                         RECOMMENDED FOR FULL-TEXT PUBLICATION
                              Pursuant to Sixth Circuit Rule 206
                                      File Name: 09a0394p.06

                 UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                    _________________


                                                 X
                           Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                  -
                                                  -
                                                  -
                                                       No. 09-3053
          v.
                                                  ,
                                                   >
                                                  -
                        Defendant-Appellant. -
 GABRIEL SCHAFFER,
                                                  -
                                                 N
                   Appeal from the United States District Court
                  for the Northern District of Ohio at Cleveland.
             No. 08-00097-002—Patricia A. Gaughan, District Judge.
                                     Argued: July 29, 2009
                           Decided and Filed: November 12, 2009
       Before: BATCHELDER, Chief Judge; DAUGHTREY, Circuit Judge; VAN
                                                  *
                       TATENHOVE, District Judge.
                                      _________________
                                           COUNSEL
ARGUED: Richard G. Lillie, LILLIE & HOLDERMAN, Cleveland, Ohio, for
Appellant. Daniel R. Ranke, ASSISTANT UNITED STATES ATTORNEY, Cleveland,
Ohio, for Appellee. ON BRIEF: Richard G. Lillie, Gretchen A. Holderman, LILLIE
& HOLDERMAN, Cleveland, Ohio, for Appellant. Daniel R. Ranke, ASSISTANT
UNITED STATES ATTORNEY, Cleveland, Ohio, for Appellee.
                                      _________________

                                            OPINION
                                      _________________

        VAN TATENHOVE, District Judge. A grand jury charged Gabriel Schaffer with
conspiracy to commit computer fraud and to transport stolen property interstate. Upon
Schaffer’s motion, the district court dismissed the count charging interstate


        *
         The Honorable Gregory F. Van Tatenhove, United States District Judge for the Eastern District
of Kentucky, sitting by designation.


                                                  1
No. 09-3053         United States v. Schaffer                                    Page 2


transportation of stolen property but denied that motion in all other respects. Schaffer
then entered a conditional guilty plea, admitting that he conspired to commit computer
fraud. On appeal, Schaffer contends that the indictment should be dismissed due to the
omission of essential elements, violation of the statute of limitations, pre-indictment
delay, and entrapment as a matter of law. Because the district court correctly rejected
each of these arguments, we AFFIRM.

                                             I.

       Gabriel Schaffer and his co-defendant Dana Arvidson fell victim to a government
sting operation in which they conspired to obtain military secrets and laser missile
technology from what they believed was a Department of Defense (“DOD”) contractor.
The relevant events began on July 31, 2002, when an undercover FBI agent (“UC1”) met
Arvidson at a hotel in Independence, Ohio, and advised him that he wanted to outsource
wireless computer security services to a local Cleveland company. During that meeting,
Arvidson indicated that he was the sole owner of SecureNet and had developed
proprietary technology which allowed him to intercept wireless computer network traffic
from a greater range. Arvidson stated that he had intercepted communications from
approximately 500 wireless computer networks in Cleveland, including sensitive
information and passwords for employee accounts. He further claimed that he could
“spoof” MAC (media access control) addresses, obtain access to computer networks via
a WAP (wireless application protocol), and “break” the encryption used to protect the
privacy of communications on wireless computer networks.

       On October 10, UC1 and Arvidson met in Cleveland. During this meeting, UC1
told Arvidson that he knew an individual in Chicago who was interested in locating
someone with expertise in wireless computer networks to obtain information from a
DOD contractor. Later that month, Arvidson advised UC1 that “we have developed
some new technology that allows us to be more under the radar,” and explained that he
could now intercept communications “passively” from a significant distance. Arvidson
indicated that he was still interested in the “side project.”
No. 09-3053          United States v. Schaffer                                            Page 3


        During the next meeting, on December 3, after Arvidson reiterated his interest
in the “side project,” UC1 told Arvidson that the target was in Texas and UC1 wanted
to “bring up a couple of things . . . to give you (Arvidson) a chance to back out.” UC1
then told Arvidson that the target information was “laser missile technology type stuff
. . . anything you intercept out of the air . . . is probably going to be illegal . . . it’s gonna
be a problem if we were to get caught.” Arvidson replied, “I’m looking at this as a
security audit just like any other security audit . . . capturing data . . . I don’t really want
to know a whole ton about what I’m capturing . . . I’ll be happy to do the job, just as we
would any other job.” UC1 told Arvidson, “I know you developed a way that can’t be
traced with this passive technique but if for some reason it did get traced, people can get
in trouble. I just want you to know that.” Arvidson replied, “Absolutely, well that’s the
risk premium . . . I’m with you 100 percent.”

        The next day, Arvidson called UC1 and asked him numerous questions about the
location of the target computer system. UC1 gave Arvidson some specifics regarding
the company’s location and advised that an employee of the target company logged onto
the network every night through a wireless access point using his user ID and password.
He further explained that there was no guarantee the employee would actually upload
files. Arvidson advised UC1 that his first step would be to “go in and decrypt it” and
that if he would be “actively infiltrating with the person’s password, that changes my
risk level.” Arvidson stated that if “I do it passively the risk level is, I mean it’s high but
it’s relatively low, if I actually go in and compromise something, I’m still willing to do
it but my price is going to be higher.” About a month later, Arvidson sent UC1 an email
with a list of technical questions about the DOD contractor’s computer network.

        On February 12, 2003, UC1 and another undercover FBI agent (“UC2”) met with
Arvidson and Schaffer at a Cleveland hotel. UC2 made it clear that his client was
interested in “stealing military secrets and laser missile technology” from a “DOD
contractor in El Paso, TX.” During this meeting, Schaffer used a notebook computer to
demonstrate how their equipment could intercept wireless computer network traffic.
Arvidson and Schaffer then detailed how they could similarly intercept wireless
No. 09-3053        United States v. Schaffer                                      Page 4


computer network traffic from the DOD contractor, including an employee’s login user
ID and password. They further explained that after intercepting this information, they
would log into the DOD contractor’s computer network using the intercepted user ID
and password, imitate that employee’s physical computer system so they could not be
traced, locate the target information, and download it to their computer.

       Arvidson told UC2 that they wanted “25” up front for both him and Schaffer, and
“50” after completion of the theft. UC2 indicated that he would need a sample of the
stolen information to show his client in Chicago. If his client was happy with the stolen
information, UC2 would travel to Cleveland and pay the total fee in exchange for all the
stolen data. In the event they were unable to acquire the target information in El Paso,
UC2 said that he would pay them an hourly rate of $150 per hour for their time. UC2
would also pay for their airfare to and lodging in El Paso. Arvidson and Schaffer agreed.

       The trip to El Paso was planned for the last week of February. UC2 told
Arvidson and Schaffer that he would mail the plane tickets to Arvidson. Arvidson
provided UC2 with a business card that depicted an address for his other Cleveland
business, then Schaffer wrote “Gabe Schaffer” on the back of Arvidson’s business card.

       During a telephone call with Arvidson on February 18, UC1 clarified that
Arvidson’s fee for the theft, if successful, would be $100,000. One week later, UC2,
Arvidson, and Schaffer met in an El Paso, Texas, hotel room which had line-of-sight
access to the purported DOD contractor’s office. Arvidson and Schaffer connected three
antennas to their notebook computer in their attempt to locate the DOD contractor’s
wireless computer network. After they located the wireless network, Arvidson and
Schaffer immediately began intercepting network communications, including the user
ID and password of a purported DOD contractor employee. Once the purported
employee logged off, Arvidson and Schaffer used the intercepted user ID and password
to log onto the purported contractor’s network. Arvidson and Schaffer also “spoofed”
the purported employee’s physical computer system so that their notebook computer
would appear to be the employee’s computer.
No. 09-3053        United States v. Schaffer                                       Page 5


       Arvidson and Schaffer downloaded over 6,000 electronic files from two different
computer systems on the purported DOD contractor’s computer network. Arvidson
explained to UC2 that the data on one computer system was contained in sub-directories
of a main directory called “proprietary.” Arvidson and Schaffer advised that those sub-
directories had names like “air force,” “army,” “navy,” “wmsr,” and “marketing-data.”
They also advised that the data stolen from the other computer system was contained in
a directory called “000 Sensitive.”

       Upon completion of the theft, Arvidson and Schaffer copied the stolen data from
their notebook computer to an external hard drive, which they encrypted. Arvidson and
Schaffer told UC2 that they did not want to get caught with the information, so they gave
the external hard drive to UC2. They told UC2 that they would provide the “pass-key”
to decrypt the external hard drive when they received the $100,000 payment. Arvidson
indicated that he would provide UC2 with a CD-ROM disk containing the pass-key
needed to decrypt the external hard drive at their next meeting.

       Between March 3 and 13, 2003, UC2 and Arvidson corresponded via email and
arranged a meeting wherein Arvidson would provide the decryption key in exchange for
$100,000. On March 19, UC1, UC2, Arvidson, and Schaffer met at a Cleveland hotel
to exchange $100,000 for the decryption key to the external hard drive. UC2 brought
the external hard drive and tendered the $100,000. Schaffer wrote a list of instructions
for decrypting the external hard drive. Arvidson provided UC2 with a CD-ROM to be
used in conjunction with Schaffer’s instructions for decrypting the hard drive and
demonstrated the decryption process.

       Almost five years later, on February 27, 2008, a grand jury indicted Schaffer and
Arvidson. After requesting and obtaining a continuance of the trial date, Schaffer filed
several pre-trial motions including a motion for a bill of particulars and a motion to
dismiss. He sought dismissal of the indictment based upon pre-indictment delay, statute
of limitations, and entrapment. The district court granted part of Schaffer’s motion and
dismissed the portion of the indictment related to the interstate transportation of stolen
property. In all other respects, the district court denied Schaffer’s motion to dismiss.
No. 09-3053             United States v. Schaffer                                     Page 6


        Schaffer then filed a second motion for a bill of particulars.1 However, before
the district court ruled on either of his motions for a bill of particulars, Schaffer entered
a guilty plea. Pursuant to his written agreement, Schaffer’s plea was conditional,
preserving his right to appeal the district court’s denial of his motion to dismiss. On
January 12, 2009, the district court sentenced Schaffer to three years probation with six
months home confinement and ordered him to pay a $5,000 fine and $100 special
assessment. As contemplated by the plea agreement, Schaffer appealed.

                                                    II.

                                                    A.

        In his first argument, Schaffer challenges both the factual specificity and
sufficiency of the indictment. Schaffer contends that the indictment failed to give him
notice of the nature and cause of the allegations against him or an ability to prepare a
defense. He argues, as he did in his motions for a bill of particulars, that the indictment
lacks details or specifics concerning the computer fraud charge. Schaffer also asserts
that the indictment omits essential elements depriving the district court of jurisdiction.

        Generally, a valid guilty plea “bars any subsequent non-jurisdictional attack on
the conviction.” United States v. Martin, 526 F.3d 926, 932 (6th Cir. 2008) (quoting
United States v. Pickett, 941 F.2d 411, 416 (6th Cir. 1991)). Pursuant to Fed. R. Crim.
P. 11(a)(2), a defendant may, with the approval of the court and consent from the
government, enter a conditional plea of guilty “reserving in writing the right, on appeal
from the judgment, to review of the adverse determination of any specified pretrial
motion.” This rule places an “affirmative duty” on the defendant to preserve any issues
collateral to the determination of guilt or innocence by specifying them in the plea itself.
Pickett, 941 F.2d at 416. “[I]n the absence of a court-approved reservation of issues for
appeal, [a defendant pleading guilty] waives all challenges to the prosecution except
those going to the court’s jurisdiction.” Id. (citing Hayle v. United States, 815 F.2d 879,
881 (2d Cir. 1987)).


        1
            It does not appear that the United States responded to either motion.
No. 09-3053         United States v. Schaffer                                        Page 7


        Here, the parties disagree over the scope and effect of the plea agreement as to
whether Schaffer adequately preserved his right to appeal certain issues. Schaffer claims
that he properly preserved his challenge to the factual specificity of the indictment in a
specific paragraph in his plea agreement and through a reference to his motions for a bill
of particulars in a footnote in his motion to dismiss. Despite Schaffer’s arguments, we
hold that he did not properly preserve his factual specificity argument.

        Paragraph Q of the plea agreement states that “[b]y stipulating to the facts
contained in paragraphs O and P, the Defendant does not waive his right to contest, on
appeal of this Court’s Opinion and Order of August 4, 2008, the relevance and
applicability of such conduct to the indicted-offense.” That paragraph makes no mention
of Schaffer’s motions for a bill of particulars or the issues raised therein. There is
nothing in either of the referenced paragraphs that concerns the factual specificity of the
indictment. Instead, this paragraph appears to be related to Schaffer’s statute-of-
limitations argument. Paragraphs O and P of the plea agreement describe the March
2003 meeting during which the encryption key was exchanged for $100,000. As set
forth in a separate argument, Schaffer maintains that the March 2003 meeting cannot be
an overt act in furtherance of the conspiracy because the objective of the conspiracy (i.e.,
obtaining the electronic files) had already been accomplished. Thus, despite his
stipulation to those facts, it appears that Schaffer essentially reserved his right to
challenge the “relevance and applicability” of that final meeting as an overt act.
Paragraph Q of the plea agreement does not, however, allow Schaffer to contest the
factual specificity of the indictment.

        Schaffer also maintains that he can contest the factual specificity of the
indictment because he specifically preserved his right to challenge the denial of his
motion to dismiss. In a footnote in that motion, Schaffer indicated that he reserved his
right to challenge the specificity of the indictment and, in so doing, referenced his
motions for a bill of particulars. Schaffer’s attempt to reserve this argument appears to
be conditioned upon his “receipt of such Bill of Particulars and detailed charging
information from the Government.” However, reserving the right to raise an argument
No. 09-3053             United States v. Schaffer                                                    Page 8


and actually presenting that argument are two different things. Schaffer merely reserved
his right to “challenge the elements of charges filed and the details underlying the
Indictment,” but he did not actually present that argument in his motion to dismiss. The
district court’s order denying his motion, therefore, did not address that argument and
cannot be deemed an adverse ruling on that issue.2 Schaffer’s conditional guilty plea,
allowing him to challenge the denial of all issues raised in his motion to dismiss, did not
preserve his right to contest the specificity of the indictment to this court. See Pickett,
941 F.2d at 416. That argument was waived because it is a non-jurisdictional challenge
that was not specifically preserved in his plea agreement.

                                                     B.

         Schaffer also challenges the sufficiency of the indictment. His failure to raise
this argument in the district court or preserve it in his plea agreement is of no
consequence because, even if presented for the first time on appeal, claims of
jurisdictional defects in the indictment are not waived. See United States v. Hart, 640
F.2d 856, 857 (6th Cir. 1981). But when an indictment is not challenged until appeal,
as in this case, the indictment must be liberally construed in favor of its sufficiency. See
United States v. Gatewood, 173 F.3d 983, 986 (6th Cir. 1999) (citation omitted).
Moreover, to raise a successful challenge to the district court’s jurisdiction, a defendant
who enters a guilty plea must establish that the face of the indictment failed to charge
the elements of a federal offense. See United States v. Martin, 526 F.3d 926, 934 (6th
Cir.) (citations omitted), cert. denied, ___ U.S. ____, 129 S. Ct. 305 (2008). Schaffer
fails to make such a showing here.

         An indictment must include “a plain, concise, and definite written statement of
the essential facts constituting the offense charged.” Fed. R. Crim. P. 7(c)(1). An



         2
          The district court noted that the defendants argued for the first time in their reply brief that the
computer at issue was not a “protected” computer and claimed to “reserve their right” to challenge that
issue. They further alleged that the indictment failed to indicate “what and how ‘computer fraud’ is being
charged.” Noting that it was unclear whether the defendants were even seeking dismissal on these
grounds, the district court concluded that given the defendants’ failure to develop any argument regarding
these issues and the fact that they were raised for the first time in their reply brief, dismissal was not
appropriate.
No. 09-3053           United States v. Schaffer                                                Page 9


indictment is generally sufficient if it “fully, directly, and expressly . . . set[s] forth all
the elements necessary to constitute the offense intended to be punished.” United States
v. Douglas, 398 F.3d 407, 411 (6th Cir. 2005) (internal citation and quotation marks
omitted). In particular, the indictment must: (1) “set out all of the elements of the
charge[d] offense and must give notice to the defendant of the charges he faces[,]” and
(2) “be sufficiently specific to enable the defendant to plead double jeopardy in a
subsequent proceeding, if charged with the same crime based on the same facts.” Id. at
413 (internal citation omitted).

        Here, the defendants were charged with conspiracy to commit computer fraud
in violation of 18 U.S.C. § 371 and 18 U.S.C. § 1030(a)(4).3 To establish a violation of
18 U.S.C. § 371, the government must allege and prove “an agreement among the
conspirators to commit an offense attended by an act of one or more of the conspirators
to effect the object of the conspiracy.” United States v. Falcone, 311 U.S. 205, 210
(1940); see also United States v. Beverly, 369 F.3d 516, 532 (6th Cir. 2004). The
indictment satisfied these requirements. It alleged that the defendants did “unlawfully,
knowingly, and intentionally combine, conspire, confederate, and agree together . . . to
commit computer fraud.” More specifically, the indictment charged Schaffer with
“conspir[ing] to unlawfully access a computer used by a Department of Defense
contractor in El Paso, Texas, in order to fraudulently obtain military secrets and laser
missile technology . . . .” The indictment also set forth the objective of the conspiracy,
the role played by each defendant, the overt actions taken in furtherance of the
conspiracy, and the means used to accomplish it. By setting forth the elements of
conspiracy and by referencing 18 U.S.C. § 1030(a)(4), the indictment satisfied the
requirements of Fed. R. Crim. P. 7(c)(1) and notified Schaffer that he was accused of
conspiring to knowingly and with intent to defraud, access a protected computer without
authorization to obtain something of value. Thus, the indictment contained sufficient




        3
          Title 18 U.S.C. § 1030(a)(4) is violated when one “knowingly and with intent to defraud,
accesses a protected computer without authorization, or exceeds authorized access, and by means of such
conduct furthers the intended fraud and obtains anything of value.”
No. 09-3053         United States v. Schaffer                                      Page 10


information to invoke federal jurisdiction and clearly contained on its face all of the
elements necessary to state a federal offense.

        Although couched as a jurisdictional argument, Schaffer at least impliedly
contends that the conspiracy in this case is a legal impossibility. He notes that the “fake
computer accessed by [the defendants] contained bogus information, was located in the
pretend office of an alleged defense contractor, was not for access exclusively by a
financial institution, was not used in interstate of foreign commerce or communication,
and was not used in a manner that affected interstate or foreign commerce or
communication.” According to Schaffer, the absence of any of these elements precluded
the district court’s jurisdiction. Schaffer’s argument is misplaced.

        The basis of the conspiracy charge is the agreement to commit the unlawful act,
and not the unlawful act itself. Because the “illegality of the agreement does not depend
upon the achievement of its ends,” it is irrelevant that it may have been objectively
impossible for the conspirators to commit the substantive offense.” United States v.
Yang, 281 F.3d 534, 544 (6th Cir. 2007) (quoting United States v. Hsu, 155 F.3d 189,
203 (3d Cir. 1998)). Indeed, it is the mutual understanding or agreement itself that is
criminal, and whether the object of the scheme actually is, as the parties believe it to be,
unlawful is irrelevant. See id. To the extent that Schaffer’s jurisdictional argument is
based on a claim of legal impossibility, it must fail.

                                            C.

        Schaffer next argues that the indictment should have been dismissed because the
five-year statute of limitations expired before the indictment was filed. In this case, the
indictment was returned on February 27, 2008. According to Schaffer, the last overt act
in furtherance of the conspiracy occurred on February 25, 2003, when the defendants
traveled to El Paso and obtained the data from the computer system. Because Schaffer
also points to that date as the completion of the conspiracy’s objective, he contends that
the statute of limitations ran prior to the filing of the indictment.
No. 09-3053         United States v. Schaffer                                        Page 11


        “[N]ormally, the date of the last overt act in furtherance of the conspiracy alleged
in the indictment begins the clock for purposes of the five-year statute of limitations.”
United States v. Grenoble, 413 F.3d 569, 574 (6th Cir. 2005) (quoting United States v.
Smith, 197 F.3d 225, 228 (6th Cir. 1999)); see also 18 U.S.C. § 3282. Thus, in the
statute of limitations context, “the crucial question . . . is the scope of the conspiratorial
agreement, for it is that which determines both the duration of the conspiracy, and
whether [an] act . . . may properly be regarded as in furtherance of the conspiracy.”
Grunewald v. United States, 353 U.S. 391, 397 (1957).

        Here, the indictment described two overt acts that occurred less than five years
before the indictment was returned. First, the indictment alleged that between March 3
and March 13, 2003, an undercover agent corresponded with Arvidson via email to
arrange a meeting wherein Arvidson “would provide the decryption key in exchange for
$100,000.” The indictment also alleged that on March 19, Schaffer and Arvidson met
undercover agents at a Cleveland hotel to deliver the decryption key to the external hard
drive, which contained the information illegally obtained from the purported DOD
contractor’s network, in exchange for $100,000.

        While Schaffer would have the conspiracy end with the interception of the
computer data, neither the record nor common sense supports such a limited
interpretation. Nothing in the record suggests that Schaffer agreed to steal military
secrets and missile technology for other than a remunerative purpose. Rather, the scope
of the conspiracy clearly contemplated the monetary payment in exchange for the data
that the defendants obtained. The specific terms of that payment were discussed
multiple times. Initially, Arvidson had requested an up-front payment of $25,000 for
both him and Schaffer, and $50,000 after completion of the theft. However, it was later
agreed that the fee for the theft would be $100,000, if successful. In addition, after
Schaffer and Arvidson copied the stolen data to an external hard drive, encrypted it, and
gave it to the undercover agent, they explained that they would provide the “pass-key”
to decrypt the hard drive when they received the $100,000 payment.
No. 09-3053        United States v. Schaffer                                      Page 12


       Under these facts, the defendants’ participation in the conspiracy was contingent
upon the payment. Schaffer and Arvidson essentially negotiated their fee for obtaining
the information. By encrypting the hard drive, they maintained constructive control of
the stolen information and could prevent others from accessing it until they received
payment for their services. The conspiracy in this case, therefore, continued until the
anticipated payment for the defendants’ efforts was received. Consequently, the
defendants’ efforts in setting up and attending the meeting to exchange the decryption
key for the $100,000 payment constitute overt acts in furtherance of the conspiracy.
Indeed, “[c]ase law gives ample support to the proposition that payment is an integral
and often final term in a conspiracy.” United States v. Fitzpatrick, 892 F.2d 162, 167
(1st Cir. 1989) (quoting United States v. Hamilton, 689 F.2d 1262, 1270 (6th Cir. 1982),
cert. denied, 459 U.S. 1117 (1983)). Because the indictment was returned within five
years of the last act in furtherance of the conspiracy, no statute of limitations violation
occurred.

                                            D.

       Schaffer argues that the district court erred in failing to dismiss the indictment
based upon pre-indictment delay and resulting prejudice. Pre-indictment delay and post-
indictment delay present separate issues.        The former is governed by the Fifth
Amendment, see United States v. Rogers, 118 F.3d 466, 475-76 (6th Cir. 1997), while
the latter is a Sixth Amendment matter, see United States v. Graham, 128 F.3d 372, 374
(6th Cir. 1997). The Sixth Amendment right to a speedy trial does not come into play
until “arrest, indictment or other official accusation.” Doggett v. United States, 505 U.S.
647, 655 (1992). Moreover, the speedy trial clause does not “require the Government
to discover, investigate, and accuse any person within any particular period of time.”
United States v. Marion, 404 U.S. 307, 313 (1971); see also United States v. Loud Hawk,
474 U.S. 302, 312 (1986). Because Schaffer was neither arrested for violating federal
law nor officially accused of doing so prior to his indictment on February 27, 2008, the
protections of the Sixth Amendment were not triggered in this case before that date.
No. 09-3053        United States v. Schaffer                                    Page 13


Schaffer’s claims about pre-indictment delay must therefore be resolved in the context
of the Fifth Amendment.

       The Supreme Court recognizes that the Due Process Clause of the Fifth
Amendment protects against oppressive pre-indictment delay. See, e.g., Marion, 404
U.S. at 324-25; United States v. Lovasco, 431 U.S. 783, 789 (1983). In this circuit,
dismissal for pre-indictment delay “is warranted only when the defendant shows
substantial prejudice to his right to a fair trial and that the delay was an intentional
device by the government to gain a tactical advantage.” United States v. Greene, 737
F.2d 572, 574 (6th Cir. 1984) (quoting United States v. Brown, 667 F.2d 566 (6th Cir.
1982) (per curiam)).

       Schaffer contends that he was prejudiced because his own recollection of what
occurred in 2003 had obviously faded five years later. He also asserts that the
Government’s evidence failed to “include any record of conversations” he had with
Arvidson or “any record of their beliefs and understandings at the time regarding the
manner, means, method and content of the information they obtained . . . .” Despite
these general allegations, Schaffer points to no examples of actual prejudice. He does
not contend that he was unable to assist in his own defense, nor does he suggest that
witnesses were unavailable or that specific evidence had been lost or destroyed. Simply
put, Schaffer falls far short of demonstrating that he was actually and substantially
prejudiced by the delay.

       Nonetheless, Schaffer, relying on the Supreme Court’s decision in Doggett v.
United States, 505 U.S. 647 (1992), submits that this court should presume prejudice.
According to Schaffer, Doggett is “dispositive as to the issue of whether there is a
presumption of prejudice in circumstances when the Government fails to act within a
reasonable time.” However, Doggett’s application to the situation at hand is limited at
best. In Doggett, the Supreme Court held that a lengthy post-indictment delay is
presumptively prejudicial to the defendant for the purposes of establishing a Sixth
Amendment speedy trial claim. Id. at 655.
No. 09-3053        United States v. Schaffer                                      Page 14


       In Jones v. Angelone, 94 F.3d 900 (4th Cir. 1996), the Fourth Circuit addressed
an argument virtually identical to the one raised by Schaffer. In that case, Jones urged
the court to extend the rule of presumptive prejudice in Doggett to pre-indictment delays
which potentially give rise to claims under the Due Process Clause of the Fifth
Amendment. The Fourth Circuit noted that “[t]he Due Process Clause has never been
interpreted so as to impose a presumption of prejudice in the event of lengthy pre-
indictment delay.” Id. at 906. Declining to extend Doggett beyond the post-indictment,
speedy trial realm, the court concluded that “a rule of presumptive prejudice in [the pre-
indictment delay] context would be at odds with established Supreme Court authority.”
Id.

       Here, like the defendant’s argument in Jones, Schaffer’s contention that prejudice
should be presumed is directly contradicted by Supreme Court precedent. 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.” United States v. Gouveia, 467 U.S. 180, 192 (1984) (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 prejudice, but at the present time appellees’
due process claims are speculative and premature.”).

       On the record before the court, Schaffer has failed to demonstrate that he was
actually prejudiced by the delay. Moreover, “the acceptability of a pre-indictment delay
is generally measured by the applicable statute of limitations.” United States v. Atisha,
804 F.2d 920, 928 (6th Cir. 1986), cert. denied, 479 U.S. 1067 (1987); see also Lovasco,
431 U.S. at 789 (noting that “statutes of limitations, which provide predictable,
legislatively enacted limits on prosecutorial delay, provide ‘the primary guarantee
against bringing overly stale criminal charges’”) (citation omitted). Because the
indictment in this case was returned within the five-year limitations period, the pre-
indictment delay, absent a showing of actual prejudice, was not fatal.
No. 09-3053        United States v. Schaffer                                     Page 15


       Schaffer’s failure to demonstrate actual prejudice makes it unnecessary to decide
whether he established that the delay was an intentional device by the government to
gain a tactical advantage. See Greene, 737 F.2d at 575 (declining to reach prejudice
prong where defendant failed to show that delay was an intentional device).
Nonetheless, Schaffer also failed to make the requisite showing that the delay was
undertaken by the government to gain a tactical advantage over him. The burden is on
the defendant to show “that the delay between the alleged incident and the indictment
was an intentional device on the part of the Government to gain a decided tactical
advantage in its prosecution.” Id. at 574. Saying that there could be no valid reason for
the Government’s delay in bringing this case, Schaffer urges us to presume that the delay
was for an improper purpose. The applicable standard, however, neither imputes nor
presumes an improper purpose where the defendant simply cannot fathom a valid reason
for the delay. Rather, it requires Schaffer to demonstrate that the Government “had no
valid reason for the delay.” United States v. DeClue, 899 F.2d 1465, 1468-69 (6th Cir.
1990). Schaffer wholly fails to make such a showing.

                                           E.

       In his final argument on appeal, Schaffer contends that the district court erred in
failing to dismiss the indictment based upon entrapment. He insists that, at the time of
the instant offense, he was a law-abiding young man who had been educated in computer
sciences and was clearly not predisposed to any criminal activity. Absent the repeated
and continued enticement of the undercover agents, Schaffer maintains, he would have
committed no crime.

       It is seldom appropriate to grant a pre-trial motion to dismiss based on an
entrapment defense, because the defense focuses on a defendant’s state of mind, an
evidentiary question. See United States v. Fadel, 844 F.2d 1425, 1431 (10th Cir. 1988).
To warrant dismissal before trial on the ground that the defendant was entrapped as a
matter of law, we have held that “the undisputed evidence must demonstrate a ‘patently
clear’ absence of predisposition.” United States v. Harris, 9 F.3d 493, 498 (6th Cir.
1993) (quoting United States v. Barger, 931 F.2d 359, 366 (6th Cir. 1991)); see also
No. 09-3053         United States v. Schaffer                                      Page 16


United States v. Osborne, 935 F.2d 32 (4th Cir. 1991) (defense of entrapment may only
be resolved prior to trial where there is absolutely no evidence to support it).

        Here, Schaffer failed to demonstrate a patently clear absence of predisposition.
While he presents arguments in support of his entrapment claim, they are not based on
undisputed evidence.      In denying Schaffer’s argument below, the district court
appropriately recognized that it “simply [could] not accept statements made in
defendant’s brief to establish entrapment as a matter of law.” The court also noted that
testimony and facts must be undisputed and that the court may not choose between
conflicting testimony or make credibility determinations. See United States v. Pennell,
737 F.2d 521, 534 (6th Cir. 1984). The district court, therefore, concluded that the
entrapment issue could not be resolved until after evidence was presented at trial. The
court further denied Schaffer’s request for an evidentiary hearing, finding that the
entrapment defense “is so central to the general issues in the case that holding a hearing
solely on entrapment would be tantamount to two trials.”

        Consistent with the district court’s holding, well-established precedent makes it
clear that the question of entrapment is generally one for the jury, rather than for the
court. See, e.g., Mathews v. United States, 485 U.S. 58, 63 (1988) (citation omitted).
In related areas, courts discourage the pre-trial disposition of motions to dismiss that are
based on defenses requiring fact finding. For example, in United States v. Knox, 396
U.S. 77, 78-79 (1969), the district court dismissed an indictment charging the defendant
with knowingly and willfully submitting false tax forms. On appeal, the defendant
asserted that the federal tax statutes compelled him to submit the false statements
because the statutes provided for penalties if he did not file the forms. See id. at 81. In
reversing the dismissal of the indictment, the Supreme Court concluded that “the
question whether Knox’s predicament contains the seeds of a ‘duress’ defense, or
perhaps whether his false statement was not made ‘willfully’ as required by § 1001, is
one that must be determined initially at trial.” Id. at 83. The Court further noted that
Fed. R. Crim. P. 12 “indicates that evidentiary questions of this type should not be
determined on such a motion.” Id.
No. 09-3053        United States v. Schaffer                                   Page 17


       Therefore, we conclude that the district court committed no error in denying
Schaffer’s motion to dismiss based upon entrapment as a matter of law. To the contrary,
the district court correctly held that such an argument is more appropriately addressed
after evidence is presented at trial. Whether Schaffer would have been entitled to an
entrapment instruction is a question that cannot be answered on the record before this
court because Schaffer waived his right to trial by pleading guilty.

                                          III.

       For the foregoing reasons, we AFFIRM the denial of Schaffer’s motion to
dismiss.
