United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 05-3425

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United States of America, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the 

* District of Nebraska.

Gerald Jackson, *

*

Appellee. *

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Submitted: March 14, 2006

Filed: May 8, 2006

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Before WOLLMAN, FAGG, and RILEY, Circuit Judges.

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WOLLMAN, Circuit Judge.

The government appeals the district court’s dismissal, based on unreasonable

pre-indictment delay, of an indictment against Gerald Jackson. We reverse and

remand for trial.

I.

In July and August of 2001, the Nebraska State Patrol, the United States Postal

Investigation Service, the Federal Bureau of Investigation (FBI), and the Douglas

County Sheriff’s Office were engaged in an on-line enticement investigation involving

Jackson. During that period, Jackson is alleged to have engaged in sexually
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suggestive on-line chats with an agent of the Postal Investigation Service who was

using the identity of “k8tee4fun.” The agent, an adult male, represented to Jackson

that he was a 14-year-old girl.

On August 14, 2001, law enforcement officers observed Jackson travel to a park

in Omaha, Nebraska, where he was to meet “k8tee4fun.” Jackson did not stop at the

park. Instead, he returned home, where he was arrested by state officials. The FBI

seized Jackson’s computer, and Jackson spent one night in the Douglas County jail.

On August 15, 2001, Jackson was charged in Nebraska state court with conspiracy to

commit sexual assault. The state charges were dismissed on February 11, 2002, on

the ground that, under Nebraska state law, a defendant cannot conspire with an

undercover government agent. Although Jackson’s counsel requested the return of

Jackson’s computer on April 25, 2002, the FBI retained custody of the computer and

indicated to Jackson that a federal investigation was ongoing. The record does not

reflect any further investigation.

On November 3, 2003, the Nebraska State Patrol presented Jackson’s case,

along with a number of similar cases, to the United States Attorney’s Office. The case

was first assigned to an assistant United States attorney who had never handled an online enticement case and who was planning to retire within the year. As part of his

pre-retirement case processing, this prosecutor assigned a low priority to Jackson’s

case, with the result that no federal charges were filed during the remainder of his tour

of duty, which ended on October 1, 2004. On September 28, 2004, Jackson’s case

was reassigned to another prosecutor. On February 24, 2005, Jackson was indicted

for using a computer to knowingly attempt to persuade, induce, and entice a minor to

engage in sexual activity in violation of 18 U.S.C. § 2422(b). Jackson subsequently

filed a motion to dismiss, arguing that the pre-indictment delay violated his Fifth and

Sixth Amendment rights.
1

Although Jackson was arrested by state officials on August 15, 2001, he was

released from custody and the state charges were subsequently dismissed. He does

not claim that his Sixth Amendment speedy trial right attached at the time of that

arrest.

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A magistrate judge recommended that the indictment be dismissed as a

violation of Jackson’s Sixth Amendment speedy trial rights. The district court,

recognizing that the Sixth Amendment is inapplicable to pre-indictment delay cases,

proceeded to dismiss the indictment on Fifth Amendment due process grounds,

relying largely on Sixth Amendment speedy trial precedents. 

II.

Two provisions of the United States Constitution guard criminal defendants

against unreasonable pre-trial delay. First, the Sixth Amendment provides a right to

a speedy trial in all criminal prosecutions, a protection that attaches to the earlier of

arrest or indictment.1

 United States v. Sprouts, 282 F.3d 1037, 1042 (8th Cir. 2002).

Sixth Amendment speedy trial issues are analyzed using the four-factor balancing test

established in Barker v. Wingo, 407 U.S. 514 (1972). This test requires the court to

consider the length of the delay, the reason for the delay, the defendant’s assertion of

his right, and prejudice to the defendant. Sprouts, 282 F.3d at 1042.

Second, while statutes of limitations provide the primary guarantee against

delay prior to indictment or arrest, the due process clause of the Fifth Amendment

does play a limited role in protecting against oppressive delay. United States v.

Brockman, 183 F.3d 891, 895 (8th Cir. 1999). The Supreme Court has recognized

that “the interests of the suspect and society are better served if, absent bad faith or

extreme prejudice to the defendant, the prosecutor is allowed sufficient time to weigh

and sift evidence to ensure that an indictment is well founded.” United States v. Eight

Thousand Eight Hundred and Fifty Dollars ($8,850), 461 U.S. 555, 563 (1983). As

a result, a defendant must overcome a high hurdle when contending that a pre-
2

We note that the Supreme Court has suggested in dicta that the state-of-mind

prong might be satisfied if the government delay was “in reckless disregard of its

probable prejudicial impact upon the defendant’s ability to defend against the

charges.” $8,850, 461 U.S. at 563.

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indictment delay that does not violate the statute of limitations is violative of the due

process clause. 

In contrast to the balancing test used in Sixth Amendment cases, defendants

claiming a due process violation for pre-indictment delay must carry the burden of

proof on two separate elements. The defendant 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.2

 United States v. Sturdy, 207 F.3d 448, 452 (8th Cir. 2000); see also

United States v. Grap, 368 F.3d 824, 829 (8th Cir. 2004); Sprouts, 282 F.3d at 1041.

With all due respect, we conclude that the district court did not adequately

distinguish between the standards for evaluating these two different types of

unreasonable delay claims. Both the district court and Jackson rely on $8,850 and

United States v. Valenzuela-Bernal, 458 U.S. 858 (1982), for the proposition that the

standard governing a Fifth Amendment pre-indictment delay claim is essentially the

same as that for a Sixth Amendment speedy trial claim. See, e.g., D. Ct. Order at 4

(citing $8,550 for the proposition that “[t]he four-factor balancing test of Barker v.

Wingo provides ‘the relevant framework’ to determine whether a delay is reasonable

in the due process context”); id. at 5 (citing Valenzuela-Bernal in support of the

proposition that “[t]he same prejudice requirement is applicable to cases of pre- and

post-indictment delay”). Our reading of both $8,850 and Valenzuela-Bernal leads us

to a different conclusion.

$8,850 did not involve a criminal indictment. In that case, the Supreme Court

examined whether an eighteen-month delay between the seizure of currency and the
3

United States v. Lovasco, 431 U.S. 783 (1977), is a seminal case defining the

Fifth Amendment due process test applicable in cases of pre-indictment delay.

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filing of a civil proceeding for forfeiture violated the claimant’s due process rights.

461 U.S. at 556. There was disagreement over which standard to apply in that

situation. The government argued that “the standard for assessing the timeliness of

the suit [should] be the same as that employed for due process challenges to delay in

instituting criminal prosecutions.” Id. at 563. The Court rejected this argument:

We reject the Government's suggestion that Lovasco3

 provides the

appropriate test for determining whether the delay violates the due

process command. . . .

A more apt analogy is to a defendant's right to a speedy trial once an

indictment or other formal process has issued. In that situation, the

defendant no longer retains his complete liberty. . . . In Barker v. Wingo,

we developed a test to determine when Government delay has abridged

the right to a speedy trial. The Barker test involves a weighing of four

factors: length of delay, the reason for the delay, the defendant's

assertion of his right, and prejudice to the defendant.

Id. at 563-64 (internal citations omitted). 

Although the district court and Jackson are technically correct in saying that

$8,850 involved due process considerations, the Supreme Court distinguished between

criminal cases and civil forfeiture cases and indicated that the Lovasco test and the

four-factor Barker v. Wingo balancing test constitute distinct legal standards. $8,850

is thus not supportive of the assertion that the Barker v. Wingo test is applicable in

pre-indictment delay cases.

Similarly, Valenzuela-Bernal did not involve a case of pre-indictment criminal

delay. That case involved a claim of prejudice by a criminal defendant convicted of

transporting illegal aliens, who claimed that some favorable witnesses to his defense
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had been deported. The defendant argued that this action had deprived him of his

Fifth Amendment due process rights and his Sixth Amendment right to compulsory

process. 458 U.S. at 861. In addressing whether the loss of these witnesses had

materially compromised the defendant’s defense, the Court discussed its precedents

evaluating prejudice in both the Fifth Amendment pre-indictment delay and Sixth

Amendment speedy trial contexts. In the pre-indictment delay context, the Court

recognized that “when the Government has been responsible for delay resulting in a

loss of evidence to the accused, we have recognized a constitutional violation only

when loss of the evidence prejudiced the defense.” Id. at 868.

After some further discussion of the Fifth Amendment pre-indictment delay

prejudice requirement, the Court went on to state, “The same ‘prejudice’ requirement

has been applied to cases of postindictment delay.” Id. at 869. Jackson relies on this

sentence to support the argument that his anxiety is relevant to the Fifth Amendment

pre-indictment delay inquiry. This sentence, however, does not bear the weight that

Jackson’s argument places upon it, for the Court did not say that the prejudice inquiry

is identical in both the pre-indictment delay and speedy trial contexts. Jackson would

have us to conclude that the Supreme Court, in a case involving no unreasonable preindictment delay, adopted a standard in those cases that recognized a type of prejudice

that had never previously been considered relevant to the finding of a constitutional

violation. We decline to read that much into the Court’s holding in ValenzuelaBernal. 

III.

We turn next to determine whether Jackson has made a sufficient showing of

actual prejudice resulting from the pre-indictment delay, a burden that is his to bear.

United States v. Bartlett, 794 F.2d 1285, 1289 (8th Cir. 1986). To satisfy this burden,

the defendant must identify specific witnesses or documents lost during the delay and

the information they would have provided. United States v. McDougall, 133 F.3d
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1110, 1113 (8th Cir. 1998). Further, the defendant must show that the missing

testimony or information is not available through other sources. Bartlett, 794 F.2d at

1290. Alleged prejudice is insufficient to establish a due process violation if it is

insubstantial, speculative, or premature. Grap, 368 F.3d at 829.

The prejudice alleged here does not rise to the level required to establish a due

process claim. Jackson makes only three claims of possible prejudice: (1) the possible

automatic deletion of files from Jackson’s computer, to which he has been denied

access; (2) the diminishment of the memory of the officers involved; and (3)

emotional, financial, and social discomfort to Jackson during the period he was

awaiting indictment. 

Jackson, however, did not show with specificity any particular exculpatory

computer file that may have been destroyed or any specific witness who had forgotten

some important detail. Jackson’s argument before the magistrate judge is illustrative

of the speculative and conclusory nature of his claims of prejudice to his defense:

Now, it is extremely hard to show specific prejudice if you have a

witness who can’t be found, you have a witness that can’t remember or

for whatever reasons. . . . [I]t is difficult to show other than we have a

long period of time.

. . . .

Now, the main reason I think for prejudice . . . is that even though you

do not have evidence of specific prejudice, it is basically presumed over

time.

Motion Tr at 13-14. At oral argument, Jackson’s counsel conceded that the record

does not contain any evidence showing specific prejudice due to faded memories or

lost computer files.
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Jackson attempts to remedy this deficiency by relying on Doggett v. United

States, 505 U.S. 647 (1992), for the proposition that “Jackson is entitled to

‘presumptive prejudice’ due to the length of delay in his case.” Jackson Br. at 13.

Doggett, however, dealt with the presumption of prejudice in cases of post-accusation

delay, which implicate the Sixth Amendment speedy trial right, 505 U.S. at 652 n.1,

a presumption that is not recognized in the Fifth Amendment due process analysis

applicable here, see, e.g., Bartlett, 794 F.2d at 1290. Jackson’s speculative claims

about possible lost computer files and possibly weakened memories of witnesses are

not sufficient to meet the requirement of actual and substantial prejudice established

by our prior Fifth Amendment cases. This is especially the case in a prosecution such

as this one, where nearly all of the evidence of the actual crime alleged has been

memorialized in transcripts of the on-line chats between Jackson and the undercover

agent.

Jackson’s asserted emotional, financial, and social distress similarly fails to

support a claim of actual and substantial prejudice to the presentation of his defense.

The district court and Jackson both rely on Moore v. Arizona, 414 U.S. 25 (1973), for

the proposition that the prejudice inquiry is not limited to impairments of the

defendant’s ability to present an effective defense. Moore, like Doggett, was a Sixth

Amendment case involving post-charge delay. Id. at 25. Our Fifth Amendment preindictment delay cases, on the other hand, have consistently limited the prejudice

inquiry to the effects of the delay on the defendant’s ability to present an effective

defense. Bartlett, 794 F.2d at 1290; see also Grap, 368 F.3d at 829; Sprouts, 282 F.3d

at 1041; Sturdy, 207 F.3d at 452; McDougall, 133 F.3d at 1113.

Our holding should not be construed as our approval of the government’s

handling of this case. Nor should it in any way be construed as encouraging the

government to “gamble with the interests of criminal suspects assigned a low

prosecutorial priority.” Doggett, 505 U.S. at 657. The government here failed the

public’s interest in the timely prosecution of a serious criminal offense, one that
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Congress created to protect children from on-line sexual predators. Notwithstanding

these concerns, we conclude that Jackson has failed to establish a constitutional

violation based on pre-indictment delay, and thus the district court erred in granting

the motion to dismiss the indictment.

The judgment of dismissal is reversed, and the case is remanded for trial.

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