### The Honorable William L. Hungate, United States Distric t 1 

### Judge for the Eastern District of Missouri. ___________ 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. *

___________ Submitted: December 12, 1995 Filed: March 5, 1996

___________ Before FAGG, HEANEY, and WOLLMAN, Circuit Judges.

___________ WOLLMAN, Circuit Judge.
After a j ury found William Hawkins guilty of five counts of cocaine distr ibution in violation of 21 U.S.C. § 841(a), the district court 1 sent enced him to 63 months' imprisonment on each count, to be serve d
concur rently, and four years' supervised release. Hawkins appeals hi s conviction and sentence. We affirm.

I.
In 1988, Ted McKinney became an inf ormant for the Federal Bureau of Investigation (FBI) after being confronted with evidence of his criminal activi ty. With McKinney's help, the FBI conducted an investigatio n targeting approximately fifteen individuals. One of the targets of the FB I investigation was William Hawkins, an old friend of McKinney's.

### -2- In N ovember 1988, McKinney and Hawkins had several telephon e conversations concerning cocaine. Hawkins sold cocaine to McKinney on fiv e occasions from November 1988 to August 1989. During this time, McKinney introduced undercover FBI Agent John Quinn to Hawkins. Quinn was present durin g one of the drug transactions. The telephone calls and meeting s between McKinney and Hawkins were audio recorded. Some of the meeting s were also recorded on videotape.

Hawkin s did not dispute that he had sold cocaine to McKinney an d Qui nn, resting instead on the defense that the government had entrappe d 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 severa l 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 denyin g him a sentence reduction for acceptance of responsibility.

II. Due Process Claim

Although the Supreme Court has never explicitly acknowledged a du e proces s right to a speedy appeal, a number of courts of appeals hav e recogn ized that excessive delay in processing appeals can violate du e process. See , e.g. , Simmons v. Beyer , 44 F.3d 1 160, 1169 (3rd Cir. 1995); United States v. Tuck er , 8 F.3d 673, 676 (9th Cir. 1993) (en banc), cert. denied , 114 S. Ct. 1230 (1994); Harris v. Champion , 15 F.3d 1538, 155 8 (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 du e proc ess was satisfied. Although the issue in Barker was whether th e 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 hi s 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.2 d 297, 303 (5th Cir. 1980), cert. denied , 450 U.S. 931 (1981). As to th e second factor, the re ason for delay is not entirely clear from the record below. Apparently, the clerk's office misplaced the appeal and did no t locate it until Hawkins made an inquiry, so Hawkins clearly was not t o blame for the delay. As to the third factor, Hawkins did ultimately pursu e appellate review, although he did not inquire about the status of hi s appeal until more than two years had elapsed sin ce it was filed. Although the first three factors weigh in Hawkins's favor, he must also sho w 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 thre e catego ries of potential prejudice resulting from appellate delay: "(1 ) oppres sive incarceration pending appeal, (2) anxiety and concern of th e convicted party await ing the outcome of the appeal, and (3) impairment of the convicted person's grounds for appeal or of the viability of hi s defense i n case of retrial." Tucker , 8 F.3d at 676 (citation omitted)

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

Hawkins c annot show that his incarceration was oppressive if he was rightfully incarcerat ed. Thus, we must turn to the merits of his appeal. We find them to be meritless.

### -4- Hawkins first alleges that the gover nment failed to provide him with discoverable material pursuant to Brady and the Jencks Act. He claims tha t during the last day of trial he received materials from a case pendin g against him in the Southern District of Illinois that supported hi s entrapment defense and provided impeaching information against McKinney. Hawkins failed to make these materials part of the record.

Under Bra dy , the government is required to "make available to a criminal defendant exculpatory evidence in its possession material to guil t
or punish ment." 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 prosecuto r under the theory that all of the information was held by the government an d therefore subject to Brady . This assumption is erroneous. We have held that "the government has no affirmative obligati on to discover potentially exculpatory information which it neither possessed nor of which it wa s 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 no t aware of the discover y materials in the Illinois case. In any event, the "prosecu tor has no duty to undertake a fishing expedition in othe r jurisdictions in an effort to find impeaching ev idence." United States v. Jones , 34 F.3d 596, 5 99 (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 h e failed to: (1) perfe ct the appeal; (2) call McKinney as a witness in the defense case-in-chief; (3) establish on the record the content of th e materials received from the Illinois case; (4) move for a mistrial o r continua nce as a result of the belated discovery; and (5) properl y interview a defense w itness. The government objects to our consideration of this claim and argues that it should be raised in a collatera l 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 d eveloped to resolve the claim. United States v. Lewin , 900 F.2 d 145, 149 (8th Cir. 19 90). Accordingly, we have declined to "`consider an ineffective assistance claim on direct appeal if the claim has not bee n presented to the district court so that a proper factual record can b e made.'" United States v. Logan , 49 F.3d 352, 36 1 (8th Cir. 1995) (quoting United States v. Kenyon , 7 F.3d 783, 785 (8th Cir. 1993)). In Logan , we declin ed to address an ineffective assistance claim on direct appea l 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 tha t "[i]f either the district court had addressed th is issue or the government did not object to our hearing this issue, we would address it. However, sin ce neither of these conditions are satisfied, we decline to conside r this issue on direct appeal." Id. We find the present case analogous to Logan , and thus we decline to address the effective assistance claim, whic h Hawkins may raise in a section 2255 proceeding if he so desires.
Regarding the second category of potential prejudice, Hawkins h as not shown that his anxiety and concern are greater than any other prisone r pending the outcome of an appeal. See Tucker , 8 F.3d at 676. In assessin g the third category, H awkins shows no impairment of his grounds for appeal because the appeal itself fails on the merits. See id. at 675 (statin g that "[o]rdinarily, w here 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 othe r words, even if Hawkins's appeal had been decided in a timely fashion, he still would have failed on the merits. Thus, Ha wkins's due process rights were not violated, for he has failed to show prejudice.

### -6- III. Acceptance of Responsibility

Hawkins also contends that the district court erred in refusing t o reduce his base offense level for acceptance of responsibility unde r U.S.S.G. § 3E1.1. Th e Sentencing Guidelines permit a two-level reduction in the base offense l evel if a defendant "clearly demonstrates acceptance of resp onsibility for his offense." U.S.S.G. § 3E1.1(a). Th e de termination "`whether a defendant has accepted responsibility is a factual one, depending largely on credibility assessments by the sentencin g judge, who can far better evaluate the defendant's acceptance o f responsibility than can a reviewing court.'" Un ited 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).

Hawkin s argues that he is entitled to the reduction because h e admitted the substantive offense. Voluntarily admitting involvement in th e offense charged, howe ver, does not automatically entitle a defendant to a reduction for accepta nce of responsibility. United States v. Davila , 964 F.2d 778, 784 (8th Cir. 1992).

The Presentence Investigation Report (PSR) did not recommend a n acceptance-of-responsibility reduction because Hawkins did not cooperat e with t he government investigation and because he did not voluntaril y withdraw from criminal conduct. Relying on the PSR, the district cour t
ma de a specific finding that Hawkins had not cooperated with th e government. Because the district court is in a unique position to evaluat e a defendant's credibi lity, 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.