                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 05-2089
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
v.                                       * District Court for the
                                         * District of North Dakota.
John Lee Skinner,                        *
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: October 10, 2005
                                 Filed: January 6, 2006
                                  ___________

Before BYE, BEAM, and SMITH, Circuit Judges.
                            ___________

SMITH, Circuit Judge.

      John Lee Skinner was convicted by a jury on two counts: (1) conspiracy to
possess with intent to distribute and distribute a controlled substance (crack cocaine)
and (2) possession with intent to distribute a controlled substance (crack cocaine).
The district court1 sentenced Skinner to the mandatory minimum of 120 months'
imprisonment. On appeal, Skinner challenges the sufficiency of the evidence used to
convict him and the seven-month delay between his arrest and indictment in the


      1
       The Honorable Patrick A. Conmy, United States District Judge for the District
of North Dakota.
Burleigh County State Court and his indictment on federal charges. Because we find
Skinner's claims to be without merit, we affirm.

                                        I. Facts
       We view the facts in a light most favorable to the verdict. In February 2004,
John Skinner traveled from Kansas City, Kansas, to Bismarck, North Dakota, to
distribute crack cocaine. After arrival, Skinner began selling crack cocaine with
assistance from Kerrie Wolf, who helped him find customers and a place to stay.
Skinner met crack-cocaine suppliers at the bus station in Bismarck. Skinner returned
drug sale proceeds to Kansas City through couriers who would travel on the bus. The
last courier to arrive in Bismarck was Eric Johnson. Johnson stayed with Skinner and
Wolf in Wolf's mobile home. Skinner continued to sell crack cocaine and gave the
money to Johnson. On April 6, 2004, local police searched Wolf's mobile home where
Skinner lived. Police discovered a plastic bag containing 51.38 grams of crack
cocaine in a false beam in the living room. Skinner, although not present for search,
was arrested, and charged in Burleigh County State Court.

      Skinner was indicted in federal court on October 1, 2004, after which all state
charges were dropped. The two-count indictment charged Skinner with (1) conspiracy
to possess with intent to distribute and distributing a controlled substance (crack
cocaine) and (2) possession with intent to distribute a controlled substance (crack
cocaine). At trial, following the close of the government's case, Skinner moved for
a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29. Skinner's
motion was denied. The jury found Skinner guilty on both counts. The district court
sentenced Skinner to 120 months' incarceration, the mandatory minimum.

                                   II. Discussion
                           A. Sufficiency of the Evidence
      Skinner raises two issues on appeal. First, Skinner contends that the evidence
did not show he intentionally and knowingly possessed crack cocaine, a necessary

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element for both counts, which the government must prove beyond a reasonable
doubt. Skinner claims he never possessed either the crack cocaine or any of the other
exhibits admitted into evidence at trial. Skinner also challenges the credibility of
government witnesses Kerrie Wolf, Eric Johnson, Twyla Rae Hanson, and Heather
Mattson. He contends their testimony should not have been believed because it was
obtained by plea agreements and was uncorroborated by other evidence admitted
during the trial.

      Skinner further argues that the testimony of Daniel Ortega, Special Agent for
the Drug Enforcement Agency, could have only been interpreted to mean that Skinner
was never seen with the crack cocaine admitted into evidence at trial. Skinner notes
testimony that at the time of the search, Skinner had left in a car supposedly with
crack cocaine to make a delivery. However, Skinner points out that Steve Scheuer,
a patrol officer for the Bismarck police department, testified that police observed
Skinner from the time he left the mobile home until they pulled him over, yet no crack
cocaine was found in the car. Consequently, Skinner argues that the testimony and
evidence offered at trial was insufficient to sustain a conviction on counts one and
two, and a judgment of acquittal should be entered.

       "We review de novo the question of whether the evidence is sufficient to
support a conviction." United States v. Vazquez-Garcia, 340 F.3d 632, 636 (8th Cir.
2003). "Only if 'no interpretation of the evidence . . . would allow a reasonable-
minded jury to conclude guilt beyond a reasonable doubt' will we reverse a jury's
verdict on the grounds of insufficient evidence." United States v. Morton, 412 F.3d
901, 904 (8th Cir. 2005) (quoting United States v. Galvan, 961 F.2d 738, 740–41 (8th
Cir. 1992)).

      In this case, there is, in fact, sufficient evidence to support the jury's verdict.
At least four witnesses testified about Skinner's involvement in the sale of crack



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cocaine.2 Skinner's argument is not so much that evidence is lacking but that the
evidence presented lacked credibility. We have held on numerous occasions that
credibility is properly the province of the jury. E.g., United States v. Osuna-Zepeda,
416 F.3d 838 (8th Cir. 2005) (holding that there was sufficient evidence to uphold the
appellant's conviction because credibility is an issue for the jury to decide, and the
jury was aware that the cooperating witness had several felony convictions and that
he signed a plea agreement with the government in which he promised to cooperate).
Furthermore, the testimony of the co-conspirators was corroborated by physical
evidence. In light of the ample evidence in support of the jury verdict, we find that
Skinner's challenge to the sufficiency of the evidence is without merit.

                               B. Pre-Indictment Delay
       Second, Skinner asserts that his due process right under the Fifth Amendment
was violated during his incarceration in the Burleigh County Detention Center on
state charges. Skinner was held on state charges from April 6, 2004 until October 1,
2004. The state dropped its charges on that date, and the United States immediately
indicted Skinner on identical charges. Skinner alleges that his incarceration in county
jail involved a plan between state and federal prosecutors to hold him while the

      2
        Kerrie Wolf testified that Skinner and another individual named "CJ" arrived
in Bismarck with crack cocaine, which was sold by Skinner and herself. CJ held the
crack, and it was Skinner's responsibility to sell the crack. Three other men arrived
in Bismarck at other times with additional drugs, which Skinner sold. Twyla Hanson
testified that she purchased crack cocaine from Skinner five or six times. When she
arrived at Wolf's trailer for crack cocaine, Skinner would go to the back room and
obtain crack cocaine from someone else. Also, when Hanson first met Skinner, he
was with a man named "Yellow." Skinner and Yellow informed Hanson that they had
crack cocaine available. Eric Johnson testified that he transported crack cocaine to
Bismarck for sale, and he gave a portion of the drugs to Skinner and Wolf so that they
could help him sell it. Lastly, Heather Mattson testified that she purchased crack
cocaine from Skinner and Wolf five or six times a day. She witnessed Skinner sell
crack cocaine to others, and she assisted Skinner in selling crack cocaine. CJ would
keep the crack cocaine and would dole it out to Skinner to sell.

                                         -4-
United States developed its case against him. Skinner argues that by keeping him
incarcerated on state charges for six months, the United States was able to work with
the state on his prosecution while delaying his federal speedy trial right. This
collusion delayed his speedy trial right from starting to run for more than six months.
As a result, Skinner claims that the delay gave the federal government the advantage
of gathering evidence and testimony against him while he was in jail on state charges.
Further, Skinner contends that by keeping him in detention on state charges, the
federal government was able to circumvent the limits and exclusions in 18 U.S.C. §
3161.3 Thus, Skinner submits that he was unfairly prejudiced by the lapse of time and
asks that this court dismiss the two-count indictment against him.

       "The Due Process Clause of the Fifth Amendment protects a criminal defendant
against unreasonable pre-indictment delay." United States v. Sturdy, 207 F.3d 448,
451–52 (8th Cir. 2000). In order to show that his due process rights were violated,
Skinner must establish that (1) the delay resulted in actual and substantial prejudice
to the presentation of his defense and (2) the government intentionally delayed his
indictment either to gain a tactical advantage or to harass him. Id. at 452. "Alleged
prejudice is insufficient to establish a due process violation if it is 'insubstantial,
speculative or premature.'" United States v. Grap, 368 F.3d 824, 829 (8th Cir. 2004)
(quoting United States v. Golden, 436 F.2d 941, 943 (8th Cir. 1971)). Skinner must
show that he has been actually and substantially prejudiced by the delay, and the court
will inquire into the reasons for delay only where actual prejudice has been
established. Sturdy, 207 F.3d at 452. "To prove actual prejudice, a defendant must


      3
        18 U.S.C. § 3161(b) states that "[a]ny information or indictment charging an
individual with the commission of an offense shall be filed within thirty days from
the date on which such individual was arrested or served with a summons in
connection with such charges . . . . In any case in which a plea of not guilty is entered,
the trial of a defendant charged in an information or indictment with the commission
of an offense shall commence within seventy days from the filing date (and making
public) of the information or indictment . . . ."

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specifically identify witnesses or documents lost during delay properly attributable
to the government . . . it is the defendant's burden to show that the lost testimony or
information is not available through other means." Id.

       Based upon our review of the record, we hold Skinner failed to establish that
he was actually prejudiced as a result of any pre-indictment delay. In fact, Skinner has
presented no evidence that his defense strategy would have been different if he had
been indicted sooner or that any evidence became unavailable because of the time
lapse. Moreover, Skinner states no factual basis for his claim that the state and federal
authorities colluded with the purpose of denying him a constitutional right. The
record in this case is devoid of any evidence that the government intentionally
delayed seeking an indictment to gain any tactical advantage, but conversely, the
record shows that the government sought an indictment when it completed its
investigation. United States v. Sims, 779 F.2d 16, 17 (8th Cir. 1985). As Skinner has
not demonstrated any actual or substantial prejudice to his defense, his Fifth
Amendment pre-indictment delay claim fails.

      For the foregoing reasons, we affirm Skinner's conviction.
                      ______________________________




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