     Case: 18-31171      Document: 00515322147         Page: 1    Date Filed: 02/26/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit


                                    No. 18-31171
                                                                                 FILED
                                                                         February 26, 2020
                                  Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JOSHUA EDWARDS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                              USDC No. 6:17-CR-3-4


Before WIENER, HAYNES, and COSTA, Circuit Judges.
PER CURIAM: *
       Defendant-Appellant Joshua Edwards appeals his jury conviction on one
count of conspiracy to distribute and possess with intent to distribute 100
grams or more of heroin in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B), and
21 U.S.C. § 846. He contends that the district court erred in denying his
motion to dismiss the superseding indictment on grounds that his Sixth
Amendment right to a speedy trial had been violated.


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 18-31171

      The Sixth Amendment guarantees a defendant the right to a speedy
trial. Barker v. Wingo, 407 U.S. 514, 515 (1972). To determine whether this
right has been violated, a court must balance four factors: (1) the length of the
delay; (2) the reason for the delay; (3) the defendant’s assertion of his speedy
trial rights; and (4) the prejudice to the defendant resulting from the delay.
United States v. Molina-Solorio, 577 F.3d 300, 304 (5th Cir. 2009) (citing
Barker, 407 U.S. at 530). The determination involves a mixed question of law
and fact: We review the district court’s factual findings for clear error and its
application of the Barker test de novo. Id. at 303-04.
      The record reflects that Edwards was indicted on March 16, 2017, and
that his trial commenced approximately 16 months later, on July 30, 2018.
Although this delay was sufficient to trigger an examination of the remaining
Barker factors, see United States v. Serna-Villarreal, 352 F.3d 225, 230 (5th
Cir. 2003), it was not sufficient to create a presumption of prejudice or weigh
in Edwards’s favor, see United States v. Harris, 566 F.3d 422, 432 (5th Cir.
2009); see also United States v. Parker, 505 F.3d 323, 328-29 (5th Cir. 2007).
      Neither does the second Barker factor weigh in Edwards’s favor. The
record reflects that the case is complex and that Edwards acquiesced in much
of the post-indictment delay. Although the trial date was continued because of
his codefendant’s last-minute substitution of counsel, Edwards has pointed to
no evidence that the delay was the result of the Government’s negligence or
that the Government intentionally caused the delay to gain a tactical
advantage against him at trial.       See Serna-Villarreal, 352 F.3d at 232.
Nonetheless, because Edwards promptly asserted his right to a speedy trial
and sought to sever his case from that of his codefendant on learning that the
trial date would likely be continued, the third Barker factor does weigh in his
favor. See Harris, 566 F.3d at 432.



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                                  No. 18-31171

      Because only one of the first three Barker factors weighs in Edwards’s
favor, he had to prove actual prejudice sufficient to outweigh the other factors
to prevail on his motion to dismiss the superseding indictment. See United
States v. Bishop, 629 F.3d 462, 465 (5th Cir. 2010). Edwards’s assertion that
he suffered actual prejudice because he was detained for 451 days prior to the
commencement of his trial is insufficient to make this showing. See United
States v. Frye, 489 F.3d 201, 213 (5th Cir. 2007). There was therefore no Sixth
Amendment violation, and the district court did not err in denying Edwards’s
motion to dismiss the superseding indictment. See Parker, 505 F.3d at 330.
      Edwards also contends that the district court committed reversible plain
error by failing to instruct the jury on the elements of the conspiracy’s object
crimes. He argues that the error affected his substantial rights because his
theory of defense—that he was a user and buyer but not a seller of heroin—
raised questions as to the elements of the object crimes.
      The district court committed an error that was clear or obvious when it
failed to instruct the jury on the elements of the conspiracy’s object crimes. See
United States v. Vaglica, 720 F.2d 388, 391 (5th Cir. 1983). Nevertheless,
Edwards has not shown that this clear or obvious error amounted to reversible
plain error. See United States v. Piper, 912 F.3d 847, 860 (5th Cir.), cert.
denied, 139 S. Ct. 1639 (2019). The district court (1) explained that Edwards
was charged with conspiring to distribute and possess with intent to distribute
heroin and (2) gave the pattern jury instructions for a controlled substance
conspiracy and the definitions of “possession,” “knowingly,” and “willfully.”
The district court did not, however, instruct the jury as to the elements of
distribution and possession with intent to distribute, but the defense did not
raise questions as to the nature of the acts constituting these offenses or
whether Edwards’s codefendant and others were members of the charged



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                                  No. 18-31171

conspiracy. Rather, Edwards’s claim that he was a mere user and buyer of
heroin challenged whether he was a member of that conspiracy, i.e., whether
he willfully joined in the conspiracy with the intent to further its unlawful
purpose of distributing or possessing with intent to distribute heroin. The
district court correctly instructed the jury on these issues, see United States v.
Delgado, 672 F.3d 320, 333-34 (5th Cir. 2012) (en banc), and the record
contains ample evidence from which the jury could have inferred that Edwards
was a heroin dealer and willful member of a conspiracy to distribute or possess
with intent to distribute heroin. The district court’s judgment is AFFIRMED.




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