* This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. This court generally disfavors the

citation of orders and judgments; nevertheless, an order and judgment may be cited under

the terms and conditions of 10th Cir. R. 36.3.

UNITED STATES COURT OF APPEALS

Filed 6/12/96

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

TERRY L. PRIMM,

Defendant-Appellant.

No. 95-3279

(D.C. No. 95-CR-10023)

(District of Kansas)

ORDER AND JUDGMENT*

Before PORFILIO, HOLLOWAY, and MURPHY, Circuit Judges.

Terry L. Primm was convicted by a jury of possession of a firearm in violation of

18 U.S.C. §§ 922(g) and 924(a)(2) and of possession of heroin and cocaine in violation of

21 U.S.C. § 844. Mr. Primm raises two issues on appeal. First, he contends a

preindictment delay of more than two years and four months violated his Sixth

Amendment right to a speedy trial and deprived him of due process under the Fifth

Amendment. Second, he claims his Fourteenth Amendment due process rights were
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violated when, prior to trial, several items of evidence were destroyed. Because Mr.

Primm did not prove the delay caused him actual prejudice or the government

orchestrated the delay or the destruction of evidence in bad faith to gain a tactical

advantage, we affirm.

I.

The parties are well-acquainted with the facts. Therefore, we will not recapitulate

them here except to the extent necessary to support our analysis. On September 23, 1992,

a Deputy United States Marshal and officers from the Kansas Bureau of Investigation, the

Sedgwick County Sheriff’s Department, and the Wichita Police Department went to Mr.

Primm’s residence to arrest him on an outstanding state warrant for a parole violation. 

After entering the house, one of the officers noticed what appeared to be marijuana on a

table in plain view. The officers arrested Mr. Primm for his parole violation and obtained

a search warrant for the house based on their discovery of the marijuana. In their search

of one of the bedrooms, the officers found a loaded revolver under the bed mattress. 

They also found a pair of men’s jeans with a packet of brown powder in the pocket and a

woman’s blouse containing eleven “snow seal” packets of white powder. Finally, the

officers found personal items belonging to Mr. Primm in the bedroom, including four

prescription pill bottles, a phone bill, and a traffic ticket, indicating he stayed in the room.

The white powder field tested positive for cocaine and, after a lab test, the brown

substance was determined to be heroin. All of the evidence was photographed. The
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United States Marshals Service retained the photographs, the gun was turned over to the

Bureau of Alcohol, Tobacco, and Firearms, and the remaining items, including the jeans,

blouse, and contraband, were placed in the Wichita Police Department’s evidence room.

Although state authorities decided not to prosecute Mr. Primm for drug and gun

possession, federal authorities, after nearly two and a half years, filed an indictment on

February 9, 1995, charging him under 18 U.S.C. §§ 922(g), 924(a)(2), and 21 U.S.C.

§ 844. A few days before trial the parties discovered the evidence held in the Wichita

evidence room had been destroyed three months earlier. The Wichita Police

Department’s property and evidence division policy calls for the property clerk to

routinely purge unused evidence after two years to free up needed space. The

administrative detective verified no state charges were pending against Mr. Primm and

ordered the evidence destroyed.

The government proceeded to trial relying on the photographs, the firearm, the lab

test reports, and the testimony of the police chemist and the arresting officers. The jury

returned a guilty verdict on both counts. This appeal followed.

II.

Initially, Mr. Primm contends the preindictment delay violated his constitutional

right to a speedy trial guaranteed by the Sixth Amendment. He claims the constitutional

protection was triggered by his initial arrest on September 23, 1992, and the delay of
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more than twenty-eight months between arrest and indictment warrants dismissal. We

disagree.

The right to a speedy trial provided by the Sixth Amendment is not engaged until

either a formal indictment or information is brought against a defendant or else actual

restraints are imposed by arrest and holding to answer a criminal charge. United States v.

Marion, 404 U.S. 307, 320 (1971). In Marion, the Court acknowledged a defendant need

not await indictment, information, or other formal charges to invoke the speedy trial

provision. It may commence as soon as the defendant has been continuously held in

custody or on bail or otherwise held to answer for the crime ultimately charged. 

However, the Court specifically declined to extend the reach of the amendment “to the

period prior to arrest.” Id. at 321. Thus, even a lengthy preindictment delay is wholly

irrelevant to the issue of whether a defendant’s rights were violated under the Speedy

Trial Clause of the Sixth Amendment. United States v. Lovasco, 431 U.S. 783, 788

(1977).

Mr. Primm’s arrest on September 23, 1992, did not unleash the Sixth

Amendment’s speedy trial provision because his arrest was unrelated to the charges

ultimately brought against him for firearm and drug possession. On the contrary, he was

arrested on an outstanding warrant for a parole violation and remained in custody for

approximately two months before being released. Although the search of his residence

and subsequent discovery of the revolver and contraband occurred shortly after his arrest,
1Additionally, Mr. Primm’s arrest was in response to a Kansas state parole offense. 

“[A] defendant’s Sixth Amendment rights are not triggered by prior state arrest or

indictment.” United States v. Allen, 986 F.2d 1354, 1356 (10th Cir. 1993). See also

United States v. Mills, 964 F.2d 1186, 1189-90 (D.C. Cir.) (stating the “undisputed rule

that a state arrest does not trigger the Speedy Trial Act’s clock, even if the arrest is for

conduct that is the basis of a subsequent indictment for a federal offense.”), cert. denied,

506 U.S. 977 (1992). 

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he was not arrested for his possession of those items. In short, Mr. Primm was not

restrained or otherwise held to answer for the crimes at issue until he was indicted on

February 9, 1995. Accordingly, his Sixth Amendment argument must fail.1

III.

Mr. Primm also asserts the twenty-eight month preindictment delay was excessive

and deprived him of due process under the Fifth Amendment. His objection to the

preindictment delay was not raised before the district court. Consequently, our review is

limited to determining whether the delay constitutes plain error. United States v.

Williamson, 53 F.3d 1500, 1521 (10th Cir.), cert. denied, 116 S.Ct. 218 (1995).

The due process clause of the Fifth Amendment has only a “limited role to play in

protecting against oppressive delay.” Lovasco, 431 U.S. at 789. Legislatively enacted

statutes of limitations remain the primary guarantee against bringing overly stale criminal

charges. Id. We have held a preindictment delay is not a violation of the due process

clause absent a showing of actual prejudice resulting from the delay, and evidence the

delay was purposefully caused by the government to gain a tactical advantage or to harass
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the defendant. United States v. Engstrom, 965 F.2d 836, 839 (10th Cir. 1992); United

States v. Comosona, 848 F.2d 1110, 1113 (10th Cir. 1988). The burden of proof of

making this two-part showing lies squarely with the defendant. Engstrom, 965 F.2d at

839.

Mr. Primm fails to meet his burden of proof on both of the required components. 

First, he has failed to demonstrate any actual prejudice to his case resulting from the

delay. Mr. Primm’s allegations of prejudice never extend beyond the realm of

speculation. He suggests the drug evidence may have proven exculpatory if he had been

allowed an opportunity to perform his own independent tests on the substances. He

conjectures the jeans, used to suggest his ownership of the heroin, may not have fit him if

he had been allowed the chance to try them on in front of the jury. He alleges memory

loss prevented a witness from recalling details helpful to his case and kept him from

locating an additional witness who might have provided helpful testimony. However, Mr.

Primm fails to point to any specific prejudice the delay caused him in presenting his case.

Vague and conclusory allegations of prejudice resulting from the passage of

time and the absence of witnesses are insufficient to constitute a showing of

actual prejudice for the purposes of impermissible preindictment delay;

defendant must be able to show definite and not speculative prejudice, and

in what specific manner missing witnesses would have aided his defense.

United States v. Jenkins, 701 F.2d 850, 855 (10th Cir. 1983). 

Second, Mr. Primm fails to establish the preindictment delay was purposefully

caused by the government to gain a tactical advantage or to harass. In fact, he offers no
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explanation for the government’s decision to delay indictment. There is no evidence in

the record to suggest the government intentionally withheld its indictment of Mr. Primm

to gain any specific tactical advantage over him. In actuality, the decision to defer trial

until after Kansas authorities had independently destroyed much of the evidence

implicating Mr. Primm left the government at a distinct tactical disadvantage. Because

Mr. Primm’s argument is deficient in both aspects necessary to establish a due process

violation by preindictment delay, we conclude it does not rise to the level of constitutional

plain error and reject his claim.

IV.

Finally, Mr. Primm argues the destruction of exculpatory evidence by Kansas

authorities before trial was a violation of his due process rights under the Fourteenth

Amendment. He contends the destroyed contraband was exculpatory because an

independent test on the substances may have yielded negative results. He also claims the

pair of men’s jeans could have established a reasonable doubt as to his ownership of the

drugs if he had been able to demonstrate to the jury the pants did not fit him.

In Arizona v. Youngblood, 488 U.S. 51 (1988), the Supreme Court addressed

whether destruction of evidence by the prosecution amounts to a Fourteenth Amendment

due process violation. The Court first distinguished between “potentially useful”

evidence and “material exculpatory” evidence. Citing Brady v. Maryland, 373 U.S. 83

(1963), the Court explained good or bad faith by the State is irrelevant when the State
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fails to disclose to the defendant material exculpatory evidence. Youngblood, 488 U.S. at

57. In contrast, however, the Court held “unless a criminal defendant can show bad faith

on the part of the police, failure to preserve potentially useful evidence does not constitute

a denial of due process of law.” Id. at 58.

To establish whether evidence is material in the Brady sense, Mr. Primm must

show that “there is a reasonable probability that, had the evidence been disclosed to the

defense, the result of the proceeding would have been different.” United States v.

Pedraza, 27 F.3d 1515, 1527 (10th Cir.) (quoting United States v. Bagley, 473 U.S. 667,

682 (1985)), cert. denied, 115 S.Ct. 347 (1994). For example, if the seized substances

had not tested positive for heroin and cocaine, or even if the government had failed to test

the contraband before it was destroyed, it could be considered material exculpatory

evidence. However, the Kansas police conducted field tests on the cocaine, and the lab

tested both substances. The test results were conclusively positive for cocaine and heroin. 

The lab chemist who performed the tests testified at trial about the lab results and was

available for cross-examination. The original reports were admitted into evidence. The

destruction of the evidence merely prevented Mr. Primm from conducting his own

independent test on the substances. Thus, the usefulness of the drug evidence to the

defense was, at best, conjectural.

Similarly, the jeans were only potentially useful to Mr. Primm’s case without

providing a probable avenue for reversal. The photographs establish the size and
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condition of the clothing, and the jury concluded Mr. Primm was the likely owner of the

jeans. Whether a demonstration at trial would have proven otherwise is mere hypothesis.

Mr. Primm, therefore, must carry the burden of showing the Kansas police acted in

bad faith when they destroyed the evidence. Yet, the record provides absolutely no

evidence of foul play. Indeed, Mr. Primm’s counsel acknowledged an absence of bad

faith evidence when questioned on the subject at oral argument. We are left with no

indication the officers were aware of the joint federal investigation, or purged the

evidence for any reason other than to free up storage space.

To rule in favor of Mr. Primm, we would have to presume the Kansas police

destroyed the evidence in bad faith to benefit the government’s case. “The mere fact that

the government controlled the evidence and failed to preserve it is by itself insufficient to

establish bad faith.” United States v. Richard, 969 F.2d 849, 853-54 (10th Cir.), cert.

denied, 506 U.S. 887 (1992). The district court properly determined the evidence was not

destroyed intentionally to prejudice Mr. Primm’s defense at trial.

AFFIRMED.

ENTERED FOR THE COURT

John C. Porfilio

Circuit Judge
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