Jones,

                                            Petitioner - Appellant,

           versus

Ronald J. Angelone, Director, Department of
Corrections of the Commonwealth of Virginia,

                                             Respondent - Appellee.




                              O R D E R



           The Court amends its opinion filed September 3, 1996, as

follows:

           On the cover sheet, section 2 -- the name of the appellee
is corrected to read "Ronald J. Angelone, Director, Department of

Corrections of the Commonwealth of Virginia."

           On page 15, first full paragraph, line 9 -- the word

"effected" is corrected to read " affected."
                             - 2 -




         On page 16, first paragraph, line 9 -- the semicolon

after the word "past" is deleted and replaced with a comma.
                                     For the Court - By Direction



                                      /s/ Patricia S. Connor

                                                 Clerk
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BENJAMIN HENDERSON JONES,
Petitioner-Appellant,

v.
                                                                       No. 95-6383
RONALD J. ANGELONE, Director,
Department of Corrections of
the Commonwealth of Virginia,
Respondent-Appellee.

Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
James C. Turk, District Judge.
(CA-91-585-R)

Argued: June 6, 1996

Decided: September 3, 1996

Before MURNAGHAN, WILKINS, and LUTTIG, Circuit Judges.

_________________________________________________________________

Affirmed by published opinion. Judge Luttig wrote the majority opin-
ion, in which Judge Wilkins joined. Judge Murnaghan wrote an opin-
ion concurring in the judgment.

_________________________________________________________________

COUNSEL

ARGUED: Michelle Jeanette Anderson, Appellate Litigation Clinical
Program, GEORGETOWN UNIVERSITY LAW CENTER, Wash-
ington, D.C., for Appellant. Linwood Theodore Wells, Jr., Assistant
Attorney General, OFFICE OF THE ATTORNEY GENERAL, Rich-
mond, Virginia, for Appellee. ON BRIEF: Steven H. Goldblatt,
Amy J. Fastenberg, Student Counsel, Brian A. Hill, Student Counsel,
Appellate Litigation Clinical Program, GEORGETOWN UNIVER-
SITY LAW CENTER, Washington, D.C., for Appellant. James S.
Gilmore, III, Attorney General of Virginia, OFFICE OF THE
ATTORNEY GENERAL, Richmond, Virginia, for Appellee.

_________________________________________________________________

OPINION

LUTTIG, Circuit Judge:

Appellant, Benjamin Henderson Jones, fled the Commonwealth of
Virginia after murdering his mother and half-brother on January 8,
1975. He eluded authorities until April 20, 1975, when he was
arrested in New York City on unrelated charges of armed robbery. As
soon as Virginia officials learned that Jones was in New York, they
began efforts to obtain temporary custody of him. New York refused
to temporarily surrender Jones to Virginia officials, and, over the next
ten years, Virginia officials made repeated, but unsuccessful, efforts
to have Jones returned to Virginia. Finally, on January 28, 1986, Vir-
ginia officials succeeded in their efforts to have Jones returned to the
Commonwealth. Jones was then indicted, tried, and convicted of mur-
dering his mother and his half-brother, and sentenced to life imprison-
ment plus twenty years. After exhausting his state remedies, Jones
filed a petition for writ of habeas corpus in the federal district court
challenging his state murder conviction. Jones alleged, inter alia, that
his conviction was obtained in violation of the Due Process Clause of
the Fifth Amendment because of the delay between the commission
of the murders and his arrest on those charges. The district court, after
holding an evidentiary hearing, denied habeas relief. Finding no error,
we now affirm.

I.

In the early morning hours of January 8, 1975, Jones shot and
killed his mother, Marie Gladys Jones, and his half-brother, William
Anthony Hall, as they slept in their home in Wise County, Virginia.
Later that same day, the Wise County Sheriff's Department issued an
arrest warrant for Jones, relying on the eye-witness accounts of the

                    2
shootings provided by Jones' siblings. At the time the warrants
issued, Jones' whereabouts were unknown to Virginia authorities.

A week after the murders, on January 15, 1975, an Assistant Com-
monwealth's Attorney for Wise County, Joseph Kuczko, wrote to the
United States Attorney in Roanoke, Virginia, seeking the FBI's assis-
tance in locating Jones, requesting that federal warrants for unlawful
flight be issued, and suggesting that Jones might be found in New
York. J.A. at 168. When Wise County officials thereafter learned that
Jones was in fact in New York, they sent a letter to the New York
City Police Department requesting that New York surrender Jones to
Virginia once he was apprehended. The letter, which was accompa-
nied by two warrants for murder to serve as detainers, J.A. at 167,
informed the New York authorities of Virginia's intent to seek Jones'
extradition if Jones was unwilling to waive extradition. J.A. at 167.

Jones was arrested for armed robbery in New York City on April
20, 1975. J.A. at 41. On July 16, 1975, prior to Jones' trial and con-
viction for this robbery, Jones was transported to a New York state
court, where he was informed by his lawyer that two officials from
Virginia were seeking to extradite him on the Virginia warrants for
the murder of his mother and half-brother. J.A. at 43-44, 56-57. Pre-
cisely what transpired at the court on July 16 is unclear. But, accord-
ing to Jones' own testimony, he was brought to a New York Court
at 100 Centre Street in New York City on that day and "told by a
Lawyer that there were two assistant attorney generals in Court from
Virginia," J.A. at 43, and that "they were trying to extradite [him]
back" on the warrants for murder. J.A. at 57. Jones testified that,
although he "didn't appear in Court [him]self," his "Lawyer told
[him] that the Judge dismissed the complaints and the warrants." J.A.
at 43-44; see also J.A. at 18-19; Supp. J.A. at 4 (Jones' sworn affida-
vit) ("[E]xtradition proceedings were held in Supreme Court, New
York County, 100 Centre Street in 1975. They were dismissed for
failure of the governor to issue a warrant."). As the magistrate found,
the Commonwealth's efforts to have Jones returned to Virginia for
trial ultimately proved unsuccessful. J.A. at 18-19.

Insofar as can be determined, Virginia next formally attempted to
obtain custody of Jones in 1982. J.A. at 19 (finding of fact). As noted
by the district court, it appears that at that time Virginia renewed its

                    3
efforts to obtain Jones for trial because of the reappearance of an eye-
witness with whom officials had understandably lost contact follow-
ing New York's initial refusal to allow Virginia temporary custody of
Jones. J.A. at 19. Among other actions taken by Virginia officials to
obtain custody of Jones in 1982, Kuczko wrote the head of the prison
in New York where Jones was incarcerated and requested temporary
custody of Jones, filed Form V of the Interstate Agreement on Detain-
ers, and completed an application for extradition under the Uniform
Criminal Extradition Act. J.A. at 19, 158-65. As found by the magis-
trate, "Jones admitted to going to court in 1982 regarding the charges
in Virginia, but it is unclear what happened because Jones was
removed from the courtroom after becoming involved in an argu-
ment." J.A. at 19. According to Jones' testimony, during these pro-
ceedings he "cussed the Judge out" and "told [the guards] when the
cuffs come off, if you put your hands on me, I will try to kill as many
of you as I can in defense of myself." J.A. at 45. As they had been
in 1975, however, the Wise County authorities were again unsuccess-
ful in having Jones returned to Virginia. J.A. at 19 (finding of fact).

Throughout 1985, Virginia made numerous additional efforts to
obtain Jones. See, e.g., J.A. at 50, 146-51, 155. As with its earlier
efforts, these efforts, too, were rebuffed either by New York State
(apparently, in part because it wanted assurances that Jones was ineli-
gible for capital punishment, see J.A. at 122, 129; Supp. J.A. at 1),1
_________________________________________________________________

1 As our specific citations to the record reflect with respect to this point,
it is all but certain that a concern on behalf of officials in New York that
Jones might be subject to the death penalty underlay that State's refusal
readily to volunteer Jones for extradition. As the Assistant Common-
wealth Attorney testified under oath:

         When I got him back, I had to sign a letter to the Governor of
         New York that the death penalty would not be requested in these
         cases.

         ...

         [The Governor of New York] said that before he would sign the
         extradition warrant for us to come and get him that he had to
         have in his file that Virginia was not asking for the capital pun-
         ishment, which we did not have at that time, really.

J.A. at 122, 129 (testimony of Joseph Kuczko). In fact, in obvious
response to a request for assurance from the State of New York, the

                     4
or by Jones, who vigorously contested extradition, refused to sign
papers allowing Virginia officials to bring him back to Virginia, and
filed a petition for a writ of habeas corpus in New York state court
challenging the Virginia warrants, see J.A. at 45, 47, 48, 114, 146-51,
155; Supp. J.A. at 2-5. In fact, from 1982 forward, it appears that
Jones may have attempted to thwart Virginia's efforts by violating
prison regulations in order to postpone his parole date and the
exchange of custody. J.A. at 19-20, 109-10, 112, 122, 130-31.2
_________________________________________________________________

Assistant Commonwealth Attorney in Virginia wrote as follows to the
Executive Secretary to the Governor of New York, in a letter dated Octo-
ber 28, 1985:

         Please be advised that Benjamin Henderson Jones' maximum
         punishment for the murder of his mother and half-brother is life
         imprisonment on each killing. . . . It was not until 1981 that Vir-
         ginia's capital murder statute was amended to include a wilful,
         deliberate and premeditated killing of more than one person as
         a part of the same act or transaction. Therefore, the capital mur-
         der statute is not applicable to Jones.

Supp. J.A. at 1.

2 The Assistant Commonwealth Attorney repeatedly testified under
oath to the fact that New York officials repeatedly informed him that
Jones continually violated prison rules in order to avoid extradition to
Virginia. The following is illustrative:

         [W]e kept in touch with the New York authorities at Sing-Sing
         and Dannemora Prison in New York, and every time they would
         tell us that he was coming up for release, then when we lined up
         to get him, they would call back and say, "Don't come because
         he violated some rule. He doesn't want to go back to Virginia,
         and we cancelled his good time. So he is not going to be released
         at this time," and that is the way it went on.
         ...

         [T]hey would say, "We will let you know when he is coming up
         for release," and then every time we would get ready, I would
         have the deputies lined up to go up there, they would call back
         and say, "Hold it. He has violated the rules intentionally, because
         he doesn't want to go back to Virginia."

J.A. at 109-110, 122 (emphasis added). The Assistant Commonwealth
Attorney even provided the same information to the court itself in
response to direct questioning:

                    5
Virginia officials finally succeeded in having Jones returned to Vir-
ginia on January 28, 1986. He was indicted on July 21, 1986, and, on
January 28, 1987, Jones was finally tried for the murder of his mother
and his half-brother.3 Jones' defense at trial was that he could not
have committed the murders because he was living at the Elk Hotel
in New York City continuously from December 23, 1974, until April
20, 1975. After hearing the evidence, which included Jones' siblings'
eye-witness accounts of Jones shooting his mother and half-brother
multiple times,4 the jury convicted Jones of both murders, sentencing
_________________________________________________________________

         Q: THE COURT. Are you aware of anything that Mr. Jones
         was doing in New York that prevented him being brought back
         to Virginia, other than the fact that he was in prison?

         A: THE WITNESS. Well, just what the officials would tell
         me, that, "We had to cancel his release and the schedule that we
         gave you because he violated some regulations and his good time
         has been cancelled, and he is not going to be turned loose to you
         all like we told you last month," and that went on a few times.
         They knew and I knew that he didn't want to come back to Vir-
         ginia.

Id. at 130-131.

3 "Much of this year-long delay [between Jones' extradition to Virginia
and his trial] was due to motions for continuance and discovery by
Jones." Jones v. People of the Commonwealth of Virginia, No. 92-6989,
1993 WL 62079, at *1 (4th Cir. Mar. 8, 1993).

4 According to the concurrence, Jones' brother, James Jones, was not
an eyewitness to the murders. Post at 26-27 n.5. In fact, he was. Indeed,
his testimony was as incriminating as (and quite likely more so than) the
testimony of his sister, Mary Jones Hardy; indeed, one could not hon-
estly read James Jones' testimony in any other way than as confirming
that he saw his brother Benjamin commit the murders. It is only through
a play on words that it can be maintained in any sense at all that James
was not an eyewitness to the murders committed by the brother -- spe-
cifically, a play on the predicate "eye" in "eyewitness" such that,
although James saw Benjamin fire the shots that killed his mother and
half-brother, it can be said that he did not actually see that Benjamin
committed the murders because he did not literally see Benjamin pull the
trigger (either because it was too dark for James to discern the actual
pulling of the trigger or because Benjamin was positioned such that
James could see Benjamin shoot the victims, but could not actually see
the gun itself). James Jones' self-explanatory testimony was as follows:

                    6
him to life imprisonment for the murder of his mother and to twenty
years for the murder of his half-brother.
_________________________________________________________________
          CROSS-EXAMINATION BY MR. ADKINS:

       Q: And so you were at home [the night of the murders] --

       A: All that night.

       Q: And went to sleep?

       A: Yes, sir.

       Q: And then, as I understood your testimony, you heard the
       door -- heard something --

       A: Bust open.

       Q: Bust open? And then you saw this bunch of blue flashes?

       A: Yeah.

       Q: And you don't know where they came from?

       A: I know where they came from.

       Q: Who was firing them or what?

       A: Yeah, to see anybody actually pull the trigger, no, I didn't,
       but to know where they came from, yes, I do.

       Q: Well, are you saying they were gunshots?

       A: Of course.

       Q: O.k., and -- but as to who was doing the shooting, you do
       not know?

       A: I didn't see nobody pull the trigger, I was in a different
       room.

       Q: And you remember no conversation with anyone?

       A: Me, I didn't say nothing period.

       Q: And you actually, then, saw no one shot?

       A: See somebody shot, no. I stayed in my bed. There was noth-
       ing I could do.

       Q.: Well, did you ever get up at all?

       A: Yes, I did.
                  7
After his conviction became final, Jones filed the instant habeas
corpus action, raising eight issues. The district court dismissed the
petition, holding that seven of the claims were procedurally defaulted.
The district court held that Jones' remaining claim, that the delay
between his arrest in January 1986 and his trial in January 1987 vio-
lated his right to a speedy trial, was meritless. On appeal, we affirmed
_________________________________________________________________

         Q: I mean did you get up at the time of this or was it later on
         you got up?

         A: After the shooting, I got up. When he asked me to get up,
         I got up. And besides that -- and I didn't say a word, I just got
         up, I couldn't say anything. I didn't have anything to say.

         Q: There could have been people in the house that night that
         you did not know about, then, or did not see?

         A: No.

         Q: You don't know whether anyone else was in there or not?

         A: There wasn't nobody else in there. I slept right by the front
         door, in the front door, in fact.

         REDIRECT EXAMINATION BY MR. CALLEN:

         Q: You say someone told you to get up, who told you to get up?

         A: Benny [Benjamin Jones].

         Q: How long was Benny there, would you estimate, to the best
         of your recollection?

         A: I couldn't tell you, I really couldn't.

         Q: You say you saw no one pull the trigger, but do you know
         who did the shooting?

         A: I didn't see nobody pull the trigger, but this is true. The
         only person in the house, like I told you, everybody that was in
         the house, and the only other person in the house was Benny. So,
         as far as bringing the accusation against anyone, then you will
         have to come to the conclusion yourself. I didn't see nobody pull
         it, and I'll tell you the same way I told when my other brothers
         got shot, I will not tell a lie, but I will not make accusations,
         either.

         Q: O.k., thank you very much.

J.A. at 214-17.

                     8
the dismissal of the seven procedurally defaulted claims, but we
remanded the case for a hearing to determine whether Jones could
"make out a Fifth Amendment due process violation" "as it relates to
the delay between issuance of the warrant and his arrest." Jones v.
People of the Commonwealth of Virginia, No. 92-6989, 1993 WL
62079, at *2 (4th Cir. Mar. 8, 1993). On remand, a hearing was held
before a magistrate judge. The district court, over objections from
both parties, adopted most, but not all, of the magistrate's report, con-
cluding that Jones had failed to "meet his burden to show actual prej-
udice" and that "the evidence adduced at the hearing clearly showed
that petitioner was at least as blameworthy for the delay as respon-
dent." J.A. at 13-14. The district court dismissed Jones' petition for
a writ of habeas corpus, and this appeal followed.

II.

We have previously held that, in determining whether pre-
indictment delay violates the Fifth Amendment's Due Process Clause,
the following analysis is to be applied:

         [T]he burden [is] on the defendant to prove actual prejudice.
         Assuming the defendant can establish actual prejudice, then
         the court must balance the defendant's prejudice against the
         government's justification for delay. "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.'"

Howell v. Barker, 904 F.2d 889, 895 (4th Cir.) (quoting United States
v. Automated Med. Lab., 770 F.2d 399, 404 (4th Cir. 1985)), cert.
denied, 498 U.S. 1016 (1990).

A.

The Commonwealth first contends that we should overrule Howell
because it is irreconcilable with a number of Supreme Court cases,
including United States v. Gouveia, 467 U.S. 180, 192 (1984), in
which then-Justice Rehnquist, writing for the Court, explained that in

                     9
order to establish a due process violation based upon pre-indictment
delay, a defendant must show not only actual prejudice, but also that
the government deliberately caused the delay for tactical gain:

         [T]he Fifth Amendment [due process guarantee] requires the
         dismissal of an indictment, even if it is brought within the
         statute of limitations, if the defendant can prove that the
         Government's delay in bringing the indictment was a delib-
         erate device to gain an advantage over him and that it
         caused him actual prejudice in presenting his defense.

Id. (emphasis added); see also United States v. Marion, 404 U.S. 307,
324 (1971) ("[T]he [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' right to a fair
trial and that the delay was an intentional device to gain tactical
advantage over the accused." (emphasis added)); cf. United States v.
Lovasco, 431 U.S. 783, 795 (1977) ("[I]nvestigative delay is funda-
mentally unlike delay undertaken by the Government solely `to gain
tactical advantage over the accused.'" (quoting Marion, 404 U.S. at
324)); Arizona v. Youngblood, 488 U.S. 51, 58 (1988) ("We therefore
hold that unless a criminal defendant can show bad faith on the part
of the police, failure to preserve potentially useful evidence does not
constitute a denial of due process of law.").5

On the authority of Gouveia, Marion, Lovasco, and Youngblood,
every circuit, other than our own and the Ninth Circuit, has indeed
held that, in order to establish that a lengthy pre-indictment delay
rises to the level of a due process violation, a defendant must show
not only actual substantial prejudice, but also that"the government
intentionally delayed the indictment to gain an unfair tactical advan-
_________________________________________________________________

5 See also Youngblood, 488 U.S. at 57 ("Our decisions in related areas
have stressed the importance for constitutional purposes of good or bad
faith on the part of the Government when the claim is based on loss of
evidence attributable to the Government. In United States v. Marion, 404
U.S. 307 (1971), we said that `[n]o actual prejudice to the conduct of the
defense is alleged or proved, and there is no showing that the Govern-
ment intentionally delayed to gain some tactical advantage over appel-
lees or to harass them.'" (emphasis added)).

                    10
tage or for other bad faith motives." United States v. Crooks, 766 F.2d
7, 11 (1st Cir.) (Breyer, J.) (internal quotation marks omitted), cert.
denied, 474 U.S. 996 (1985); see also, e.g., United States v. Lebron-
Gonzalez, 816 F.2d 823, 831 (1st Cir.), cert. denied, 484 U.S. 843
(1987); United States v. Hoo, 825 F.2d 667, 671 (2d Cir. 1987), cert.
denied, 484 U.S. 1035 (1988); United States v. Ismaili, 828 F.2d 153,
167 (3d Cir. 1987), cert. denied, 485 U.S. 935 (1988); United States
v. Crouch, 84 F.3d 1497 (5th Cir. 1996) (en banc); United States v.
Brown, 959 F.2d 63, 66 (6th Cir. 1992); United States v. Sowa, 34
F.3d 447, 450 (7th Cir. 1994), cert. denied, 115 S. Ct. 915 (1995);
United States v. Stierwalt, 16 F.3d 282, 285 (8th Cir. 1994); United
States v. Engstrom, 965 F.2d 836, 839 (10th Cir. 1992); United States
v. Hayes, 40 F.3d 362, 365 (11th Cir. 1994), cert. denied, 116 S. Ct.
62 (1995); Howell, 904 F.2d at 902-03 (Russell, J., dissenting).
Because Jones has presented no evidence whatsoever that the Com-
monwealth delayed arresting or indicting him for tactical advantage
or that Virginia otherwise acted in bad faith, he could not possibly
establish a due process violation under this standard.

But, as the Commonwealth is aware, we cannot, as a panel of the
court, overrule the decision of another panel; only the en banc court
may overrule a prior panel decision. As we discuss below, however,
Jones has failed to establish a due process violation even under the
more lenient Howell standard applicable in this circuit.

B.

Howell, like Gouveia, first requires that we determine if pre-
indictment delay has caused the defendant actual prejudice. Howell,
904 F.2d at 895. The district court concluded that Jones had not satis-
fied this requirement of Howell because he failed to demonstrate that
any witness he might have called would have provided him an alibi
for the murders, that is, that any witness would have testified that he
was with Jones, or that he saw Jones, in New York City on the day
Jones' mother and half-brother were murdered in Virginia and at a
time that would have foreclosed the possibility of Jones' presence in
Virginia when the murders occurred.

Jones advances two arguments as to why, in his belief, the district
court erred in this conclusion. First, Jones contends that, because of

                    11
the length of delay in this case, he should be relieved of his burden
of proving actual substantial prejudice. Second, and alternatively,
Jones contends that he has made a sufficient showing of actual preju-
dice to satisfy Howell and therefore to establish a due process viola-
tion. We consider each argument in turn.

1.

Jones first alleges that the length of the pre-indictment delay in this
case "constitutes a prima facie showing of actual prejudice," and
shifts to the Commonwealth the burden of proving that Jones did not
suffer prejudice from the delay. Appellant's Br. at 21. The Due Pro-
cess Clause has never been interpreted so as to impose a presumption
of prejudice in the event of lengthy pre-indictment delay, as Jones
himself acknowledges. He maintains, however, that the Supreme
Court's holding in Doggett v. United States, 505 U.S. 647, 655
(1992), that a lengthy post-indictment delay is presumptively prejudi-
cial to the defendant for purposes of establishing a Sixth Amendment
speedy trial claim, should be extended to pre-indictment delays which
potentially give rise to claims under the Fifth Amendment Due Pro-
cess Clause. Because a rule of presumptive prejudice in this latter
context would be at odds with established Supreme Court authority,
we decline appellant's invitation to so extend Doggett.6

The Supreme Court has repeatedly emphasized that, in order to
establish a due process violation, the defendant must show that the
delay "caused him actual prejudice in presenting his defense."
Gouveia, 467 U.S. at 192 (emphasis added); see also Lovasco, 431
U.S. at 789 ("[P]roof of actual prejudice makes a due process claim
concrete and ripe for adjudication, not . . . automatically valid.");
Marion, 404 U.S. at 326 ("Events of trial may demonstrate actual
_________________________________________________________________

6 The speedy trial right does not apply to Jones' pre-indictment delay
because that right does not attach until the defendant has been indicted
or arrested. See, e.g., Doggett, 505 U.S. at 655 ("Sixth Amendment right
of the accused to a speedy trial has no application beyond the confines
of a formal criminal prosecution."); Marion, 404 U.S. at 313, 321 ("[W]e
decline to extend the reach of the [Sixth][A]mendment to the period
prior to arrest."); see also United States v. Thomas, 55 F.3d 144, 148 (4th
Cir. 1995).

                    12
prejudice, but at the present time appellees' due process claims are
speculative and premature."). Indeed, the Court in Marion specifically
rejected the argument that the "potential prejudice and passage of
time" is sufficient to sustain a due process claim. 404 U.S. at 323. As
Justice White explained for the Court in that case:

         The law has provided other mechanisms to guard against
         possible as distinguished from actual prejudice resulting
         from the passage of time between crime and arrest or
         charge. As we said in United States v. Ewell, [383 U.S. 116,
         120 (1966)] `the applicable statute of limitations . . . is . . .
         the primary guarantee against bringing overly stale criminal
         charges.' Such statutes represent legislative assessments of
         relative interests of the State and the defendant in adminis-
         tering and receiving justice; they `are made for the repose
         of society and the protection of those who may (during the
         limitation) . . . have lost their means of defence.' Public
         Schools v. Walker, 9 Wall. 282, 288[(1870)]. These statutes
         provide predictability by specifying a limit beyond which
         there is an irrebuttable presumption that a defendant's right
         to a fair trial would be prejudiced.

Marion, 404 U.S. at 322; see also Lovasco, 431 U.S. at 789 (quoting
Ewell and Marion). The narrow application of the Due Process Clause
in the context of pre-indictment delay was reaffirmed some six years
later in Lovasco. 431 U.S. at 789 ("[T]he Due Process Clause has a
limited role to play in protecting against oppressive delay.").

Following these precedents from the Supreme Court, the courts of
appeals have uniformly held that to obtain a dismissal under the Due
Process Clause a defendant must establish that a pre-indictment delay
actually prejudiced his defense, see, e.g., cases cited supra at pp. 9-
10; Howell, 904 F.2d at 895 ("[T]he burden [is] on the defendant to
prove actual prejudice." (emphasis added)); Crouch, 84 F.3d at 1511-
12 (collecting cases); Stoner v. Graddick, 751 F.2d 1535, 1544 (11th
Cir. 1985); United States v. Marler, 756 F.2d 206, 213 (1st Cir.
1985), as we had held as early as 1970:

         The law is clear that a mere showing of delay in indictment
         and arrest is not sufficient to show a [due process] violation,

                    13
         that prejudice will not be presumed from mere delay, and
         that a defendant must bear the burden of proving prejudice
         by a pre-indictment delay.

United States v. Baker, 424 F.2d 968, 970 (4th Cir. 1970). The Sev-
enth Circuit, for example, recently held that, notwithstanding a 16-
year prosecutorial delay between the commission of the crime and the
indictment, the defendant "must demonstrate that he suffered actual
and substantial prejudice," expressly rejecting the contention that
delay alone constitutes sufficient prejudice to support a due process
violation. Wilson v. McCaughtry, 994 F.2d 1228, 1234 (7th Cir.
1993); see also Graddick, 751 F.2d at 1543-45 (holding that a 19-year
pre-indictment delay was not presumptively prejudicial); United
States v. Bracy, 67 F.3d 1421, 1427 (9th Cir. 1995) ("The defendants'
proof of prejudice must be definite and not speculative." (internal
quotation marks omitted)); Crouch, 84 F.3d at 1523 (holding that the
"requisite prejudice [from a pre-indictment delay] may not be pre-
sumed, rebuttably or otherwise, merely from the length of the delay").
Moreover, to our knowledge, every court that has specifically consid-
ered the application of Doggett in the context of an alleged due pro-
cess violation has held that "[t]he concept of presumed prejudice has
no place in a due process analysis." United States v. Beszborn, 21
F.3d 62, 66-67 (5th Cir. 1994); see also Crouch, 84 F.3d at 1515 &
n.26; United States v. Bischel, 61 F.3d 1429, 1436 (9th Cir. 1995).7

We therefore reaffirm our earlier decisions that in order to maintain
a due process claim the defendant must show actual prejudice. For
purposes of the Due Process Clause, as long as the indictment is
brought within the statute of limitations, we will not presume that the
defendant has been prejudiced by delay between commission of the
offense and arrest or indictment. It is incumbent upon the defendant,
if he is to prevail upon such a claim, to establish that he has been so
prejudiced.
_________________________________________________________________

7 Jones' reliance upon Pitts v. North Carolina, 395 F.2d 182, 185 (4th
Cir. 1968), where we held that a 16-year pre-indictment delay was pre-
sumptively prejudicial for purposes of the right to a speedy trial under
the Sixth Amendment, is misplaced, given Marion's holding that the
Sixth Amendment right to a speedy trial does not attach until the defen-
dant has been indicted or arrested. See 404 U.S. at 313, 320-21.

                    14
2.

Jones next contends that, even if he is not entitled to a presumption
of prejudice, he has nonetheless carried his burden of proving actual
substantial prejudice. This is a heavy burden because it requires not
only that a defendant show actual prejudice, as opposed to mere spec-
ulative prejudice, see, e.g., Marion, 404 U.S. at 325-26; Lovasco, 431
U.S. at 789-90, but also that he show that any actual prejudice was
substantial -- that he was meaningfully impaired in his ability to
defend against the state's charges to such an extent that the disposi-
tion of the criminal proceeding was likely affected. See, e.g., Marion,
404 U.S. at 324 ("substantial prejudice"); Couch, 84 F.3d at 1511-12,
1515 (collecting cases); Brown, 959 F.2d at 66; Sowa, 34 F.3d at 450;
Graddick, 751 F.2d at 1547 (holding that a showing of actual substan-
tial prejudice requires a "reasonable probability" that absent the delay
"the result of the proceeding would have been different"); Wilson, 994
F.2d at 1234; United States v. Bartlett, 794 F.2d 1285, 1290 (8th
Cir.), cert. denied, 479 U.S. 934 (1986) ("[D]efendant must demon-
strate that the prejudice actually impaired his ability to meaningfully
present a defense.").

When the claimed prejudice is the unavailability of witnesses, as
here, courts have generally required that the defendant identify 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 pro-
vided was not available from other sources. See, e.g., Howell, 904
F.2d at 893; Crouch, 84 F.3d at 1515; United States v. Brown, 742
F.2d 359, 362 (7th Cir. 1984); United States v. Kidd, 734 F.2d 409,
413 (9th Cir. 1984).

Jones' only contention is that, because of the delay preceding his
indictment in this case, he was unable to call witnesses who could
have testified that he lived at the Elk Hotel in New York continuously
from December 1974 until April 1975,8 J.A. at 17, 69-72; he does not
_________________________________________________________________

8 Jones also contends that he suffered prejudice because the Elk Hotel
has since destroyed its records, and therefore that potentially exculpatory
evidence that could have shown that "Jones was residing at the hotel on

                    15
contend that he was unable to call witnesses who would have testified
that he was in New York on the day of the murders of his mother and
half-brother. In support of his contention, Jones identified four resi-
dents and a few clerks with whom he claimed he had become
acquainted while living at the Elk Hotel. When his attorneys searched
for these witnesses, however, they found only one, a clerk at the hotel.
That clerk could not remember Jones, although he did vaguely
remember that someone fitting Jones' description had lived at the
hotel in the past, as the magistrate found. See J.A. at 17 (finding by
magistrate that counsel for Jones "was unable to refresh [the clerk's]
memory with either recent or older photographs of Jones").

The district court held that Jones had not shown that any of his
alleged witnesses would have provided him an alibi for the date of the
murders, J.A. at 17-18, 22-23, finding that "[a]t best, [Jones] has
stated that [these witnesses] could have verified that he was living at
the Elk Hotel during the relevant period of time," not that he was
"physically in New York City when the Wise County murders
occurred." J.A. at 24 (emphasis added). Additionally, the district court
held that Jones had failed to show that the testimony which he claims
these witnesses would have provided could not have been provided
by other witnesses. J.A. at 24 ("Another aspect of Jones' failure to
show actual prejudice is that he never indicated that these witnesses
from the Elk Hotel were the only people in New York City that he
knew."). See infra note 6.

Jones has never claimed, and does not claim before this court, that
any of his acquaintances at the Elk Hotel actually saw him in New
York on January 8, 1975, or, importantly, even that he saw any of
_________________________________________________________________

January 8, 1975" was unavailable. Appellant's Br. at 25 (emphasis
added). This argument is meritless. First, as found by the district court,
Jones admitted that he had hotel receipts at the time of his murder trial;
thus, the hotel records were unnecessary to establish that he lived at the
Elk Hotel. J.A. at 18, 22, 66, 73-74. Second, both the receipts and the
records would have shown at most that Jones rented a room at the Elk
Hotel from December until April, not that he was actually in his room
on January 8. See J.A. at 22 (Magistrate's Report) (finding that the hotel
records "would not have established his actual physical presence in New
York on the day of the murders").

                    16
these individuals.9 Nor does he offer any particular reason why these
individuals -- who, it must be remembered, were not Jones' friends
but rather merely persons he might have passed as he entered or
departed the hotel -- might have remembered seeing Jones on the
specific date in question, much less remembered seeing him within
the hours of that day in which they would have had to see him in
order to serve as alibis. In the magistrate's words:

         Jones never testified as to any specific facts or events which
         would have caused these witnesses to know that he was in
         New York on January 8, 1975, as opposed to any other day
         in that month. Jones has not even told the court what he
         expected these witnesses to have known.

J.A. at 24; see also J.A. at 17-18 (finding of fact) ("There was no tes-
timony at the evidentiary hearing as to what these witnesses would
have specifically said had they been located prior to trial.").
_________________________________________________________________

9 That Jones does not even claim to have seen any particular person
whom he might have called as a witness to his whereabouts on the day
in question is especially significant, we believe, given that he was able
to describe with remarkable specificity exactly what he was doing on
January 8, 1975, the day his mother and brother were murdered. In a
sworn affidavit, Jones stated:

         On January 8, 1975, I was in New York City, residing at the Elk
         Hotel, 360 West 42nd St. On that day, I did not have any work
         to do, so I returned to my hotel as I usually do. Later I went to
         the OTB as I usually do when I'm not working. I placed my bets
         and then went back to my hotel to wait until it was time to go
         back to OTB to check on them and go to the gymn[sic]. At the
         time, I was working at the day labor agency on or near Fulton
         Street. The gymn [sic] was below 14th Street.

J.A. at 248. We likewise believe that Jones' affidavit statements confirm
the correctness of the district court's companion conclusion that Jones
failed to prove the uniqueness of the testimony which he claims he lost
because of the pre-indictment delay. It is quite obvious from the above-
quoted affidavit passage (if Jones is to be believed) that Jones encoun-
tered numerous persons in New York City on the day of the murders who
presumably were in far better positions to serve as alibis than any of his
alleged acquaintances at the Elk Hotel. Yet, none of these persons does
Jones suggest he would have called as witnesses.

                    17
As the district court held, testimony that Jones lived at the Elk
Hotel in New York from December 1974 until April 1975 obviously
does not in any way exculpate, or even tend to exculpate, Jones for
an offense committed on a particular day and at a particular time dur-
ing that period. Even if the witnesses Jones identified could have tes-
tified that they regularly encountered Jones during that time period,
they would not have represented alibi witnesses for Jones, unless they
remembered seeing Jones on the specific day in question and at a par-
ticular time of that day, which, because of Jones' tenuous connections
with the alleged witnesses, would be highly unusual even a few days
after January 8, 1975. Cf. Bracy, 67 F.3d at 1427 ("`emphasiz[ing]
that protection of lost testimony generally falls solely within the ambit
of the statute of limitations'" and questioning"whether lost testimony
due to dimmed memories could ever be sufficiently prejudicial so as
to violate due process") (citations omitted); Brown, 742 F.2d at 362
("`Vague and conclusory allegations of prejudice resulting from the
passage of time and the absence of witnesses are insufficient to con-
stitute a showing of actual prejudice' stemming from preindictment
delay." (quoting United States v. Jenkins, 701 F.2d 850, 855 (10th
Cir. 1983)). Indeed, counsel for Jones all but conceded at oral argu-
ment that Jones failed to carry his burden of showing actual prejudice,
when she admitted that Jones' showing was "wanting in terms of an
alibi defense" (although arguing that it was sufficient because of the
lengthy delay). Oral Argument, June 6, 1996.

Because Jones did not establish (or, for that matter, even allege)
that acquaintances from the Elk Hotel would have testified that they
saw Jones in New York on January 8, 1975, nor why they might have
remembered seeing him on that particular day, he has failed to con-
vince us that the district court's factual findings were clearly errone-
ous, or, ultimately, that he was prejudiced at all by the delay between
his commission of the crime and his indictment.10
_________________________________________________________________

10 Jones nevertheless contends that his burden of proving actual sub-
stantial prejudice should be reduced in this particular case because of the
weakness of the state's case against him. In Jones' opinion, the Com-
monwealth's case against him was weak because it was comprised
largely of his siblings' eye-witness accounts of him murdering his
mother and half-brother. To the extent that the strength of the state's case
is at all relevant to the due process inquiry, it is only relevant in consider-

                     18
C.

Even if Jones had established that he was actually and substantially
prejudiced by the pre-indictment delay, he still would not be entitled
to relief under the Due Process Clause, because he has also failed to
satisfy Howell's second requirement that, balancing the prejudice to
the defendant against the state's reasons for the delay, the delay "vio-
late[d] fundamental conceptions of justice or the community's sense
of fair play and decency." Howell, 904 F.2d at 895.

The Commonwealth of Virginia has a compelling explanation for
the delay: Jones opposed extradition at every juncture and the State
of New York repeatedly rebuffed Virginia's attempts to obtain Jones.
See, e.g., J.A. at 18-19, 45, 47, 48, 114, 130, 148, 151. As the district
court found, "the evidence adduced at the hearing clearly showed that
petitioner was at least as blameworthy for the delay as respondent."
J.A. at 14; see also Jones v. Commonwealth, No. 1499-87-3 (Va. Ct.
App. Dec. 6, 1988) (holding that the delay was "of [Jones'] own mak-
ing").

In fact, it is more than a little ironic that Jones now complains of
an excessive pre-indictment delay, considering the evidence that he
opposed extradition or return to Virginia by other means, J.A. at 45,
47-48, 114; Supp. J.A. at 2-5, even intentionally violating prison rules
in an apparent attempt to delay his parole and thus his return to the
Commonwealth for indictment and prosecution, J.A. at 19-20, 109-
10, 112, 122, 130-31. We need not recount from our discussion supra
Virginia's numerous attempts to obtain custody of Jones following his
_________________________________________________________________

ing whether the actual prejudice established by the defendant is substan-
tial. Cf. Bartlett, 794 F.2d at 1292; Wilson, 994 F.2d at 1234. The
strength of the state's case is irrelevant to the question of whether the
defendant has suffered actual prejudice. Since Jones has failed to estab-
lish actual prejudice, we need not examine the proof offered by the state
during Jones' criminal prosecution. We do, however, disagree with
Jones' characterization of the state's case as "weak." We believe that the
state's case, based as it was primarily upon eye-witness accounts of the
murders by family members who had, in our opinion, nothing whatever
to gain by falsely incriminating Jones, was anything but "weak."

                     19
arrival in New York. Suffice it to say, however, that, as noted, Vir-
ginia made repeated good faith efforts to immediately secure Jones'
presence in Virginia, including, as Jones' own oral and written testi-
mony confirms, the pursuit of proceedings in the New York Supreme
Court in July 1975, shortly after Jones was first captured,11 and pro-
ceedings in 1982 and 1985. See J.A. at 18-20 (findings of fact); Supp.
J.A. at 2, 4; J.A. at 57; see also discussion supra at pp. 3-4. And, as
Jones himself admits, "[e]ach and every time they took [him] to Court
[he] requested a hearing," J.A. at 48, he refused to sign extradition
papers, J.A. at 47, and he filed a writ of habeas corpus to prevent
New York from extraditing him to Virginia, Supp. J.A. at 2-5.

Jones' counsel herself reluctantly conceded at argument that Jones'
claim reduces to one that Virginia should have made additional
efforts to secure his presence in Virginia in the face of New York's
refusal to grant Virginia temporary custody in 1975. That the Com-
monwealth could have done more to attempt to gain custody over
Jones, however, is not the inquiry. The state is not required by the
Due Process Clause to employ every single means available to it to
secure the presence of a resisting fugitive, lest it forfeit its rights of
indictment and prosecution. And the Due Process Clause certainly
does not demand that a state consume its limited resources through
repeated efforts to gain custody over fugitives incarcerated in other
states, after good faith efforts prove fruitless, especially where that
state is continually met with resistance from the holding state and the
fugitive himself.
_________________________________________________________________

11 Jones is now at pains to argue that nothing "conclusively" proves that
extradition proceedings were actually commenced in 1975, see, e.g.,
Appellant's Br. at 6, 30 n.20. He notes in this regard that in a formal
application for extradition filed in 1982, a Virginia official said that "[n]o
other application" for extradition had been made out for Jones. See J.A.
at 159. However, Jones himself repeatedly termed the 1975 proceedings
"extradition proceedings" and he affirmed under oath that both the court
and the Governor of New York refused to allow Virginia to take tempo-
rary custody of Jones. J.A. at 57; Supp. J.A. at 2, 4. Even if there were
no formal extradition proceedings, the record is uncontroverted, and the
district court's factual finding unassailable, that there was some proceed-
ing in New York in 1975 at which Virginia attempted, albeit unsuccess-
fully, to obtain custody of Jones.

                     20
The contrast between this case and the cases upon which Jones
principally relies is stark, indeed. Although, in Howell, we granted
petitioner habeas relief because of an unconstitutional pre-indictment
delay, counsel for the state there admitted that North Carolina had
done nothing to gain custody over the defendant, and that the indict-
ment was delayed for the "mere convenience" of the local officials.
904 F.2d at 895. Likewise, in Pitts, the state had "made no effort of
any kind" to obtain the suspect and "fail[ed] to take even the slightest
step to procure a temporary release and a prompt hearing" during the
fifteen years preceding indictment. Pitts, 395 F.2d at 187. Here, Vir-
ginia acted with more than reasonable diligence in making prompt
and repeated efforts to obtain Jones.

Given the complete lack of prejudice to Jones, Virginia's prosecu-
tion of Jones after the pre-indictment delay most assuredly did not
"violate[ ] fundamental conceptions of justice or the community's
sense of fair play and decency." Howell, 904 F.2d at 895 (internal
quotation marks omitted). If anything, in light of the Common-
wealth's efforts to obtain custody over Jones, the community's sense
of justice and fairness would be offended if Virginia were to be pro-
hibited from indicting and prosecuting Jones for the murders of his
mother and half-brother.

Accordingly, the judgment of the district court dismissing Jones'
petition for writ of habeas corpus is affirmed.

AFFIRMED

MURNAGHAN, Circuit Judge, concurring:

I concur in the judgment, however, I write separately in order to
clarify what the record establishes as fact and what is speculation or
questionable inference in the majority opinion. As the ends sometimes
do not justify the means, so too a proper result may proceed from an
unjustified method. The case concerns unsatisfactory conduct by both
the Virginia prosecutor on the one hand and the defendant on the
other. Our conclusion that the defendant has not shown prejudice and
is therefore not entitled to relief, however, should not be converted
into a justification or excuse for the negligent behavior of the prose-
cutors.

                    21
I

The following is what the record establishes. On January 8, 1975,
Marie Gladys Jones and William Anthony Hall were murdered at
their home in Wise County, Virginia. J.A. 16. On the day of the mur-
ders, the Wise County Sheriff's Office obtained an arrest warrant for
Benjamin Jones, the son and half-brother of the victims. J.A. 251-52.
Shortly thereafter, those officials learned that Jones was in New York.
J.A. 168. When they located Jones in New York in March 1975, he
was being held by New York on an unrelated robbery charge. J.A. 16,
117-18, 167. Subsequently, New York tried and convicted Jones of
robbery and sentenced him to seven and one-half to fifteen years
imprisonment. J.A. 16, 42, 164. As a result of his New York sentence,
Jones was not indicted for the murders nor brought to Virginia for
trial until 1986. What occurred in the interim follows.

A. 1975

In March 1975, an official from the Commonwealth of Virginia
sent a letter to the New York City Police Department asking it to
inform the Virginia officials if Jones, whom they referred to "as being
held by" the New York City Police Department, refused to waive
extradition. J.A. 167. If not, the official indicated that the Common-
wealth's Attorney would begin extradition proceedings. The letter
enclosed two warrants to be filed as detainers. J.A. 18, 109, 167.

The record does not clearly reflect, however, whether extradition
proceedings were initiated in 1975. J.A. 18-19, 146-68. At one point
in 1975 Jones appeared in a local New York court where he was
informed that two Assistant Attorney Generals from Richmond, Vir-
ginia were there with warrants charging him with two murders and
that they were trying to extradite him. J.A. 54-57. Jones testified that
he did not appear in court, and that he understood that the judge dis-
missed the complaints and warrants. J.A. 18-19, 43-44, 54-57. There
is no documentation of the hearing in the record. Jones in a 1985
habeas corpus application stated that: "extradition proceedings were
held . . . in 1975," but then dismissed. Supp. J.A. 4. In a 1982 extradi-
tion application, the Commonwealth, however, stated that "[n]o other
application has been made for a requisition for the said fugitive." J.A.
159. And the Commonwealth stipulated at the habeas hearing that

                    22
other than the letter sent to the New York Police Department in 1975
attaching two detainers, its file did not contain a record of any activity
to extradite or obtain custody of Jones through other means prior to
1982. J.A. 124-25. No other activity concerning gaining custody of
Jones occurred in 1975.

B. 1982

The record reflects that Virginia failed to take any further action
after 1975 to secure temporary custody of Jones for trial until 1982.
J.A. 18, 124. So, from 1975 to 1982 Virginia's wish to prosecute
Jones was not pursued. Having "lost track" of its key witness, Jones's
sister, the Commonwealth presumably had little motivation to seek
Jones's extradition.1 In 1982, however, the prosecuting Assistant
Commonwealth's Attorney chanced across the missing witness's
name in a legal notice in a condemnation case, located the witness,
and came to understand that Jones was scheduled to be released from
New York prison in August or September of 1982. J.A. 19, 108, 158,
160, 165. At that point in time, the Assistant Commonwealth's Attor-
ney initiated procedures in order to obtain custody of Jones. J.A. 19,
158-165. That is the first time that the Commonwealth's case file
reflects any efforts were made to obtain custody of Jones other than
the initial letter sent in 1975 prior to Jones's trial in New York for
robbery.
_________________________________________________________________

1 The majority states that Virginia "understandably lost contact" with
the witness because of New York's initial refusal in 1975 to allow Vir-
ginia temporary custody of Jones. As previously explained, the record
does not reflect exactly what occurred in 1975. While it appears that two
individuals traveled to New York, it is unclear whether an extradition
proceeding actually occurred. Jones testified that he never appeared in
court. It is certainly not evident in the record that New York refused to
extradite Jones. There was no proof of such refusal. Nor was there any
proof that Virginia actually sought extradition. Furthermore, the record
does not reflect an effort on the part of the Commonwealth to keep in
touch with the witness (Jones's sister), to keep a current address of the
witness, or to maintain any information on the key witness in the case
against Jones. Most significantly, the record does not reflect any further
efforts whatsoever by the Commonwealth to extradite Jones after the ini-
tial 1975 letter was sent until its Assistant Commonwealth's Attorney
years later happened upon the witness.

                     23
The Assistant Commonwealth's Attorney wrote to the superinten-
dent of the New York prison in which Jones resided requesting tem-
porary custody pursuant to the Interstate Detainer Agreement. J.A. 19,
163-165. Additionally, in 1982, the prosecuting Assistant Common-
wealth's Attorney wrote to the Virginia Governor seeking extradition.
J.A. 19, 158. There are no records, however, of any action taken by
the Governor on the petition or of any follow-up by the Attorney on
the request. Jones's testimony indicates that a hearing began in 1982
in New York relating to the Virginia charges. J.A. 19, 44-45. It is
unclear what occurred at that hearing because Jones had to be
removed from the courtroom due to his misbehavior.

Jones was not released as scheduled in 1982 because he violated
prison rules. J.A. 109-10, 122, 130-31. The majority suggests that
Jones violated prison rules in order to delay his release and return to
Virginia for trial. That suggestion is based only, however, on
speculation--the Assistant Commonwealth's Attorney's memory of
phone calls--some from over a decade ago--with unnamed New
York prison officials who, the Attorney asserts, stated that Jones vio-
lated prison rules to avoid being paroled.2
_________________________________________________________________

2 The evidence relied upon is the Assistant Commonwealth's Attor-
ney's memories of telephone calls he had with New York prison officials
who in turn were speculating on Jones's motives for violating the rules.
The very same Assistant Commonwealth's Attorney had some difficulty
remembering facts of the case and referred the questioner to what was
established in the case file. J.A. 120-24. For example, he responded to
the following question:

        Q. You sent a detainer up and said, "Don't turn him loose,"
        but did you do anything else to get him back down here? Did
        you p[ursue] any other routes until 1982?

        A. Well, whatever the records show, I am sure we just didn't
        sit and wait. Telephone communications and whatnot, they
        would say "We will let you know when he is coming up for
        release," and then every time we would get ready, I would have
        the deputies line up to go up there, they would call back and say,
        "Hold it. He has violated the rules intentionally, because he
        doesn't want to go back to Virginia."

J.A. 122 (emphasis added). The Commonwealth case record did not
reflect any of the telephone communications referenced. Reliance on
record testimony that is based on speculation in some instances and hear-
say in others is speculation. J.A. 109-10, 122, 130.

                    24
C. 1985

The record reflects no further activity by Virginia until 1985. J.A.
19-20. In 1984, New York had written Virginia to inform it of Jones's
upcoming release in March 1985. J.A. 19, 157. Virginia responded by
informing New York that it would seek extradition upon release if
Jones refused to waive it. J.A. 156. Jones, however, was not released
in March 1985. Later that spring and summer, Virginia initiated
efforts to obtain custody over Jones. J.A. 146-55. Finally, in January
1986, New York released Jones from jail. J.A. 48. Virginia trans-
ferred Jones to Virginia, indicted him, and approximately one year
later in 1987 tried him for murder. J.A. 48-49, 250.

The record reflects that Jones opposed Virginia's efforts to gain
temporary custody of him when those efforts were initiated in 1982
and thereafter. J.A. 44-45, 47, 50-51, 114. One after all can make an
effort, even a losing one, to succeed in a legal process. However,
absolutely nothing in the record reflects any activity by Jones oppos-
ing any such efforts before 1982.

The majority also suggests that "apparently" New York refused to
release Jones because it feared that he would be subjected to the death
penalty in Virginia and requested assurances that Jones was not eligi-
ble for capital punishment. J.A. 129-30. However, the Assistant Com-
monwealth's Attorney testified that no governor of New York refused
to transfer Jones prior to 1985.3 J.A. 134. And, there is no record in
_________________________________________________________________

3 He states:

          Q. Now, you said the Governor made you sign that you
          wouldn't ask for the death penalty when you brought him back.
          Which Governor was that in New York?

          A. I don't remember his name.

          Q. Was that the Governor who was Governor in 1985
          through 1986?

          A. Yes, it would be something from whoever was in office
          then, and I don't have any idea.

          Q. Now, did any other Governor ever refuse to send him
          back from New York?

                    25
the Commonwealth's file of a refusal of extradition by a New York
Governor.4

D. 1987--Trial

In 1987, approximately twelve years after the murders occurred
and twelve years after Virginia knew where Jones was located, the
Commonwealth prosecuted Jones for the murder of his mother and
half-brother. The thrust of the Commonwealth's case against Jones
was the eye-witness testimony of his sister.5

Jones contended throughout trial that he had been in New York
during the time of the murders. Jones's attorneys attempted to locate
_________________________________________________________________

         A. Not that I know of, no.

J.A. 134. Thus, in any event, the excuse offered only applies to the very
end of the extraordinary delay at issue and is, therefore, not a sufficient
excuse at all.

4 Only on October 28, 1985, the same month New York paroled Jones
to Virginia's custody, did the Assistant Commonwealth's Attorney write
to New York to explain that Jones was not legally eligible for capital
punishment. J.A. 20, Supp. J.A. 1. The only other evidence of New
York's position is testimony by the Assistant Commonwealth's Attorney
--the very same attorney who had some difficulty remembering details
of the case and referred the questioner to the record. J.A. 118-24. The
record was entirely silent as to New York's position, with the exception
of the October 1985 letter.

My disagreement with the majority, however, is irrelevant to my ulti-
mate point. If indeed New York's "apparent" fear of the death penalty
was the alleged reason New York refused to extradite Jones prior to
1985, then it could have been easily cured well before 1985 because
Jones was ineligible for the death penalty.

5 While, as the majority states, two siblings testified at trial, in fact only
one gave an eye-witness account of Jones committing the murders. The
majority has criticized my clarification that two witnesses did not give
eye-witness testimony of the murder. As the majority's footnote four
reveals, however, the brother did not testify that he saw (i.e., witness
with his eyes) Benjamin Jones pull the trigger. Thus it is inaccurate of
the majority to say that two siblings gave eye-witness testimony.

                     26
the witnesses Jones named with specificity and the hotel records of
the hotel where Jones claims he was staying at the time of the mur-
ders. J.A. 69-72, 95, 249. The attorneys traveled to New York and
found the hotel. They spoke with the hotel clerk whom Jones had
remembered, Teddy Black. Black thought he remembered Jones, but
was unsure and not able to identify a photograph of Jones from 1986.
J.A. 82-83, 96-97. Black recognized the other names or descriptions
Jones had given the attorneys, but those individuals had all left the
hotel and their whereabouts were unknown. J.A. 83, 85. The hotel
records from 1975 were not available because records were routinely
destroyed. J.A. 84. All other investigation failed to lead to any further
information.

II

With respect to the extraordinary delay, the record reflects that the
1975 efforts were fragmentary and that there were no efforts from
1975 to 1982 by Virginia to obtain custody of Jones, and the prosecu-
tion advances no explanation or excuse for the delay.6 The reasons for
the delay are not clear. However, as the Magistrate Judge, who con-
ducted the factfinding in this case opined, it appears that "the primary
reason was neglect by Wise County officials." J.A. 26.7 In light of the
_________________________________________________________________

6 The Commonwealth of Virginia had at its disposal three different
methods for obtaining temporary custody of Jones in order to try him.
First, a state may obtain temporary custody through the Interstate Agree-
ment on Detainers. Va. Code Ann. §§ 53.1-210 through 53.1.-215
(Michie 1994). Second, the Uniform Criminal Extradition Act allows a
state to secure temporary custody over another state's prisoner in order
to try him or her. Va. Code Ann. §§ 19.2-85 through 19.2-118 (Michie
1995). Finally, Virginia could have sought a writ of habeas corpus ad
prosequendum. While such writs are normally used by federal courts to
gain custody of individuals in state custody, state courts may issue the
writs to other states. See, e.g., Steward v. Bailey, 7 F.3d 384, 386 (4th
Cir. 1993).

7 While the district court found that the evidence demonstrated that
Jones was "at least as blameworthy for the delay" as the Commonwealth,
the evidence only showed that for the period following 1982. J.A. 14.
Prior to 1982, there is no evidence that Jones was responsible for the
delay. Indeed, the evidence reflects that the Commonwealth failed to act
at all during the vast majority of the delay--the period between 1975 and
1982.

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unexplained extraordinary delay attributable to Virginia prosecutors
and the evidence at trial, if Jones could demonstrate actual prejudice,
under Howell v. Barker, 904 F.2d 889 (4th Cir), cert. denied, 498 U.S.
1016 (1990), he would be entitled to a dismissal of the indictment.8

Jones, however, failed to demonstrate actual prejudice. Jones
named several potential witnesses who lived in the same hotel where
he claims he was on the day of the murder, and he raised the absence

of the hotel's records as prejudicial to his defense.9 Jones failed, how-
ever, to demonstrate what the missing witnesses would have testified
to or what the missing documents would have shown that would have
been exculpatory. Jones also failed to demonstrate that there were no
other witnesses or documents that could establish the same objective.

Actual prejudice must be demonstrated with more than mere specula-
tion. Thus, I concur in the judgment, though I believe it overstates the
factual basis which supports it.
_________________________________________________________________

8 The delay was so extraordinary that the district court found that it
verged on "actual prejudice per se." J.A. 13.

9 As explained previously, all but one of the witnesses Jones named had
disappeared in the long delay. And that one witness suffered from a
faded memory due to the passage of time. All hotel records had been
destroyed as the result of regular document destruction.




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