                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 12-4175


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

           v.

JAMES HARRIS, a/k/a James Davon Harris,

                Defendant – Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.     William D. Quarles, Jr., District
Judge. (1:11-cr-00187-WDQ-1)


Argued:   October 31, 2013                 Decided:   January 15, 2014


Before WILKINSON, DUNCAN, and DIAZ, Circuit Judges.


Affirmed by unpublished opinion. Judge Diaz wrote the opinion,
in which Judge Wilkinson and Judge Duncan joined.


ARGUED: Steven Hale Levin, LEVIN & CURLETT LLC, Baltimore,
Maryland, for Appellant. Michael Clayton Hanlon, OFFICE OF THE
UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.   ON
BRIEF: Rod J. Rosenstein, United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
DIAZ, Circuit Judge:

      A jury convicted James Harris of conspiracy to distribute

cocaine and possession with intent to distribute cocaine.                            He

was sentenced to 210 months’ imprisonment.                     On appeal, Harris

argues that the district court erred in denying his motion to

dismiss the indictment on the basis of unconstitutional delay,

and   in     granting   the   government’s      motion    in    limine    to    limit

cross-examination of the police officers involved in his arrest.

He    also     challenges     the   substantive       reasonableness       of       his

sentence.      For the reasons that follow, we affirm.



                                       I.

      “On appeal from a criminal conviction, we view the evidence

in the light most favorable to the government.”                    United States

v. Smith, 701 F.3d 1002, 1004 (4th Cir. 2012).

                                       A.

      On September 17, 2008, while on undercover assignment for

the   Baltimore      Police    Department,      Officer    Trabian       Smith      was

walking      down   West   Fairmount   Avenue    in   Baltimore     when       he   was

approached by a man later identified as Gordon Gingles.                     Gingles

asked Smith what he was looking for, and Smith replied with a

street term for crack cocaine.              Gingles then directed Smith to

Harris, who was standing nearby.              Smith approached Harris, and

Harris asked Smith what he needed.               After Smith replied “two,”

                                        2
Harris directed Markita Cook, who was sitting on the steps of

the adjacent house, to “get him two.”                 J.A. 374.      Cook went into

the house, and Harris told Smith to wait around the corner.

      Shortly thereafter, Cook approached Smith and handed him

two black-top vials that were later determined to contain crack

cocaine.      In exchange, Smith gave Cook two ten-dollar bills.

Smith then left the area and contacted an arrest team.                              The

arrest team, which included Detectives Angela Choi and Jared

Fried, subsequently arrested Harris and Cook.                       Choi and Fried,

along with other officers, later returned to the house armed

with a search warrant, where they found a woman named Ashley

Sparrow.     The officers briefly detained Sparrow, but ultimately

released her.        Inside the house, officers found black-top vials

(identical to the ones Cook provided to Smith), ziplock bags,

and a gun.

                                         B.

      Maryland      prosecutors   charged      Harris     in    state   court      with

narcotics and firearms offenses.               After Harris’s case had been

pending for approximately seven months, prosecutors placed it on

the   so-called      “stet”    docket,   allowing       it     to   remain   dormant

indefinitely.        Around the same time, Harris was found to have

violated     the    conditions    of     his    probation       from    an   earlier

conviction,        and   his   probation       term     was     extended     for    an

additional year.         On March 1, 2010, near the end of Harris’s

                                         3
extended       probation         term,       state     prosecutors      reactivated           the

dormant charges.                But after several subsequent postponements,

the case was dismissed.

     Around the time the state charges were dismissed, state

prosecutors         referred       Harris’s      case    to    the    federal      Bureau      of

Alcohol, Tobacco, Firearms, and Explosives (the “ATF”). 1                               The ATF

reviewed the case and filed a criminal complaint against Harris

on February 1, 2011.               A grand jury indicted Harris on March 31,

2011,    for       possession         with    intent    to    distribute       cocaine,       in

violation of 21 U.S.C. § 841(a)(1).                       On May 10, the grand jury

returned       a        superseding          indictment,       adding     a     charge        for

conspiracy         to    distribute       cocaine,      in    violation       of   21    U.S.C.

§ 846.

                                                C.

     While         awaiting        trial,       Harris        moved     to    dismiss         the

indictment.             He     argued   that     the    29-month      delay    between        his

September 17, 2008, arrest and the initiation of federal charges

violated   both          his    Fifth    Amendment      due    process       right      and   his

Sixth    Amendment           speedy     trial    right.        Harris    also      subpoenaed


     1
       In a hearing before the district court, counsel for the
government stated that he was not sure exactly when state
prosecutors referred the case to the ATF, but that it was not
until after the state case “had suffered some kind of fatal
problem.” J.A. 69. In any event, counsel stated that he “[did
not] think it was as early as March 2010.” Id.



                                                 4
disciplinary records for the Baltimore police officers involved

in his arrest, seeking information regarding prior allegations

of misconduct made against them.           Harris intended to use these

allegations as impeachment evidence on cross-examination of the

officers at trial.       The government filed a motion in limine to

prevent Harris from questioning the officers about the records.

     The district court denied Harris’s motion to dismiss and

granted the government’s motion in limine.           The court concluded

that Harris’s Fifth Amendment right had not been violated, as he

failed to demonstrate that he was prejudiced by pre-indictment

delay, and there was no indication that the delay was due to an

impermissible reason.        The court also explained that Harris’s

Sixth Amendment right was not implicated until the initiation of

federal charges, and that the brief period of delay between the

return of the federal indictment and the beginning of Harris’s

trial did not violate the Sixth Amendment.

     With    respect   to   the   government’s   motion     in    limine,   the

district court determined that only a minority of the complaints

detailed in the disciplinary records had been sustained upon

investigation.     And because none of the sustained complaints

involved    misconduct   related    to    untruthfulness,    they    were   not

admissible under Federal Rule of Evidence 608(b).                Although some

of the unsustained accusations in the records might have related

to untruthfulness, the court did not consider them probative of

                                      5
the     officers’   credibility,        and        it     expressed     concern         that

admitting them would “sidetrack[]” the trial with a “mini-trial”

on their veracity.          United States v. Harris, No. WDQ-11-0187,

2011 WL 2413771, at *6 (D. Md. June 8, 2011) (internal quotation

marks omitted).

      A jury convicted Harris on both counts.                    At sentencing, the

district    court   determined       that        Harris    was   a   career       offender

under U.S. Sentencing Guidelines § 4B1.1, based on his prior

state    convictions       for    robbery        and    attempted     murder.           This

enhancement    increased         Harris’s       offense    level     from    12    to    32.

Combined with a criminal history category of VI, it resulted in

an advisory Guidelines range of 210 to 262 months’ imprisonment.

Harris    requested    a    downward    variance,          noting     that   his    prior

convictions occurred when he was a juvenile and that he had been

abused as a child.           Rejecting Harris’s request, the district

court sentenced him to 210 months’ imprisonment, at the low end

of the Guidelines range.

      Harris timely noted this appeal.



                                        II.

                                            A.

        We first consider Harris’s argument that the district court

erred in denying his motion to dismiss the indictment due to

violations of his Fifth and Sixth Amendment rights.                           On appeal

                                            6
from a motion to dismiss an indictment, we review the district

court’s      factual     findings          for     clear     error    and   its        legal

conclusions de novo.             United States v. Brehm, 691 F.3d 547, 550

(4th Cir. 2012).

                                              1.

       The Fifth Amendment’s Due Process Clause requires dismissal

of    an   indictment       if    delay     prior     to   the   indictment       “caused

substantial        prejudice      to   [the       defendant’s]   rights     to    a     fair

trial” and “was an intentional device to gain tactical advantage

over the accused.”           United States v. Marion, 404 U.S. 307, 324

(1971).       To    prevail       on   a   due     process    claim    based     on    pre-

indictment delay, a defendant must first demonstrate that the

delay      resulted    in        “actual    prejudice.”          United     States        v.

Automated Med. Labs., Inc., 770 F.2d 399, 403 (4th Cir. 1985).

If this requirement is met, we then “balance[] the prejudice to

the     defendant     with       the   Government's        justification         for     the

delay,” to determine whether the government's action “violate[d]

fundamental conceptions of justice or the community's sense of

fair play and decency.”                Id. at 404 (internal quotation marks

omitted).

       To demonstrate prejudice, Harris argues that two witnesses

he would have called at trial--Ashley Sparrow and an individual

known as “Ray”--were unavailable as a result of pre-indictment

delay.     We have previously recognized that the unavailability of

                                              7
a witness may be a source of prejudice, but have explained that

succeeding on such a claim requires the defendant to carry a

heavy burden.          See Jones v. Angelone, 94 F.3d 900, 907-08 (4th

Cir. 1996).        The defendant must “identify the witness he would

have called; demonstrate, with specificity, the expected content

of    that    witness’[s]         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 provided was not available from other sources.”                              Id.

at 908.      At bottom, the defendant must demonstrate, beyond mere

speculation, that “he was meaningfully impaired in his ability

to defend against the . . . charges to such an extent that the

disposition       of    the    criminal    proceeding        was   likely       affected.”

Id. at 907.

      According to Harris, Sparrow “gave a statement to defense

investigators indicating that [Harris] was not present when the

undercover     officer        bought    two    vials    of   drugs    at    her   house.”

Appellant’s Br. at 15.                 Harris thus claims that her testimony

“would have corroborated the defense alibi offered at trial.”

Id.

      Even    if       we     accept    this       characterization        of    Sparrow’s

expected testimony, her absence does not establish prejudice for

purposes     of    Harris’s      Fifth    Amendment      claim.       Harris      has   not

provided any explanation as to why Sparrow is unavailable, and

                                               8
Harris’s counsel’s statements before the district court indicate

that he is simply unable to locate her.                             But given that an

investigator         for      Harris’s        counsel       previously        interviewed

Sparrow, it does not appear that Harris lost track of Sparrow

until sometime after he was indicted.                            Accordingly, any pre-

indictment      delay       did    not     “cause[]”      Sparrow’s     unavailability.

See Marion, 404 U.S. at 324.

       As for “Ray,” who apparently died prior to Harris’s federal

indictment, Harris fails to make the showing required by Jones.

According to Harris, Ray was inside the house with Sparrow at

the time the Baltimore police officers conducted the search.

Importantly,         however,       Harris        does     not     explain    how    Ray's

testimony would have aided his defense, and Harris does not even

know    Ray’s      real    name.         Before    the    district      court,   Harris’s

counsel could only speculate as to what information Ray could

provide.            Because       Harris     has    not     “demonstrate[ed],        with

specificity, the expected content of [Ray’s] testimony,”                            Jones,

94     F.3d   at     908,     Ray’s      unavailability          does   not   constitute

prejudice.         Having failed to demonstrate prejudice, Harris has

not established a violation of the Fifth Amendment.

                                              2.

       Nor    did    any    delay     in    this    case    violate      Harris’s    Sixth

Amendment right.            The Sixth Amendment provides that, “[i]n all

criminal prosecutions, the accused shall enjoy the right to a

                                              9
speedy and public trial.”                The Sixth Amendment right to a speedy

trial “does         not   apply     to    . . .   pre-indictment        delay,”      as   it

“does    not    attach     until     the     defendant       has    been     indicted     or

arrested.”       Jones, 94 F.3d at 906 n.6.               In assessing whether the

defendant’s speedy trial right was violated, we consider four

factors articulated by the Supreme Court in Barker v. Wingo: (1)

the “length of the delay”; (2) “the reason for the delay”; (3)

“the defendant's assertion of his right”; and (4) the “prejudice

to the defendant.”         407 U.S. 514, 530 (1972).

       With respect to the “length of delay,” only an arrest or

indictment on federal charges starts the speedy trial clock.

See United States v. MacDonald, 456 U.S. 1, 10 n.11 (1982); see

also      United States v. Garner, 32 F.3d 1305, 1309 (8th Cir.

1994) (“The arrest on state charges does not engage the speedy

trial protection for a subsequent federal charge.”).                                 Harris

concedes that this rule is “well established.”                          Appellant’s Br.

at 10.       But, emphasizing the 29-month period between his arrest

on state charges and his federal indictment, he urges us “to

apply    a     more    expansive         definition     of   ‘federal        charges’     to

include      time     spent    in    prison       on    state      charges    that      were

ultimately dropped and re-crafted as federal charges.”                         Id.

       In support of this admittedly “novel argument,” id., Harris

cites United          States   v.   Woolfolk,      in    which     we   suggested       that

speedy trial protections “can be triggered by something other

                                             10
than    actual      federal      custody       and     federal       arrest,    i.e.,     any

restraint resulting from federal action.”                            399 F.3d 590, 596

(4th Cir. 2005) (internal quotation marks omitted).                              Unlike in

Woolfolk,      however,        Harris    does       not   suggest     that     the   federal

government knew--or even should have known--that he was being

held    on    state      charges    prior      to    his     case    being     referred    to

federal authorities.            Nor has Harris produced any evidence of an

improper      motive      on    behalf      of      state     or     federal    officials.

Woolfolk       is     therefore         inapposite,          and,      consistent       with

MacDonald, we conclude that Harris’s speedy trial right did not

attach until the initiation of federal charges.

       The    ATF     filed     a   criminal         complaint       against    Harris     on

February 1, 2011.             Because Harris’s trial began on June 6, 2011,

the relevant period of delay is at most four months.                                 We have

previously      explained        that    the     first      Barker    factor--length       of

delay--“acts        as    a   threshold     requirement.”             United     States    v.

Grimmond, 137 F.3d 823, 827 (4th Cir. 1998); see also Barker,

407 U.S. at 530 (describing the first factor as a “triggering

mechanism”).        “If the delay is not uncommonly long, the inquiry

ends there.”          Grimmond, 137 F.3d at 827.                     Because we do not

consider a four-month delay between the filing of charges and

the initiation of trial uncommonly long--indeed, it falls well

short    of    the       one-year       period       that    courts     generally       deem

“presumptively prejudicial,” Doggett v. United States, 505 U.S.

                                               11
647, 652 n.1 (1992)--we need not consider the remaining Barker

factors.      See Barker, 407 U.S. at 530 (“Until there is some

delay which is presumptively prejudicial, there is no necessity

for inquiry into the other factors that go into the balance.”).

Given the brevity of the delay in this case, we conclude that

Harris’s right to a speedy trial was not violated.

                                        B.

      Next,   Harris       argues    that    the    district       court   erred   in

granting the government’s motion in limine to preclude him from

cross-examining the Baltimore police officers involved in his

arrest about their disciplinary records.                  We review the district

court's evidentiary rulings for abuse of discretion.                           United

States v. Hornsby, 666 F.3d 296, 307 (4th Cir. 2012).

      In   arguing     that    the     allegations        of     “brutality,    false

arrest, and excessive force” contained in the records should

have been a permissible subject for cross-examination, Harris

relies on Federal Rule of Evidence 608(b).                     Appellant’s Br. at

16.    That Rule permits the introduction of “specific instances

of    conduct”   on    cross-examination           only   if     such   evidence   is

“probative”      of   a    witness’s     “character        for     truthfulness    or

untruthfulness.”          Fed. R. Evid. 608(b).           In considering whether

the disciplinary records meet this criterion, we are mindful

that “the trial court has wide discretion to decide whether (and

to what extent)” cross-examination about specific instances of

                                        12
conduct “is proper and relevant.”                 United States v. Smith, 451

F.3d 209, 223 (4th Cir. 2006).

     Harris’s brief identifies five allegations contained in the

disciplinary       records        that    he    contends       should     have   been

permissible    fodder       for     cross-examination: 2        (1)     that   Officer

Smith, who conducted the drug buy, once “punched an arrestee in

the mouth and knocked out his tooth”; (2) that Officer Smith

made a “false arrest” by telling an arrestee that he would not

have been arrested had he not been with another suspect; (3)

that Detective Fried, one of the officers who arrested Harris,

“beat[]   up   a    prisoner”;      (4)    that     Detective    Fried     “plant[ed]

evidence on a suspect”; and (5) that Detective Choi, the other

officer who arrested Harris, once made a “false arrest” without

probable cause.      Appellant’s Br. at 16-17.

     Of   course,     not    every       instance    of   officer     misconduct    is

“probative”    of    an     officer’s      “character      for    truthfulness      or

untruthfulness.”       See Fed. R. Evid. 608(b).                 Rather, the Rule

authorizes inquiry only into instances of misconduct akin to

“perjury,      fraud,         swindling,            forgery,        bribery,       and

embezzlement[.]”      United States v. Leake, 642 F.2d 715, 718 (4th

Cir. 1981).    And other courts have rejected the notion that more

     2
       The disciplinary records themselves are not in the record
on appeal. Thus, we rely on the district court’s description of
them, which Harris has not disputed.



                                           13
general police misconduct, such as excessive force, falls within

the Rule’s scope.           See, e.g., United States v. Alston, 626 F.3d

397,    404     (8th     Cir.    2010)    (affirming         the    district     court’s

exclusion       of     findings    that     an      officer        “engaged     only   in

ridiculing or taunting a prisoner” due, in part, to the danger

of prejudice from introducing “sanctions completely unrelated to

the witness’[s] character for truthfulness”); United States v.

Seymour, 472 F.3d 969, 970 (7th Cir. 2007) (stating that an

officer’s      use     of   excessive    force      “was   not      probative    of    his

truthfulness”); United States v. Adams, Nos. 99-1563, 99-1596,

2000 WL 777970, at *2 (2d Cir. Jun. 15, 2000) (affirming the

district       court’s      exclusion     of      excessive        force     allegations

against an officer because they “were not sufficiently probative

of . . . truthfulness”).            Thus, with respect to the allegations

in     the    disciplinary        records        involving     only     brutality       or

excessive force, we agree with the district court that they were

simply not admissible under Rule 608(b).

       As for the allegations involving what Harris characterizes

as “false arrest[s]” and “planted evidence,” Appellant’s Br. at

16-17, the district court correctly observed that the records

include       only     “mere    accusations,”       rather       than      findings,    of

“misconduct based on untruthfulness.”                  Harris, 2011 WL 2413771,

at *6.        Mere accusations of prior misconduct inherently have

little probative value.            They are, after all, “both unproven and

                                            14
unconnected to th[e] [instant] case.”                 United States v. Custis,

988 F.2d 1355, 1359 (4th Cir. 1993).                   As such, they naturally

pose a risk of misleading the jury, given “the danger . . . that

a jury will infer more from the previous investigation than is

fairly inferable.”         Alston, 626 F.3d at 404.

      While allowing the government to respond to the accusations

or   to   introduce      contextual      evidence     might     curb   this    danger,

these accommodations would likely result in further confusion of

the issues or “the kind of mini-trial on a peripherally related

matter that [Rule 608(b)] is designed to prevent.”                     See id.; see

also Custis, 988 F.2d at 1360 & n.1 (noting the danger that a

trial might be “sidetracked by a mini-trial” on the veracity of

unproven    allegations        against     police    officers).        Exclusion     of

accusations of prior misconduct thus lies within the district

court’s    “wide    latitude       . . .    to   impose   reasonable       limits    on

. . . cross    examination         based    on   concerns     about,    among    other

things, harassment, prejudice, confusion of the issues . . . or

interrogation that is . . . only marginally relevant.”                        Delaware

v. Van Arsdall, 475 U.S. 673, 679 (1986).

      Here,   the       district    court    reasonably       concluded    that     the

accusations        in    the     disciplinary        records,      while       perhaps

potentially        relating        to      the      officers’      character        for

untruthfulness, had little probative value and posed a risk of

“sidetrack[ing]” the trial.             Harris, 2011 WL 2413771, at *6.             We

                                           15
therefore      hold    that        the    district        court    did     not       abuse   its

discretion      in    excluding          them    from     the     scope    of    permissible

cross-examination.

                                                C.

      Finally, Harris challenges the substantive reasonableness

of   his     sentence.        In     reviewing        a    sentence       for    substantive

reasonableness, we “examine[] the totality of the circumstances

to see whether the sentencing court abused its discretion in

concluding that the sentence it chose satisfied the standards

set forth in [18 U.S.C.] § 3553(a).”                        United States v. Mendoza-

Mendoza, 597 F.3d 212, 216 (4th Cir. 2010).                         Where, as here, the

sentence is within the properly calculated Guidelines range, we

apply a presumption of substantive reasonableness.                                   See United

States v. Johnson, 445 F.3d 339, 341 (4th Cir. 2006).

      In     arguing        that     his        sentence     was     not        substantively

reasonable, Harris identifies three mitigating factors that he

contends justified a reduced sentence.                          First, he argues that

application      of    the     career-offender              enhancement         was     “overly

punitive” because it added 189 months to his Guidelines range

based   on    convictions          for    crimes     he    committed       as    a    juvenile.

Appellant’s Br. at 20-21.                   Second, he points to his lack of

family support, noting that “his father was terribly abusive and

brutally      beat    him    as     a    child,”      and    that    his        brother      “was

murdered at a young age.”                Id. at 20.         Lastly, Harris notes that

                                                16
“the sale of $20.00 of cocaine is much less significant than the

crimes of major dealers selling large quantities of drugs,” and

argues that he “was not a big player in a significant drug

conspiracy.”       Id. at 21.

       We have thoroughly reviewed the record and conclude that

Harris’s      sentence   is     substantively           reasonable.     The       district

court heard and addressed each of Harris’s mitigation arguments,

and    clearly    explained        its    reasoning       for    imposing    a    within-

Guidelines       sentence     of    210    months.         With   reference        to   the

relevant § 3553(a) factors, the district court noted the serious

harm   that    drug    crimes      inflict    on    the    community,       the   violent

nature of Harris’s prior convictions, 3 and his multiple probation

violations.         Based     on    these    considerations,          and    given      the

presumption       of   reasonableness            that     attaches    to     a    within-

Guidelines      sentence,     we    find     no    abuse    of    discretion       in   the

district court’s imposition of a sentence at the low end of the

Guidelines range. 4


       3
       According to the district court, the facts underlying
Harris’s robbery conviction were that he “punched one victim in
the face and shot another in the arm and fired several more
shots at the victims as he fled.”    J.A. 2010.   The attempted
murder conviction rested on Harris having “shot a victim in a
leg, left arm, stomach, chest, and chin, as th[e] victim begged
for his life.” Id.
       4
       In a Rule 28(j) letter filed shortly before argument,
Harris noted that, contrary to the district court’s expectation,
a state court eventually sentenced him to seven years of “back-
(Continued)
                                            17
                                     III.

     For    the   reasons   above,   we     affirm   the   district   court’s

judgment.

                                                                      AFFIRMED




up” prison time due to his state probation violation. According
to Harris, this additional prison time further supports his
argument    that   his   federal    sentence  was   substantively
unreasonable.    We disagree.    Although the district court did
express skepticism that Maryland would require Harris to serve
additional prison time for the probation violation, the court
did not indicate that the sentence it imposed depended on that
assumption.    To the contrary, the court explicitly referred to
the possibility of state back-up time when providing its
rationale for applying the career-offender enhancement, noting
that any such time was a result of Harris’s “serious” prior
conviction. J.A. 1006. We do not believe this additional time,
attributable to the state conviction, renders Harris’s federal
sentence unreasonable.



                                      18
