United States v. Campbell

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 95-50214

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

TAKIA LYNNEA CAMPBELL

Defendant - Appellant

_________________________________________________________________

Appeal from the United States District Court
for the Western District of Texas
(A-91-CR-57-2)
_________________________________________________________________
July 22, 1996

Before REAVLEY, KING, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Takia Lynnea Campbell appeals his conviction after a jury

trial for conspiracy to possess with intent to distribute cocaine

base, possessing with intent to distribute cocaine base, and

carrying a firearm in relation to the commission of these

offenses. We affirm.

I. BACKGROUND

Pursuant to Local Rule 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in Local Rule
47.5.4.

1
 Campbell was arrested during a drug raid on a residence in

Austin, Texas. Austin Police Officer David Jarrell, a street-

level narcotics officer, received information from a confidential

informant that the residence was being used to sell crack

cocaine. With $20 provided by Jarrell, the informant went to the

door of the residence and bought a rock of crack cocaine from a

black male who matched the description of codefendent Cortney

Lucien. The informant delivered the substance to Jarrell.

Testing confirmed that the substance was crack cocaine and

Jarrell applied for a search warrant.

With a team of five officers and two supervisors, Jarrell

executed the search warrant on September 5, 1989 at approximately

9:40 p.m. Using a battering ram to burst through the front door,

the officers entered the residence screaming "Freeze. Police.

Don't move." Jarrell testified that he was the first person

through the door. According to Jarrell, he saw Campbell rising

from a couch and reaching for an object that Jarrell perceived to

be a weapon. Jarrell yelled "Gun, gun, gun," pushed Campbell

down on the couch, and handcuffed him.

Officer Servando Varela, another one of the first officers

to enter the house, noticed a man running from the bathroom and

pursued him into the bedroom. Officer John Nelson followed

Varela and took custody of the man, later identified as Lucien.

Lucien carried an identification card from the Malibu Grand Prix

amusement park with his picture and the name Antoine Watson, an

alias that Lucien used. On the coffee table, Nelson found a

2
second identification card from Malibu Grand Prix with Campbell's

picture. Lucien had a set of keys in his pocket that fit the

front door. Nelson also took custody of an application for a

lease rental agreement in the name of Antoine Watson and a lease

application signed by Tony Richman.

Varela returned to the living room and saw a Colt .45

caliber automatic pistol sticking out from the third cushion of

the couch where Campbell was seated. He called out to Officer

Eddie Booth to seize the weapon. Booth indicated two other

locations in the room where a 9 mm. automatic and a .38 caliber

pistol were found. One gun was on the floor near the kitchen,

and another gun was on the floor by the couch. All of the guns

were loaded and fully functional.1

Varela found 2.25 grams of powdered cocaine in a video tape

case on top of a stereo speaker across from the couch. He also

found 0.39 ounces of marijuana and some marijuana cigarette butts

in another tape case on the coffee table. Eight or nine

individual packets of crack cocaine were found in the toilet and

approximately $600 in cash was found in the bathroom sink.

While the officers searched the residence, someone knocked at

the front door. When Jarrell opened the door he found a man

standing there with a $20 bill in his hand. The man indicated

that he was there to see a friend and claimed that he just

At trial, the Government presented testimony and a
photograph of the weapons because the Colt .45 had been returned to
its owner, and the other two weapons were mistakenly destroyed by
the evidence room.

3
happened to be holding the $20 bill. Jarrell took the $20 and

turned over the man to one of the other officers.

The officers arrested Campbell and Lucien on September 5,

1989. The two were charged with second-degree felony drug

possession in Texas state court. These charges were later

dismissed to allow for prosecution by the United States Attorney.

On May 9, 1991, Lucien and Campbell were indicted by a federal

grand jury on three related counts: conspiring to possess a

controlled substance with intent to distribute, under 21 U.S.C.

§§ 841(a)(1) & 846; possession of a controlled substance with

intent to distribute, under 21 U.S.C. § 841(a)(1); and use of a

firearm in relation to possession of a controlled substance with

intent to distribute, under 18 U.S.C. § 924(c). On January 9,

1992, four days prior to trial, the indictment against Campbell

was dismissed by motion of the United States.

On January 18, 1994, the grand jury issued a superseding

indictment charging essentially the same three counts as the

previous indictment. Campbell filed a "Motion to Dismiss with

Prejudice for Lack of Speedy Trial and Incorporated Memorandum in

Support Thereof." Campbell asserted that his due process rights

had been violated by the Government's intentional act to gain a

tactical advantage and asked that the charges be dismissed.2 The

district court held an evidentiary hearing and denied Campbell's

motion. Campbell then entered into an agreement to plead guilty

Campbell made a hybrid argument combining the Fifth
Amendment due process claim of pre-indictment delay and a Sixth
Amendment speedy trial claim.

4
to a one-count, superseding information charging misprision of a

felony in violation of 18 U.S.C. § 4. Finding the plea

agreementtoo lenient, the district court rejected it and set the

case for trial.

Trial was held on January 4 and 5, 1995. The jury found

Campbell guilty on all three counts. The district court imposed

concurrent terms of imprisonment of 78 months for the first two

counts, a 60-month term of imprisonment for the third count to

run consecutively to the concurrent terms, a four-year term of

supervised release, and a special assessment of $150. Campbell

filed a timely notice of appeal.

II. DISCUSSION

Campbell raises several issues on appeal. These issues may

be expressed as follows: (1) whether the evidence adduced at

trial was sufficient to support the crack cocaine convictions;

(2) in light of the supervening Supreme Court opinion in Bailey

v. United States, 116 S. Ct. 501 (1995), whether the evidence was

sufficient to support the firearm conviction and whether the

district court’s charge to the jury in this regard was error; (3)

whether the pre-indictment delay was a violation of Campbell's

right to due process; and (4) whether Campbell was denied

effective assistance of counsel in violation of the Sixth

Amendment. We address these issues seriatim.

A. The Cocaine Charges

Campbell argues that all of the evidence establishing

5
conspiracy to possess and possession of cocaine with intent to

distribute pertains solely to Lucien. He contends that the

evidence shows only that he was acquainted with Lucien and

Richman, that he was present at the residence where the informant

purchased a rock of crack cocaine, and that he was sitting on the

living room couch when the search was executed. Campbell argues

that the evidence failed to establish that he intended to

conspire with Lucien to possess the crack cocaine, that he had

knowledge of the crack cocaine found in the bathroom, or that he

had dominion and control over the crack cocaine or the residence.

After conviction by a jury, the scope of our review of the

sufficiency of the evidence is narrow. United States v. Salazar,

66 F.3d 723, 728 (5th Cir. 1995). We must affirm if a reasonable

trier of fact could have found that the evidence established

guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319 (1979); United States v. Harris, 25 F.3d 1275, 1279 (5th

Cir.), cert. denied, 115 S. Ct. 458 (1994).

It is not necessary that the evidence exclude every
reasonable hypothesis of innocence or be wholly
inconsistent with every conclusion except that of
guilt, provided a reasonable trier of fact could find
that the evidence establishes guilt beyond a reasonable
doubt. A jury is free to choose among reasonable
constructions of the evidence.

United States v. Bell, 678 F.2d 547, 549 (5th Cir. 1982) (en

banc), aff'd, 462 U.S. 356 (1983). We must consider all the

evidence, all reasonable inferences drawn therefrom, and all

credibility determinations, in the light most favorable to the

verdict. United States v. Resio-Trejo, 45 F.3d 907, 911 (5th

6
Cir. 1995).

To support a conviction in a drug-conspiracy prosecution,

"the government must prove beyond a reasonable doubt (1) the

existence of an agreement between two or more persons to violate

the narcotics laws, (2) that the defendant knew of the agreement,

and (3) that he voluntarily participated in the agreement."

United States v. Maltos, 985 F.2d 743, 746 (5th Cir. 1992). "The

agreement, a defendant's guilty knowledge and a defendant's

participation in the conspiracy all may be inferred from the

development and collocation of circumstances." Id. (internal

quotation marks and citations omitted). "Although presence at

the scene and close association with those involved in a

conspiracy are insufficient factors alone, they are nevertheless

relevant factors for the jury." United States v. Leed, 981 F.2d

202, 205 (5th Cir.), cert. denied, 113 S. Ct. 2971 (1993).

To establish the offense of possession of a controlled

substance with intent to distribute, the Government must prove

beyond a reasonable doubt that Campbell had (1) knowledge, (2)

possession of a controlled substance, and (3) an intention to

distribute it. United States v. Garza, 990 F.2d 171, 174 (5th

Cir.), cert. denied, 114 S. Ct. 332 (1993). “Possession may be

actual or constructive and may be joint among several

defendants.” United States v. Cardenas, 9 F.3d 1139, 1158 (5th

Cir. 1993) (citation omitted), cert. denied, 114 S. Ct. 2150

(1994). Constructive possession is the "knowing exercise of, or

the knowing power or right to exercise dominion and control over

7
the proscribed substance." Id. (internal quotation marks and

citations omitted). Intent to distribute may be inferred from

possession of a quantity of drugs too large for ordinary

consumption. United States v. Pineda-Ortuno, 952 F.2d 98, 102

(5th Cir.), cert. denied, 504 U.S. 928 (1992). Distribution

includes acts in furtherance of transfer, sale, or delivery.

United States v. Lechuga, 888 F.2d 1472, 1478 (5th Cir. 1989).

Viewing the evidence in the case at bar in the light most

favorable to the verdict, we find that a reasonable jury could

have inferred that Campbell conspired to possess and did possess

the crack cocaine with the intent to distribute. In addition to

Campbell’s presence in the residence and his relationship with

Lucien and Richman, his knowledge of and participation in the

operation could be inferred from the circumstances. There was

money in the bathroom sink, a large quantity of crack cocaine in

the toilet, and there were guns and drugs in the living room. At

least one person came to the door of the residence to purchase

crack cocaine and another was discovered at the door with a $20

bill in his hand. There was a pistol under the cushion where

Campbell was sitting and there was testimony that Campbell

reached for the pistol when the officers burst into the room.

Making a move for the gun, in particular, indicates that Campbell

was a knowing participant in the drug conspiracy and that he

actively aided and abetted the possession with intent to

distribute the crack cocaine. We thus conclude that the evidence

was sufficient to support Campbell’s conviction on each of the

8
drug charges.

B. The Firearm Charge

1. Sufficiency of the Evidence

Campbell argues that the evidence was insufficient to

convict him of the firearm charge under 28 U.S.C.§ 924(c)(1).

"Section 924(c)(1) requires the imposition of specified penalties

if the defendant, `during and in relation to any crime of

violence or drug trafficking crime . . . uses or carries a

firearm.'"3 Bailey v. United States, 116 S. Ct. 501, 505 (1995).

Campbell argues, in his initial brief, that the firearm charge

failed because there was insufficient evidence to support the

underlying drug charges. In light of our determination that

there was sufficient evidence to support the underlying drug

charges, this argument is without merit. In his reply brief,

however, Campbell bases his insufficiency of the evidence claim

as to the firearm charge on the holding in Bailey.

The Supreme Court decided Bailey on December 6, 1995,

approximately one year after Campbell was convicted but while his

direct appeal was pending. It is well-settled that criminal

defendants are entitled to the benefit of changes in the law

The superseding indictment charged Campbell with "carry
and use" of the three firearms in the conjunctive. The district
court correctly stated the statute as requiring "use or carry" but
instructed the jury that the Government must prove "use and carry."
In a § 924(c) case, "a disjunctive statute may be pleaded
conjunctively and proved disjunctively." United States v. Pigrum,
922 F.2d 249, 253 (5th Cir.), cert. denied, 500 U.S. 936 (1991)
(internal quotation marks and citations omitted). Thus, even
though the indictment charged Campbell using the word "and," it was
possible and proper for the Government to obtain a conviction by
proving that Campbell either used or carried the firearm. Id.

9
announced while their cases are on direct review. See, e.g.,

Griffith v. Kentucky, 479 U.S. 314, 327-28 (1987); United States

v. Rivas, 85 F.3d 193, 195 n.1 (5th Cir. 1996). Therefore,

Bailey is applicable to this case.

Holding that mere possession does not constitute “use” for

purposes of § 924(c)(1) analysis, Bailey significantly curtailed

the reach of the statute. Bailey, 116 S. Ct. at 508.

Consolidating two cases for appeal, the Court found that the

evidence was insufficient in each to support conviction for use

of a firearm under § 924(c)(1). Id. at 509. In the first case,

when police arrested the defendant after a routine traffic stop,

they found cocaine in the passenger compartment of his car and a

loaded pistol locked in the trunk. The police arrested the

second defendant in a separate incident when they found cocaine

and an unloaded Derringer in a locked trunk in her bedroom closet

while executing a search warrant. Reversing both convictions,

the Supreme Court held that Ҥ 924(c)(1) requires evidence

sufficient to show an active employment of the firearm by the

defendant, a use that makes the firearm an operative factor in

relation to the predicate offense.” Id. at 505.

The Court explained that such active employment “includes

brandishing, displaying, bartering, striking with, and most

obviously, firing or attempting to fire, a firearm.” Id. at 508.

Even referring to a firearm in one’s possession, if “calculated

to bring about a change in the circumstances of the predicate

offense is a ‘use.’” Id. On the other hand, the Bailey Court

10
reasoned, Congress did not intend to punish the mere possession

of a firearm during and in relation to a drug offense, or

Congress would have done so. The Court concluded, therefore,

that “[a] defendant cannot be charged under § 924(c)(1) merely

for storing a weapon near drugs or drug proceeds. Storage of a

firearm, without its more active employment, is not reasonably

distinguishable from possession.” Id.

In the instant case, Campbell contends that the evidence did

not establish that he exercised "active employment" of a firearm

as required under Bailey. We disagree. Campbell's visible

movement toward the pistol hidden in the couch constituted active

employment of the weapon. The use requirement of § 924(c)(1), as

illuminated by Bailey, is satisfied “when the defendant reaches

for the weapon while being apprehended. . . . Such use of a

firearm constitutes ‘active employment’ of a firearm in

connection with an underlying drug trafficking offense.” United

States v. Johnson, No. 94-11131, 1996 WL 339196, at *3-4 (5th

Cir. June 19, 1996). Under the circumstances present in this

case, Campbell used the firearm when he reached for it.4

From the evidence presented, the jury reasonably could find

4
In United States v. Garcia, No. 95-20170, 1996 WL 316490,
at *8 (5th Cir. June 12, 1996), we found that the evidence that the
defendant reached for a pistol when confronted by officers was
insufficient to show that he used the pistol. However, Garcia is
distinguishable from Johnson and the case at bar, because the only
evidence that Garcia was reaching for a pistol tucked in his
waistband and hidden under his shirt was the testimony of an
officer who admitted during cross-examination that he did not know
why Garcia moved his hand toward his waist. Garcia, No. 95-20170,
1996 WL 316490, at *8.

11
that Campbell reached for -- actively employed -- the pistol

during and in relation to the underlying drug crimes. Thus, we

find that there was sufficient evidence to support the firearm

conviction under § 924(c)(1).5

2. Jury Instructions

In his reply brief, Campbell also argues that, in light of

Bailey, the district court's instruction to the jury on using and

carrying a firearm was erroneous. Moreover, because Bailey

altered controlling precedent, Campbell contends that he should

not be prejudiced for his failure to object at trial.

Prior to Bailey, conviction in this Circuit under §

924(c)(1) did not “depend on proof that the defendant had actual

possession of the weapon or used it in any affirmative manner,

but only that the firearm was available to provide protection to

the defendant in connection with his engagement in drug

trafficking.” United States v. Willis, 6 F.3d 257, 264 (5th Cir.

5
The superseding indictment charged Campbell under §
924(c) as to all three firearms discovered at the residence:
“[S]pecifically one Colt .45 caliber pistol Mark IV, series 70,
Serial No. 70B33921, one Arminius Titan Tiger .38 caliber revolver
Serial No. 0520020 and one Star Model BM 9mm caliber pistol Serial
No. 1729524.” To find Campbell guilty under § 924(c)(1), it was
necessary only that the jury determine that he used or carried one
of these weapons during or in relation to the crack-cocaine crimes.
18 U.S.C. § 924(c)(1).
At trial, the prosecution focused on the .45 caliber pistol.
Jarrell testified that Campbell reached for this pistol when the
officers entered the residence. A reasonable jury could agree that
it was the .45 caliber pistol that was used by Campbell.
Nonetheless, as we stated in United States v. Correa-Ventura, 6
F.3d 1070 (5th Cir. 1993), to convict a defendant under § 924(c) in
a case such as this, there does not have to be unanimous agreement
among the jurors about which of the weapons seized from the
residence was used in commission of the drug offenses. Correa-
Ventura, 6 F.3d at 1077-82.

12
1993) (citation and brackets omitted). As such, at the time of

trial, the district court’s instructions were correct as given:

[T]he Government is not required to prove that the
defendant actually fired a weapon or brandished it at
someone in order to prove "use" as that term is used in
these instructions. However, the Government must prove
some relationship or connection between the crime and
the use and carrying of the firearm. Therefore, you
must be convinced beyond a reasonable doubt that the
firearm played a role or facilitated in the commission
of the drug offense, or had the potential to do so,
such as for safeguarding or protecting an illegal drug
transaction. In other words, you must find that the
firearm was an integral part of the drug offense
charged.

As discussed above, however, this instruction is contrary to

the Supreme Court's holding in Bailey, which states that “the

inert presence of a firearm, without more, is not enough to

trigger § 924(c)(1).” 116 S. Ct. at 508. Conviction under the

statute requires evidence sufficient to indicate an “active

employment” of the firearm by the defendant. Id. at 505. In the

instant case, as with the sufficiency-of-the-evidence issue

regarding the firearm charge, Bailey is applicable to the jury-

instruction issue because Bailey was decided during the pendency

of this appeal. Griffith, 479 U.S. at 327-28.

Federal Rule of Criminal Procedure 52(b) provides an

appellate court a limited power to correct forfeited errors that

were not raised in the district court,6 including instructional

errors. United States v. Olano, 507 U.S. 725, 731 (1993).

Generally, when a defendant fails to object to a jury instruction

6
Rule 52(b) provides: “Plain errors or defects affecting
substantial rights may be noticed although they were not brought to
the attention of the court.” Fed. R. Crim. P. 52(b).

13
before the district court, we review the instruction challenged

on appeal for plain error. United States v. Flores, 63 F.3d

1342, 1347 (5th Cir. 1995), petition for cert. filed, (U.S. Mar.

14, 1996) (No. 95-8346). In this regard, the Supreme Court has

construed Rule 52(b) to require a showing that (1) there was

error and no waiver; (2) the error was plain; and (3) that the

error affected the defendant’s substantial rights -- i.e., that

it was prejudicial. Id. at 731-35. As long as these three

elements are satisfied, the reviewing court has discretion to

correct an otherwise forfeited error when the error “seriously

affect[s] the fairness, integrity, or public reputation of

judicial proceedings.” Id. at 736 (quoting United States v.

Atkinson, 297 U.S. 157, 160 (1936)).

This Circuit has not clearly resolved whether plain error

analysis applies in the context of a supervening Supreme Court

decision -- i.e., when a Supreme Court decision announces a new

constitutional rule not recognized at the time of trial. Most

circuits apply plain-error review to unobjected-to errors of this

kind. See, e.g., United States v. Ramirez-Ferrer, 82 F.3d 1149,

1151 (1st Cir. 1996); United States v. Baker, 78 F.3d 1241, 1246

(7th Cir. 1996); United States v. Lopez, 71 F.3d 954, 960-61 (1st

Cir. 1995), cert denied, No. 95-8569, 1996 WL 183363 (U.S. Jun.

17, 1996). At least one circuit, however, appears to allow

direct harmlessness review of an issue “where a supervening

decision has changed the law in appellant’s favor and the law was

so well-settled at the time of trial that any attempt to

14
challenge it would have appeared pointless.” United States v.

Baucum, 66 F.3d 362, 363 (D.C. Cir. 1995).

Harmless-error analysis focuses on the effect of the alleged

error on the verdict actually returned by the jury. Sullivan v.

Louisiana, 508 U.S. 275, 279 (1993). Such error does not require

reversal: Rule 52(a) instructs the reviewing court to disregard

harmless error.7 Moreover, in harmless-error review, as

contrasted with plain-error review under Rule 52(b), the

Government bears the burden of persuasion with respect to

prejudice. Olano, 507 U.S. at 734.

In this case, we need not decide whether issues arising in

the context of a supervening decision require plain-error or

harmless-error analysis because the outcome is the same under

either standard. Whether we apply a Rule 52(b) plain-error

standard of review or a Rule 52(a) harmless-error standard,

Campbell’s jury-instruction argument fails.

Assuming arguendo that the instructional error is determined

to be plain error, it nevertheless did not affect Campbell’s

substantial rights and does not cast into doubt the fairness,

integrity, or public reputation of the proceedings. Campbell’s

participation in the underlying crack-cocaine crimes, as well as

his use of a firearm in terms of § 924(c)(1), was supported by

evidence that he reached for the Colt .45 as officers entered the

residence. We find that, on the facts presented to the jury, a

7
Rule 52(a) provides: “Any error, defect, irregularity or
variance which does not affect substantial rights shall be
disregarded.” Fed. R. Crim. P. 52(a).

15
different instruction would not have affected the outcome. See,

e.g., United States v. Baker, 78 F.3d at 1247 (finding no plain

error in use instruction because a properly instructed jury still

would have convicted defendant of carrying firearm); United

States v. Masotto, 73 F.3d 1233, 1241-42 & n.5 (2d Cir. 1996)

(affirming conviction where evidence was sufficient, despite

improper instruction on active employment), petition for cert.

filed, 64 U.S.L.W. 3765 (U.S. May 1, 1996) (No. 95-1794).

Furthermore, based on the way the Government argued and

submitted the case to the jury, the instructional error was

harmless. In order to convict Campbell of the underlying drug

charges, the jury necessarily found that Campbell reached for the

firearm. Notwithstanding the erroneous jury instruction as to §

924(c)(1), the jury’s determination that Campbell “used” the

pistol was based on Campbell’s affirmative employment of the

weapon, and not on the mere presence of guns in the residence and

the potential for their use. An instructional error that

pertains to an element of the offense is harmless “if the

evidence of guilt is so overwhelming that the error could not

have contributed to the jury’s decision to convict.” United

States v. Malone, 837 F.2d 670, 672 (5th Cir. 1988) (quoting

Healy v. Maggio, 706 F.2d 698, 701 (5th Cir.), cert. denied, 464

U.S. 984 (1983)); see also Pope v. Illinois, 481 U.S. 497, 502

(1987) (reviewing instruction in obscenity prosecution for

harmless error because it did not affect verdict); United States

v. Parker, 73 F.3d 48, 53 (5th Cir.) (finding instructional error

16
harmless where there was no “reasonable likelihood that the jury

applied the instructions in a way that violates the

Constitution”), petition for reh’g en banc granted, 80 F.3d 1042

(5th Cir. 1996).

Although the jury received a broader instruction than

currently permitted under Bailey, we believe that the evidence of

Campbell’s use of the firearm fell squarely within the scope of

the Bailey rule. Because the narrower instruction now required

by Bailey fits the factual theory advanced by the prosecution as

well as the facts proved, we find that there is no reasonable

likelihood that the jury’s verdict would have been different had

the correct instruction been given. Cf. Pineda-Ortuno, 952 F.2d

at 104 (finding that including words “use” and “used” in jury

instructions was harmless where defendants were necessarily

convicted of carrying as charged in indictment); United States v.

Ortega, 859 F.2d 327, 330-31 (5th Cir. 1988) (concluding that

erroneous inclusion of constructive possession instruction was

harmless -- not plain error -- where case was based on actual

possession theory), cert. denied, 489 U.S. 1027 (1989); see also

United States v. Giraldo, 80 F.3d 667, 678 (2d Cir. 1996)

(finding that erroneous “use” instruction was harmless where

instruction would have been correct with respect to “carry” and

evidence proved carrying), petition for cert. filed, (U.S. May 8,

1996) (No. 95-9278); United States v. Manning, 79 F.3d 212, 216

(1st Cir. 1996) (affirming conviction under § 924(c)(1) because,

although evidence was insufficient to prove “use” under Bailey,

17
it did prove carrying). Thus, to the extent that the jury

instruction was rendered error by the supervening Supreme Court

decision in Bailey, we conclude that such error was harmless

under the particular facts of this case.

C. Pre-indictment Delay

Campbell contends that the district court erred in denying

his motion to dismiss his indictment for pre-indictment delay.

He argues that the twenty-four month delay between the dismissal

of the initial federal indictment and the filing of the

superseding indictment constituted a violation of his right of

due process.

"[T]he Supreme Court has held that the Due Process Clause of

the Fifth Amendment protects an accused against pre-indictment

delay." United States v. Beszborn, 21 F.3d 62, 65 (5th Cir.),

cert. denied, 115 S. Ct. 330 (1994). The burden of proving such

a due-process violation is on the defendant. Id. The defendant

must prove that (1) the prosecutor intentionally delayed the

indictment to gain a tactical advantage or for some other

bad-faith purpose,8 and (2) the defendant incurred actual

prejudice as a result of the delay. United States v. Crouch, 84

F.3d 1497, 1500 (5th Cir. 1996) (en banc). The district court

Relying on United States v. Crouch, 51 F.3d 480, 483 (5th
Cir. 1995), Campbell argues that to prevail on this issue he was
not required to show deliberate tactical delay by the Government.
We reversed Crouch, however, on rehearing en banc. United States
v. Crouch, 84 F.3d 1497, 1514 (5th Cir. 1996) (en banc) (holding
that, to violate the Due Process Clause, pre-indictment delay must
have been “intentionally undertaken by the government for the
purpose of gaining some tactical advantage”).

18
found that Campbell failed to carry his burden of showing an

intentional delay to gain a tactical advantage, and furthermore,

that Campbell failed to demonstrate actual prejudice.

We apply a clearly erroneous standard to findings of fact --

such as whether the prosecution, in bad faith, intentionally

delayed an indictment. Id. at 66. After reviewing the record in

this case, we find that Campbell failed to satisfy the first

requisite of his due-process claim: He did not demonstrate that

the prosecutor intentionally delayed the indictment in bad faith

or to gain a tactical advantage. Thus, we find meritless

Campbell’s allegation that he was denied due process, and we

conclude that the district court did not err in rejecting

Campbell’s motion to dismiss for pre-indictment delay.

D. Ineffective Assistance of Counsel

Campbell contends that he was denied effective assistance of

counsel because his counsel failed to properly raise the issue of

pre-indictment delay. Campbell points out that at trial,

although asserting “due process rights,” his counsel

inarticulately framed the issue of pre-indictment delay in terms

of the Sixth Amendment right to a speedy trial. For this reason,

because Campbell felt that his counsel did not fully develop how

he had been prejudiced by the pre-indictment delay, and because

his counsel did not re-urge his motion to dismiss when he had the

opportunity, Campbell maintains that he was inadequately

represented.

"The general rule in this circuit is that a claim of

19
ineffective assistance of counsel cannot be resolved on direct

appeal when the claim has not been raised before the district

court since no opportunity existed to develop the record on the

merits of the allegations." United States v. Higdon, 832 F.2d

312, 313-14 (5th Cir. 1987), cert. denied, 484 U.S. 1075 (1988).

We have resolved such claims only when the record is sufficiently

developed to allow a fair evaluation of the merits of the claim.

See United States v. Blankenship, 923 F.2d 1110, 1117 (5th Cir.),

cert. denied, 500 U.S. 954 (1991). In the instant case, because

we have addressed the district court's denial of Campbell’s

motion to dismiss for pre-indictment delay, we believe that we

can evaluate fairly the merits of Campbell’s ineffective-

assistance-of-counsel claim.

For his part, Campbell must prove two components to support

his claim: (1) that his counsel made errors that were so serious

that they deprived him of his Sixth Amendment guarantee of

assistance of counsel; and (2) that the deficient performance

prejudiced his defense. Strickland v. Washington, 466 U.S. 668,

687 (1984). "Judicial scrutiny of counsel's performance must be

highly deferential. . . . [C]ounsel is strongly presumed to have

rendered adequate assistance and made all significant decisions

in the exercise of reasonable professional judgment." Id. at

689-90. In order to show prejudice, the defendant must

demonstrate that his counsel's errors were so serious as to

deprive him of a trial whose result is fair or reliable.

Lockhart v. Fretwell, 113 S. Ct. 838, 844 (1993).

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 Assuming arguendo that Campbell’s counsel could have urged

more effectively the motion to dismiss, Campbell, nonetheless,

fails to satisfy the second requirement of the Strickland test --

he has not demonstrated prejudice. To establish that a deficient

performance prejudiced the defense, the defendant must show that

“counsel’s errors were so serious as to deprive the defendant of

a fair trial, a trial whose result is reliable.” Strickland, 466

U.S. at 687. As discussed above, Campbell has demonstrated no

prejudice resulting from the pre-indictment delay; Campbell made

no showing of how the delay rendered his trial any less fair or

its result any less reliable than had there been no delay. As

with each of the previous issues raised by Campbell in this

appeal, we conclude that his Sixth Amendment ineffective-

assistance-of-counsel claim is without merit.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the

district court.

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