[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 14

- 12094 Non

- Argument Calendar

________________________ D.C. Docket No. 4:12

- cr - 00006

- CDL

- MSH

- 1
UNITED STATES OF AMERICA, Plaintiff

- Appellee,
versus WILLIAM D. JONES, Defendant

- Appellant.

________________________ Appeal from the United States District Court for the Middle District of Georgia

________________________ (February 18, 2015) Before MARCUS , MARTIN and ANDERSON , Circuit Judg es. PER CURIAM:

Case: 14-12094 Date Filed: 02/18/2015 Page: 1 of 42 William Jones appeals his convictions for conspiracy to possess methamphetamine with intent to distribute, possession of a firearm by a convicted felon, and possession of methamphetamine with intent to distribute. On appeal , he argues that the district court erred by denying his motion to dismiss the indictment, because the delay before trial violated his right to due process and his right to a speedy trial under the Sixth Amendment. After careful review, we affirm. Whether the governm ent deprived a defendant of his constitutional right to a speedy trial is a mixed question of law and fact. United States v. Villarreal , 613 F.3d 1344, 1349 (11th Cir. 2010). We thus review the district court’s legal conclusions de novo and its factual f indings for clear error. Id
. We review a district court’s denial of a motion to dismiss an indictment for abuse of discretion. United States v. Wetherald , 636 F.3d 1315, 1320 (11th Cir. 2011). However, t he doctrine of invited error is implicated when a party induces or invites the district court into making an error. United States v. Brannan , 562 F.3d 1300, 1306 (11th Cir. 2009); United States v. Silvestri , 409 F.3d 1311, 1327 (11th Cir. 2005) (holding that invited error precludes reversing even under the plain error rule). A defendant can invite error by , for example, introducing otherwise inadmissible evidence at trial or by submitting an incorrect jury instruction to the district judge which is then given to the jury. United States v. Stone , 139 F. 3d 822, 838 (11th Cir. 1998) . “ Generally, an appellate court will not review an error invited by a

Case: 14-12094 Date Filed: 02/18/2015 Page: 2 of 43 defendant, on the rationale that the defendant should not benefit from introducing error at trial with the intention of creating grounds for reversal on app eal. ” Id
. First, we reject Jones’s argument that the district court erred by denying his claim that pre

- trial delay violated his right to a speedy trial under the Sixth Amendment. T he record reveals that Jones agreed with the district court at the pretria l hearing that he was not prejudiced by any post
- indictment delay , sin ce his speedy

- trial claim was based on the death of a witness who died before he was indicted
. In so doing, Jones confirm ed that his speedy

- trial claim only involved pre - indictment delay. However, “ [t] he speedy trial guarantee of the [S]ixth [A]mendment does not apply to pre[

- ]indictment delay.” United States v. Lindstrom , 698 F.2d 1154, 1157 (11th Cir. 1983). As this record shows, Jones invited the district court to n ot review his claim based on post

- indictment delay

-- the only delay protected by the Sixth Amendment . Because Jones invited this error, we will not review his Sixth Amendment claim on appeal. We are also unpersuaded by Jones’s argument that the distric t court erred by dismissing his claim that the delay before trial violated his right to due process
. The Due Process Clause of the Fifth Amendment requires dismissal of an indictment if the defendant can show that pre

- indictment delay (1) caused actual pr ejudice to the conduct of his defense, and (2) was the product of deliberate action by the government designed to gain a tactical advantage. United States v. LeQuire ,

Case: 14-12094 Date Filed: 02/18/2015 Page: 3 of 44 943 F.2d 1554, 1560 (11th Cir. 1991). Prejudice based on a loss of evidence requires tha t the loss impair the defendant’s ability to provide a meaningful defense. United States v. Solomon , 686 F.2d 863, 872 (11th Cir. 1982). The death of a witness may be enough to show actual prejudice if the defendant also shows that the lost evidence coul d not be obtained any other way. United States v. Corbin , 734 F.2d 643, 648 (11th Cir. 1984). In this case, Jones has not allege d that the government deliberately sought a tactical advantage by delaying the indictment. LeQuire , 943 F.2d at 1560. At most, Jones claims that the delay

-- combined with the prejudice to him caused by two witnesses not testifying due to the delay

-- gave the government a tactical advantage. However, simply gaining a tactical advantage is not enough. See id
. As we’ve sai d, t he tactical advantage must be the result of deliberate action by the government toward that end. Id . Because Jones has not demonstrated that the pre

indictment delay was the product of deliberate action by the government to achieve a tactical advanta ge, he is not entitled to relief. Id
. Therefore, we affirm the district court’s denial of Jones’s motion to dismiss the indictment. AFFIRMED
. Case: 14-12094 Date Filed: 02/18/2015 Page: 4 of 4