The Honorable William L. Hungate, United States District

1

Judge for the Eastern District of Missouri.

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No. 95-2232

___________

United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Missouri.

William Hawkins, *

*

Appellant. *

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 Submitted: December 12, 1995

 Filed: March 5, 1996

___________

Before FAGG, HEANEY, and WOLLMAN, Circuit Judges.

___________

WOLLMAN, Circuit Judge.

After a jury found William Hawkins guilty of five counts of cocaine

distribution in violation of 21 U.S.C. § 841(a), the district court1

sentenced him to 63 months' imprisonment on each count, to be served

concurrently, and four years' supervised release. Hawkins appeals his

conviction and sentence. We affirm.

I.

 In 1988, Ted McKinney became an informant for the Federal Bureau of

Investigation (FBI) after being confronted with evidence of his criminal

activity. With McKinney's help, the FBI conducted an investigation

targeting approximately fifteen individuals. One of the targets of the FBI

investigation was William Hawkins, an old friend of McKinney's.
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In November 1988, McKinney and Hawkins had several telephone

conversations concerning cocaine. Hawkins sold cocaine to McKinney on five

occasions from November 1988 to August 1989. During this time, McKinney

introduced undercover FBI Agent John Quinn to Hawkins. Quinn was present

during one of the drug transactions. The telephone calls and meetings

between McKinney and Hawkins were audio recorded. Some of the meetings

were also recorded on videotape.

Hawkins did not dispute that he had sold cocaine to McKinney and

Quinn, resting instead on the defense that the government had entrapped

him. The jury found Hawkins guilty on all five counts, and the district

court sentenced him on March 15, 1991. On March 25, 1991, Hawkins's trial

counsel filed a notice of appeal. For reasons that are not entirely clear,

the appeal was not processed by the clerk's office until May 18, 1995.

Hawkins raises several issues on appeal. First, he contends that his due

process rights were violated due to the delay in processing his appeal.

He also alleges violations of Brady v. Maryland, 373 U.S. 83 (1963), and

the Jencks Act, 18 U.S.C. § 3500, and brings an ineffective assistance of

counsel claim. Finally, he claims that the district court erred in denying

him a sentence reduction for acceptance of responsibility.

II. Due Process Claim

Although the Supreme Court has never explicitly acknowledged a due

process right to a speedy appeal, a number of courts of appeals have

recognized that excessive delay in processing appeals can violate due

process. See, e.g., Simmons v. Beyer, 44 F.3d 1160, 1169 (3rd Cir. 1995);

United States v. Tucker, 8 F.3d 673, 676 (9th Cir. 1993) (en banc), cert.

denied, 114 S. Ct. 1230 (1994); Harris v. Champion, 15 F.3d 1538, 1558

(10th Cir. 1994); Cody v. Henderson, 936 F.2d 715, 719 (2nd Cir. 1991).

In evaluating appellate delay claims, courts follow the test set out
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in Barker v. Wingo, 407 U.S. 514, 530 (1972), to determine whether due

process was satisfied. Although the issue in Barker was whether the

defendant was denied his right to a speedy trial, courts find the criteria

set out in that case generally applicable. The factors to consider are:

(1) length of delay; (2) reason for delay; (3) defendant's assertion of his

right; and (4) prejudice to the defendant. Id.

Applying the first factor, we agree with Hawkins that the four-year

delay was lengthy. Not every inordinate delay in processing an appeal,

however, amounts to a denial of due process. Rheuark v. Shaw, 628 F.2d

297, 303 (5th Cir. 1980), cert. denied, 450 U.S. 931 (1981). As to the

second factor, the reason for delay is not entirely clear from the record

below. Apparently, the clerk's office misplaced the appeal and did not

locate it until Hawkins made an inquiry, so Hawkins clearly was not to

blame for the delay. As to the third factor, Hawkins did ultimately pursue

appellate review, although he did not inquire about the status of his

appeal until more than two years had elapsed since it was filed. Although

the first three factors weigh in Hawkins's favor, he must also show

prejudice from the delay to establish a due process violation. See Tucker,

8 F.3d at 676.

With respect to the fourth factor, courts have established three

categories of potential prejudice resulting from appellate delay: "(1)

oppressive incarceration pending appeal, (2) anxiety and concern of the

convicted party awaiting the outcome of the appeal, and (3) impairment of

the convicted person's grounds for appeal or of the viability of his

defense in case of retrial." Tucker, 8 F.3d at 676 (citation omitted).

See also Simmons, 44 F.3d at 1170. 

Hawkins cannot show that his incarceration was oppressive if he was

rightfully incarcerated. Thus, we must turn to the merits of his appeal.

We find them to be meritless.
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Hawkins first alleges that the government failed to provide him with

discoverable material pursuant to Brady and the Jencks Act. He claims that

during the last day of trial he received materials from a case pending

against him in the Southern District of Illinois that supported his

entrapment defense and provided impeaching information against McKinney.

Hawkins failed to make these materials part of the record.

Under Brady, the government is required to "make available to a

criminal defendant exculpatory evidence in its possession material to guilt

or punishment." United States v. Stuart, 923 F.2d 607, 612 (8th Cir.),

cert. denied, 499 U.S. 967 (1991). Hawkins attempts to hold the Missouri

prosecutor accountable for information possessed by the Illinois prosecutor

under the theory that all of the information was held by the government and

therefore subject to Brady. This assumption is erroneous. We have held

that "the government has no affirmative obligation to discover potentially

exculpatory information which it neither possessed nor of which it was

aware." United States v. Dunn, 851 F.2d 1099, 1101 (8th Cir. 1988). At

Hawkins's sentencing hearing, the prosecutor told the court that he was not

aware of the discovery materials in the Illinois case. In any event, the

"prosecutor has no duty to undertake a fishing expedition in other

jurisdictions in an effort to find impeaching evidence." United States v.

Jones, 34 F.3d 596, 599 (8th Cir. 1994) (citing Stuart, 923 F.2d at 612),

cert. denied, 115 S. Ct. 1701 (1995).

Hawkins also alleges that his counsel was ineffective because he

failed to: (1) perfect the appeal; (2) call McKinney as a witness in the

defense case-in-chief; (3) establish on the record the content of the

materials received from the Illinois case; (4) move for a mistrial or

continuance as a result of the belated discovery; and (5) properly

interview a defense witness. The government objects to our consideration

of this claim and argues that it should be raised in a collateral

proceeding pursuant to 28
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U.S.C. § 2255. 

An ineffective assistance of counsel claim is ordinarily first raised

in a collateral proceeding because facts outside the record generally need

to be developed to resolve the claim. United States v. Lewin, 900 F.2d

145, 149 (8th Cir. 1990). Accordingly, we have declined to "`consider an

ineffective assistance claim on direct appeal if the claim has not been

presented to the district court so that a proper factual record can be

made.'" United States v. Logan, 49 F.3d 352, 361 (8th Cir. 1995) (quoting

United States v. Kenyon, 7 F.3d 783, 785 (8th Cir. 1993)). In Logan, we

declined to address an ineffective assistance claim on direct appeal

despite the defendant's contention that no factual findings needed to be

made by the district court. Id. at 361. In that case, we stated that

"[i]f either the district court had addressed this issue or the government

did not object to our hearing this issue, we would address it. However,

since neither of these conditions are satisfied, we decline to consider

this issue on direct appeal." Id. We find the present case analogous to

Logan, and thus we decline to address the effective assistance claim, which

Hawkins may raise in a section 2255 proceeding if he so desires.

Regarding the second category of potential prejudice, Hawkins has not

shown that his anxiety and concern are greater than any other prisoner

pending the outcome of an appeal. See Tucker, 8 F.3d at 676. In assessing

the third category, Hawkins shows no impairment of his grounds for appeal

because the appeal itself fails on the merits. See id. at 675 (stating

that "[o]rdinarily, where the claims asserted on appeal would not entitle

the defendant to reversal, appellate delay does not result in prejudice").

See also United States v. Hasting, 461 U.S. 499, 506 (1983). In other

words, even if Hawkins's appeal had been decided in a timely fashion, he

still would have failed on the merits. Thus, Hawkins's due process rights

were not violated, for he has failed to show prejudice. 
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III. Acceptance of Responsibility

Hawkins also contends that the district court erred in refusing to

reduce his base offense level for acceptance of responsibility under

U.S.S.G. § 3E1.1. The Sentencing Guidelines permit a two-level reduction

in the base offense level if a defendant "clearly demonstrates acceptance

of responsibility for his offense." U.S.S.G. § 3E1.1(a). The

determination "`whether a defendant has accepted responsibility is a

factual one, depending largely on credibility assessments by the sentencing

judge, who can far better evaluate the defendant's acceptance of

responsibility than can a reviewing court.'" United States v. Grimes, 899

F.2d 731, 732 (8th Cir.) (quoting United States v. Evidente, 894 F.2d 1000,

1002 (8th Cir. 1990)), cert. denied, 498 U.S. 986 (1990). We review for

clear error a district court's findings of fact in determining a reduction

for acceptance of responsibility. United States v. Laird, 948 F.2d 444,

446-47 (8th Cir. 1991). 

Hawkins argues that he is entitled to the reduction because he

admitted the substantive offense. Voluntarily admitting involvement in the

offense charged, however, does not automatically entitle a defendant to a

reduction for acceptance of responsibility. United States v. Davila, 964

F.2d 778, 784 (8th Cir. 1992). 

The Presentence Investigation Report (PSR) did not recommend an

acceptance-of-responsibility reduction because Hawkins did not cooperate

with the government investigation and because he did not voluntarily

withdraw from criminal conduct. Relying on the PSR, the district court

made a specific finding that Hawkins had not cooperated with the

government. Because the district court is in a unique position to evaluate

a defendant's credibility, its decision should not be disturbed unless it

is without foundation. Grimes, 899 F.2d at 732. We cannot say that there

was no foundation for the district court's denial of a reduction for
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acceptance of responsibility in this case.

The judgment and sentence are affirmed.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.