                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 06-1785
                                    ___________

United States of America,           *
                                    *
            Appellee,               *
                                    * Appeal from the United States
       v.                           * District Court for the
                                    * Northern District of Iowa.
Terrence K. Gladney, also known     *
as D.J.,                            *
                                    *
            Appellant.              *
                                __________

                              Submitted: October 17, 2006
                                 Filed: February 2, 2007
                                  ___________

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

RILEY, Circuit Judge.

       Terrence Gladney (Gladney) was charged with conspiracy to distribute crack
cocaine and distribution of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(B)-(C), and 846. After trial commenced, and just before closing arguments,
Gladney made an oral motion to dismiss the indictment, arguing the government’s
nineteen-month delay in bringing his federal indictment had resulted in a due process
violation. The district court1 declined to address the motion at that time and directed

      1
       The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
Gladney to submit his motion in writing after trial. The jury convicted Gladney and,
thereafter, the district court denied his motion to dismiss the indictment. Gladney
appeals the district court’s denial of his motion to dismiss. In addition, Gladney
appeals the district court’s refusal to give an addict-informer jury instruction. For the
reasons stated below, we affirm.

I.      BACKGROUND
        On April 21, 2005, a grand jury returned a superseding indictment charging
Gladney and co-defendant Sylvester Watkins (Watkins) with conspiracy to distribute
crack cocaine and distribution of crack cocaine. At trial, John Saldivar (Saldivar), a
confidential informant, testified Gladney and Watkins were engaged in a partnership
to distribute crack cocaine in Cedar Rapids, Iowa. Saldivar testified Gladney sold him
crack cocaine on August 12, 2003, and on September 11, 2003.

       With respect to the August 12, 2003 sale, Special Agent Josh Lupkes (Agent
Lupkes) and Investigator Anthony Robinson (Investigator Robinson), both with the
Drug Enforcement Administration’s Drug Task Force (DEA), testified Saldivar made
a phone call to arrange the purchase of one-half ounce of crack cocaine from Gladney.
Agent Lupkes and Investigator Robinson testified they searched Saldivar, provided
him with pre-serialized currency, and equipped Saldivar with a transmitting device.
Investigator Robinson testified Saldivar did not appear to be under the influence of
any illegal substances during this or any other encounter he had with Saldivar.

       Saldivar then met Gladney and Watkins at a parking lot where Saldivar entered
their car. Saldivar testified once inside the car, Gladney and Watkins told him they
had already sold the one-half ounce of crack cocaine they promised Saldivar. Thus,
Gladney and Watkins sold Saldivar only one gram of crack cocaine for which Saldivar
paid Watkins $100. Saldivar testified Gladney and Watkins told him they were
leaving for Chicago to obtain more crack cocaine. Special Agent Greg Brugman
(Agent Brugman), also with the DEA, testified he heard the conversation regarding

                                          -2-
the trip to Chicago over the transmitting device as Agent Brugman was conducting
surveillance of the drug transaction.

        After the drug transaction, Gladney and Watkins drove away and DEA agents
followed them for approximately twenty-five miles on Interstate 380 South. When
Gladney and Watkins drove onto Interstate 80 East, Johnson County (Iowa), Deputy
Chris Langenberg (Deputy Langenberg) stopped their vehicle. Investigator Robinson
testified he requested the traffic stop by Deputy Langenberg in order to identify
Gladney and Watkins.

       During the traffic stop, Coralville, Iowa, Police Officer Maleah Droll (Officer
Droll) assisted Deputy Langenberg. Neither Deputy Langenberg nor Officer Droll
knew the details of the drug transaction, nor were they given the serial numbers of the
currency used in the drug transaction. Deputy Langenberg conducted a canine search
of the car, but did not find any drugs. Officer Droll testified the search was underway
when she arrived and that she did not participate in the search of the car. Officer
Droll, however, testified she conducted a pat-down for weapons on either Gladney or
Watkins, but she could not remember which one.

      With respect to the September 11, 2003 drug transaction, Saldivar testified he
arranged to purchase one ounce of crack cocaine from Gladney. Saldivar placed a
recorded call to Gladney from the DEA office. Again, Agent Lupkes and Investigator
Robinson testified regarding the preparations for this drug transaction, i.e., searching
Saldivar, giving Saldivar pre-serialized currency, and fitting Saldivar with a
transmitting device.

      For this drug transaction, Saldivar met Gladney in an alley where he entered a
car with Illinois plates driven by Gladney. Gladney drove around the block, stopped
the car, and handed Saldivar nineteen baggies of crack cocaine for which Saldivar
paid Gladney $1,000.

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      During trial, Gladney asserted an alibi defense with regard to the events of
September 11. Gladney called his girlfriend Shelneka Benton (Benton) to testify as
to Gladney’s whereabouts on that day. Benton testified Gladney was with her on the
afternoon of September 11, paying a security deposit at Park Place Apartments in
Portage, Indiana. Benton also testified that, after paying the security deposit, she and
Gladney went to his parents’ home.

       Gladney also called Lori Smith (Smith), the manager of Park Place Apartments,
as a witness. Smith testified a security deposit receipt for the Benton and Gladney
apartment was written on September 11, 2003. The receipt was introduced into
evidence. Smith testified the Park Place Apartments are comprised of 216 units, some
of which have multiple tenants. Thus, Smith testified she did not know exactly who
paid the security deposit on September 11, nor did Smith’s paperwork indicate who
made the payment.

       After the first day of trial, Gladney filed a proposed jury instruction regarding
the credibility of an addict-informer. The district court refused to use Gladney’s
proposed jury instruction in its final instructions. After two days of trial, and just
before the jury was to enter the courtroom to hear closing arguments, Gladney made
an oral motion to dismiss the indictment based upon pre-indictment delay. The
district court declined to address the motion, and directed Gladney to submit his
motion in writing after trial.

       The jury convicted Gladney on the conspiracy and distribution charges,2 and the
district court denied Gladney’s motion to dismiss the indictment. Gladney appeals the
district court’s denial of his motion to dismiss and the court’s rejection of his proposed
jury instruction regarding the credibility of an addict-informer.

      2
       The jury, however, was unable to reach a verdict with respect to a third count
charging Gladney with distribution of crack cocaine within 1,000 feet of a school.
This charge was dismissed.

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II.    DISCUSSION
       A.     Motion to Dismiss the Indictment
       Gladney argues the district court erred in denying his motion to dismiss the
indictment based upon pre-indictment delay. We review the district court’s denial of
Gladney’s motion to dismiss for clear error. United States v. Haskell, 468 F.3d 1064,
1070 (8th Cir. 2006). The Fifth Amendment’s Due Process Clause protects a criminal
defendant against unreasonable pre-indictment delay. Id. To prove a violation of his
due process rights, Gladney must establish the delay resulted in actual and substantial
prejudice to the presentation of the defense and the government intentionally delayed
Gladney’s indictment either to gain a tactical advantage or to harass him. Id. The
court will inquire into the reasons for delay only where actual prejudice has been
established. United States v. Sturdy, 207 F.3d 448, 452 (8th Cir. 2000). To establish
actual prejudice, a defendant must identify witnesses or documents lost during the
delay period. Id. However, actual prejudice cannot be established by defendant’s
speculative or conclusory claims of possible prejudice as a result of the passage of
time. Id. The defendant carries the burden to show the lost testimony or information
is not available through other means. Id.

       The government contends the district court did not err in denying Gladney’s
motion to dismiss because his motion was untimely. We agree. Gladney had
sufficient time to raise the pre-indictment delay issue earlier than he did. See United
States v. Farmer, 312 F.3d 933, 936 (8th Cir. 2002). In Farmer, we found the
defendant’s claim of pre-indictment delay3 made after trial had commenced was
untimely; thus, we did not consider the merits of the claim. Id. Similarly, Gladney
did not object to the delay until immediately before closing arguments. Gladney
alleges he was unable to properly raise his motion earlier because he had to wait until
the last witness concluded her testimony. However, Gladney does not indicate with


      3
       We assume, without deciding, as did Farmer, 312 F.3d at 936, a delay in filing
an indictment constitutes a defect in the indictment.

                                         -5-
any degree of specificity what information or testimony prevented him from raising
the delay issue until just prior to closing arguments.

       As an alternative explanation for his delay, Gladney states he became aware of
his alleged alibi witness, Smith, after the deadline for motions had passed; thus, he
was unable to make his motion earlier. However, the record indicates Gladney filed
motions to continue deadlines and, in fact, Gladney obtained a continuance based
upon the discovery of his alleged alibi a few days before trial. Gladney could have
raised the pre-indictment delay issue at that time or shortly thereafter. Gladney’s
argument that he had to wait until a few minutes before closing arguments, as his case
was going to the jury, in order to raise the pre-indictment delay issue is without merit.

       However, even if Gladney’s delay could be considered timely, Gladney’s
motion still must be denied because he failed to establish any delay resulted in actual
and substantial prejudice to the presentation of his defense. As previously stated,
actual prejudice cannot be established by a defendant’s speculative or conclusory
claims of possible prejudice as a result of the passage of time. Sturdy, 207 F.3d at
452. Here, Gladney claims the passage of time prejudiced him because his witnesses
were not able to recall events. Specifically, Gladney claims Officer Droll (the second
officer who assisted in Gladney’s traffic stop) and Smith (his alleged alibi witness)
were unable to recall precisely their encounters with Gladney.

      Gladney states the passage of time impaired Officer Droll’s ability to remember
whether she searched Gladney or found pre-serialized currency in Gladney’s
possession. However, Officer Droll testified that, although she could not remember
which defendant she questioned in her patrol car, Officer Droll only conducted a pat-
down for weapons, not a search. In addition, nothing in the record indicates Officer
Droll knew any specific details of the drug transaction that took place prior to
Gladney’s traffic stop nor did Officer Droll know the serial numbers of the currency
used in the drug transaction. Gladney’s claim regarding Officer Droll’s memory is
without merit.
                                         -6-
       Gladney also states the passage of time impaired Smith’s ability to remember
who paid the security deposit on September 11, 2003. Gladney contends that, had the
indictment been filed timely, Smith could have remembered Gladney and Benton were
together when the deposit was paid. However, this claim is, at best, speculative and
conclusory. Smith testified she manages 216 units at Park Place Apartments and some
units have multiple tenants. To determine whether Smith would have been able to
recall exactly who appeared to pay the security deposit that day is speculative.
Gladney cannot establish actual prejudice based on such conjecture.

       Furthermore, to establish prejudice, a defendant must show the missing
testimony was not available through other sources. Id. Gladney presented the
testimony of his girlfriend, Benton, who stated that on September 11, Gladney was
with her at Park Place Apartments paying the security deposit. Here, Gladney
presented the desired testimony through Benton, thus, actual prejudice cannot be
established. See id.

      The district court did not commit clear error in denying Gladney’s motion to
dismiss for pre-indictment delay.

      B.     Addict-Informer Jury Instruction
      Gladney also argues the district court erred in rejecting his proposed addict-
informer jury instruction. We disagree. We review a district court’s rejection of a
defendant’s jury instruction for abuse of discretion. United States v. Davis, 237 F.3d
942, 945 (8th Cir. 2001).

       This circuit has not adopted the rule that an addict-informer instruction must be
given if requested. The need for such an instruction depends on the circumstances of
each case. United States v. Dempewolf, 817 F.2d 1318, 1321 (8th Cir. 1987); see
United States v. Gardner, 139 F. App’x. 762, 765 (8th Cir. 2005) (per curiam)
(unpublished). The presence of any of the following factors may make an addict-
                                           -7-
informer instruction unnecessary: (1) a dispute as to whether the informant is actually
an addict, (2) cross-examination concerning the informant’s addiction, (3) an
instruction alerting the jury to view the informant’s testimony with care, and (4)
corroboration of the informant’s testimony. Dempewolf, 817 F.2d at 1321.

       Here, nothing in the record indicates Saldivar used drugs during the dates in
question. In fact, Investigator Robinson testified Saldivar did not appear to be under
the influence of illegal drugs at the time the drug transactions occurred. In addition,
although Saldivar admitted to using cocaine “for like a day or two” while on probation
and tested positive for cocaine on September 16, 2003, Saldivar denied using drugs
on August 12 and September 11, 2003.

       Furthermore, Gladney’s counsel cross-examined Saldivar about his drug use.
The district court told Gladney’s counsel he could ask the jury to consider Saldivar’s
alleged drug use when evaluating Saldivar’s memory. In addition, the district court
instructed the jury that Saldivar had a cooperation agreement with the government,
through which Saldivar received money and other benefits, and that Saldivar had prior
convictions, which the jury could consider in deciding whether to believe Saldivar.
Moreover, much of Saldivar’s testimony was reinforced by the testimony of other
government witnesses, namely, Agent Brugman, Agent Lupkes, and Investigator
Robinson.

       Based on this evidence, we conclude the district court did not abuse its
discretion in refusing to give an addict-informer instruction.

III.   CONCLUSION
       Therefore, we affirm the judgment of the district court.
                       ______________________________




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