1

 The Honorable Linda R. Reade, Chief Judge, United States District Court for

the Northern District of Iowa.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 06-1785

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Northern District of Iowa.

Terrence K. Gladney, also known *

as D.J., *

*

Appellant. *

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Submitted: October 17, 2006

Filed: February 2, 2007

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Before WOLLMAN, RILEY, and GRUENDER, Circuit Judges. 

___________

RILEY, Circuit Judge.

Terrence Gladney (Gladney) was charged with conspiracy to distribute crack

cocaine and distribution of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1),

(b)(1)(B)-(C), and 846. After trial commenced, and just before closing arguments,

Gladney made an oral motion to dismiss the indictment, arguing the government’s

nineteen-month delay in bringing his federal indictment had resulted in a due process

violation. The district court1

 declined to address the motion at that time and directed
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Gladney to submit his motion in writing after trial. The jury convicted Gladney and,

thereafter, the district court denied his motion to dismiss the indictment. Gladney

appeals the district court’s denial of his motion to dismiss. In addition, Gladney

appeals the district court’s refusal to give an addict-informer jury instruction. For the

reasons stated below, we affirm.

I. BACKGROUND

On April 21, 2005, a grand jury returned a superseding indictment charging

Gladney and co-defendant Sylvester Watkins (Watkins) with conspiracy to distribute

crack cocaine and distribution of crack cocaine. At trial, John Saldivar (Saldivar), a

confidential informant, testified Gladney and Watkins were engaged in a partnership

to distribute crack cocaine in Cedar Rapids, Iowa. Saldivar testified Gladney sold him

crack cocaine on August 12, 2003, and on September 11, 2003.

With respect to the August 12, 2003 sale, Special Agent Josh Lupkes (Agent

Lupkes) and Investigator Anthony Robinson (Investigator Robinson), both with the

Drug Enforcement Administration’s Drug Task Force (DEA), testified Saldivar made

a phone call to arrange the purchase of one-half ounce of crack cocaine from Gladney.

Agent Lupkes and Investigator Robinson testified they searched Saldivar, provided

him with pre-serialized currency, and equipped Saldivar with a transmitting device.

Investigator Robinson testified Saldivar did not appear to be under the influence of

any illegal substances during this or any other encounter he had with Saldivar.

Saldivar then met Gladney and Watkins at a parking lot where Saldivar entered

their car. Saldivar testified once inside the car, Gladney and Watkins told him they

had already sold the one-half ounce of crack cocaine they promised Saldivar. Thus,

Gladney and Watkins sold Saldivar only one gram of crack cocaine for which Saldivar

paid Watkins $100. Saldivar testified Gladney and Watkins told him they were

leaving for Chicago to obtain more crack cocaine. Special Agent Greg Brugman

(Agent Brugman), also with the DEA, testified he heard the conversation regarding
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the trip to Chicago over the transmitting device as Agent Brugman was conducting

surveillance of the drug transaction.

After the drug transaction, Gladney and Watkins drove away and DEA agents

followed them for approximately twenty-five miles on Interstate 380 South. When

Gladney and Watkins drove onto Interstate 80 East, Johnson County (Iowa), Deputy

Chris Langenberg (Deputy Langenberg) stopped their vehicle. Investigator Robinson

testified he requested the traffic stop by Deputy Langenberg in order to identify

Gladney and Watkins.

During the traffic stop, Coralville, Iowa, Police Officer Maleah Droll (Officer

Droll) assisted Deputy Langenberg. Neither Deputy Langenberg nor Officer Droll

knew the details of the drug transaction, nor were they given the serial numbers of the

currency used in the drug transaction. Deputy Langenberg conducted a canine search

of the car, but did not find any drugs. Officer Droll testified the search was underway

when she arrived and that she did not participate in the search of the car. Officer

Droll, however, testified she conducted a pat-down for weapons on either Gladney or

Watkins, but she could not remember which one.

With respect to the September 11, 2003 drug transaction, Saldivar testified he

arranged to purchase one ounce of crack cocaine from Gladney. Saldivar placed a

recorded call to Gladney from the DEA office. Again, Agent Lupkes and Investigator

Robinson testified regarding the preparations for this drug transaction, i.e., searching

Saldivar, giving Saldivar pre-serialized currency, and fitting Saldivar with a

transmitting device.

For this drug transaction, Saldivar met Gladney in an alley where he entered a

car with Illinois plates driven by Gladney. Gladney drove around the block, stopped

the car, and handed Saldivar nineteen baggies of crack cocaine for which Saldivar

paid Gladney $1,000.
2

 The jury, however, was unable to reach a verdict with respect to a third count

charging Gladney with distribution of crack cocaine within 1,000 feet of a school.

This charge was dismissed.

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During trial, Gladney asserted an alibi defense with regard to the events of

September 11. Gladney called his girlfriend Shelneka Benton (Benton) to testify as

to Gladney’s whereabouts on that day. Benton testified Gladney was with her on the

afternoon of September 11, paying a security deposit at Park Place Apartments in

Portage, Indiana. Benton also testified that, after paying the security deposit, she and

Gladney went to his parents’ home.

Gladney also called Lori Smith (Smith), the manager of Park Place Apartments,

as a witness. Smith testified a security deposit receipt for the Benton and Gladney

apartment was written on September 11, 2003. The receipt was introduced into

evidence. Smith testified the Park Place Apartments are comprised of 216 units, some

of which have multiple tenants. Thus, Smith testified she did not know exactly who

paid the security deposit on September 11, nor did Smith’s paperwork indicate who

made the payment.

After the first day of trial, Gladney filed a proposed jury instruction regarding

the credibility of an addict-informer. The district court refused to use Gladney’s

proposed jury instruction in its final instructions. After two days of trial, and just

before the jury was to enter the courtroom to hear closing arguments, Gladney made

an oral motion to dismiss the indictment based upon pre-indictment delay. The

district court declined to address the motion, and directed Gladney to submit his

motion in writing after trial.

The jury convicted Gladney on the conspiracy and distribution charges,2

 and the

district court denied Gladney’s motion to dismiss the indictment. Gladney appeals the

district court’s denial of his motion to dismiss and the court’s rejection of his proposed

jury instruction regarding the credibility of an addict-informer. 
3

We assume, without deciding, as did Farmer, 312 F.3d at 936, a delay in filing

an indictment constitutes a defect in the indictment.

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II. DISCUSSION

A. Motion to Dismiss the Indictment

Gladney argues the district court erred in denying his motion to dismiss the

indictment based upon pre-indictment delay. We review the district court’s denial of

Gladney’s motion to dismiss for clear error. United States v. Haskell, 468 F.3d 1064,

1070 (8th Cir. 2006). The Fifth Amendment’s Due Process Clause protects a criminal

defendant against unreasonable pre-indictment delay. Id. To prove a violation of his

due process rights, Gladney must establish the delay resulted in actual and substantial

prejudice to the presentation of the defense and the government intentionally delayed

Gladney’s indictment either to gain a tactical advantage or to harass him. Id. The

court will inquire into the reasons for delay only where actual prejudice has been

established. United States v. Sturdy, 207 F.3d 448, 452 (8th Cir. 2000). To establish

actual prejudice, a defendant must identify witnesses or documents lost during the

delay period. Id. However, actual prejudice cannot be established by defendant’s

speculative or conclusory claims of possible prejudice as a result of the passage of

time. Id. The defendant carries the burden to show the lost testimony or information

is not available through other means. Id.

The government contends the district court did not err in denying Gladney’s

motion to dismiss because his motion was untimely. We agree. Gladney had

sufficient time to raise the pre-indictment delay issue earlier than he did. See United

States v. Farmer, 312 F.3d 933, 936 (8th Cir. 2002). In Farmer, we found the

defendant’s claim of pre-indictment delay3

 made after trial had commenced was

untimely; thus, we did not consider the merits of the claim. Id. Similarly, Gladney

did not object to the delay until immediately before closing arguments. Gladney

alleges he was unable to properly raise his motion earlier because he had to wait until

the last witness concluded her testimony. However, Gladney does not indicate with
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any degree of specificity what information or testimony prevented him from raising

the delay issue until just prior to closing arguments.

As an alternative explanation for his delay, Gladney states he became aware of

his alleged alibi witness, Smith, after the deadline for motions had passed; thus, he

was unable to make his motion earlier. However, the record indicates Gladney filed

motions to continue deadlines and, in fact, Gladney obtained a continuance based

upon the discovery of his alleged alibi a few days before trial. Gladney could have

raised the pre-indictment delay issue at that time or shortly thereafter. Gladney’s

argument that he had to wait until a few minutes before closing arguments, as his case

was going to the jury, in order to raise the pre-indictment delay issue is without merit.

However, even if Gladney’s delay could be considered timely, Gladney’s

motion still must be denied because he failed to establish any delay resulted in actual

and substantial prejudice to the presentation of his defense. As previously stated,

actual prejudice cannot be established by a defendant’s speculative or conclusory

claims of possible prejudice as a result of the passage of time. Sturdy, 207 F.3d at

452. Here, Gladney claims the passage of time prejudiced him because his witnesses

were not able to recall events. Specifically, Gladney claims Officer Droll (the second

officer who assisted in Gladney’s traffic stop) and Smith (his alleged alibi witness)

were unable to recall precisely their encounters with Gladney.

Gladney states the passage of time impaired Officer Droll’s ability to remember

whether she searched Gladney or found pre-serialized currency in Gladney’s

possession. However, Officer Droll testified that, although she could not remember

which defendant she questioned in her patrol car, Officer Droll only conducted a patdown for weapons, not a search. In addition, nothing in the record indicates Officer

Droll knew any specific details of the drug transaction that took place prior to

Gladney’s traffic stop nor did Officer Droll know the serial numbers of the currency

used in the drug transaction. Gladney’s claim regarding Officer Droll’s memory is

without merit.
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Gladney also states the passage of time impaired Smith’s ability to remember

who paid the security deposit on September 11, 2003. Gladney contends that, had the

indictment been filed timely, Smith could have remembered Gladney and Benton were

together when the deposit was paid. However, this claim is, at best, speculative and

conclusory. Smith testified she manages 216 units at Park Place Apartments and some

units have multiple tenants. To determine whether Smith would have been able to

recall exactly who appeared to pay the security deposit that day is speculative.

Gladney cannot establish actual prejudice based on such conjecture.

Furthermore, to establish prejudice, a defendant must show the missing

testimony was not available through other sources. Id. Gladney presented the

testimony of his girlfriend, Benton, who stated that on September 11, Gladney was

with her at Park Place Apartments paying the security deposit. Here, Gladney

presented the desired testimony through Benton, thus, actual prejudice cannot be

established. See id.

The district court did not commit clear error in denying Gladney’s motion to

dismiss for pre-indictment delay.

B. Addict-Informer Jury Instruction

Gladney also argues the district court erred in rejecting his proposed addictinformer jury instruction. We disagree. We review a district court’s rejection of a

defendant’s jury instruction for abuse of discretion. United States v. Davis, 237 F.3d

942, 945 (8th Cir. 2001).

This circuit has not adopted the rule that an addict-informer instruction must be

given if requested. The need for such an instruction depends on the circumstances of

each case. United States v. Dempewolf, 817 F.2d 1318, 1321 (8th Cir. 1987); see

United States v. Gardner, 139 F. App’x. 762, 765 (8th Cir. 2005) (per curiam)

(unpublished). The presence of any of the following factors may make an addict-
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informer instruction unnecessary: (1) a dispute as to whether the informant is actually

an addict, (2) cross-examination concerning the informant’s addiction, (3) an

instruction alerting the jury to view the informant’s testimony with care, and (4)

corroboration of the informant’s testimony. Dempewolf, 817 F.2d at 1321.

Here, nothing in the record indicates Saldivar used drugs during the dates in

question. In fact, Investigator Robinson testified Saldivar did not appear to be under

the influence of illegal drugs at the time the drug transactions occurred. In addition,

although Saldivar admitted to using cocaine “for like a day or two” while on probation

and tested positive for cocaine on September 16, 2003, Saldivar denied using drugs

on August 12 and September 11, 2003.

 

Furthermore, Gladney’s counsel cross-examined Saldivar about his drug use.

The district court told Gladney’s counsel he could ask the jury to consider Saldivar’s

alleged drug use when evaluating Saldivar’s memory. In addition, the district court

instructed the jury that Saldivar had a cooperation agreement with the government,

through which Saldivar received money and other benefits, and that Saldivar had prior

convictions, which the jury could consider in deciding whether to believe Saldivar.

Moreover, much of Saldivar’s testimony was reinforced by the testimony of other

government witnesses, namely, Agent Brugman, Agent Lupkes, and Investigator

Robinson.

Based on this evidence, we conclude the district court did not abuse its

discretion in refusing to give an addict-informer instruction.

III. CONCLUSION

Therefore, we affirm the judgment of the district court.

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