United States of America v. James Kalbflesh

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4606
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES KALBFLESH,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. James K. Bredar, District Judge.
(1:13-cr-00083-JKB-1)
Submitted: July 29, 2015 Decided: August 13, 2015
Before WILKINSON, NIEMEYER, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Erek L. Barron, WHITEFORD, TAYLOR & PRESTON, LLP, Bethesda,
Maryland, for Appellant. Vanita Gupta, Principal Deputy
Assistant Attorney General, Mark L. Gross, Robert A. Koch,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Appellee.
Unpublished opinions are not binding precedent in this circuit.

-- 1 of 6 --

2
PER CURIAM:
James Kalbflesh appeals the district court’s judgment after
the jury convicted him of conspiracy against rights in violation
of 18 U.S.C. § 241 (2012), deprivation of rights in violation of
18 U.S.C. §§ 2, 242 (2012), and conspiracy in violation of 18
U.S.C. § 371 (2012). On appeal, Kalbflesh contends that he was
prejudiced by the Government’s pre-indictment delay in violation
of his right to Due Process under the Fifth Amendment, and the
district court erred in admitting statements in violation of his
rights under the Confrontation Clause. We affirm.
Kalbflesh first contends that the Government prejudiced him
“by delaying its investigation and indictment until shortly
after a key witness’s death and days prior to expiration of the
statute of limitations.” Second, he contends that the district
court’s admission of certain statements of the deceased witness
violated his rights under the Confrontation Clause.
The Fifth Amendment Due Process Clause “would require
dismissal of the indictment if it were shown at trial that the
pre-indictment delay in this case caused substantial prejudice
to appellees’ rights to a fair trial and that the delay was an
intentional device to gain tactical advantage over the accused.”
United States v. Marion, 404 U.S. 307, 324 (1971). We review a
claim that pre-indictment delay violated due process de novo.
United States v. Shealey, 641 F.3d 627, 633 (4th Cir. 2011).

-- 2 of 6 --

3
“We conduct a two-pronged inquiry to evaluate a defendant’s
claim that pre-indictment delay violated his right to due
process.” United States v. Uribe-Rios, 558 F.3d 347, 358 (4th
Cir. 2009) (citation omitted). “First, we ask whether the
defendant has satisfied his burden of proving ‘actual
prejudice.’” Id. (citation omitted). “This is a heavy burden
because it requires not only that a defendant show actual
prejudice, as opposed to mere speculative prejudice, but also
that he show that any actual prejudice was substantial — that he
was meaningfully impaired in his ability to defend against the
. . . charges to such an extent that the disposition of the
criminal proceeding was likely affected.” Shealey, 641 F.3d at
633-34 (citation and internal quotation marks omitted).
When the claimed prejudice is the unavailability of a
witness, the defendant must “demonstrate, with specificity, the
expected content of that witness’ testimony” and “that the
information the witness would have provided was not available
from other sources.” Jones v. Angelone, 94 F.3d 900, 908 (4th
Cir. 1996). He “must relate the substance of the testimony
which would be offered by the missing witnesses . . . in
sufficient detail to permit a court to assess accurately whether
the information is material to the accused’s defense.” United
States v. Bartlett, 794 F.2d 1285, 1290 (4th Cir. 1986)
(citations omitted). “Speculative or conclusory claims alleging

-- 3 of 6 --

4
‘possible’ prejudice as a result of the passage of time are
insufficient.” Id. (citations omitted).
“Second, if that threshold requirement is met, we consider
the government’s reasons for the delay, balancing the prejudice
to the defendant with the Government’s justification for delay.”
Uribe-Rios, 558 F.3d at 358 (citation and internal quotation
marks omitted). “The basic inquiry then becomes whether the
Government’s action in prosecuting after substantial delay
violates fundamental conceptions of justice or the community’s
sense of fair play and decency.” Id. (citations and internal
quotation marks omitted). “If delay results from a protracted
investigation that was nevertheless conducted in good faith,”
prosecuting the defendant following such “investigative delay
does not deprive him of due process, even if his defense might
have been somewhat prejudiced by the lapse of time.” Id.
(citation and internal quotation marks omitted).
The Confrontation Clause of the Sixth Amendment “bars the
admission of ‘testimonial statements of a witness who did not
appear at trial unless he was unavailable to testify, and the
defendant had had a prior opportunity for cross-examination.’”
United States v. Dargan, 738 F.3d 643, 650 (4th Cir. 2013)
(quoting Crawford v. Washington, 541 U.S. 36, 53-54 (2004)).
“Evidence implicates the Confrontation Clause only if it
constitutes a testimonial statement — that is, a statement made

-- 4 of 6 --

5
with ‘a primary purpose of creating an out-of-court substitute
for trial testimony.’” United States v. Reed, 780 F.3d 260, 269
(4th Cir. 2015) (quoting Michigan v. Bryant, 562 U.S. 344, 358
(2011)). “If a statement’s primary purpose is not to create a
record for trial, then the Confrontation Clause does not apply.”
Id. (citation and internal quotation marks omitted).
Statements made in furtherance of a conspiracy are not
testimonial. See Crawford, 541 U.S. at 55; United States v.
Sullivan, 455 F.3d 248, 258 (4th Cir. 2006) (statements made by
co-conspirators during the course of and in furtherance of a
conspiracy were not testimonial statements); cf. Dargan, 738
F.3d at 650-51 (statements of one prisoner to another about a
crime that he had committed were not testimonial). Moreover,
the Confrontation Clause “‘does not bar the use of testimonial
statements for purposes other than establishing the truth of the
matter asserted.’” United States v. Ayala, 601 F.3d 256, 272
(4th Cir. 2010) (quoting Crawford, 541 U.S. at 60 n.9)).
Although we review an alleged Confrontation Clause
violation de novo, “a violation may be found harmless on appeal
if the beneficiary of the constitutional error can prove beyond
a reasonable doubt that the error complained of did not
contribute to the verdict obtained.” Reed, 780 F.3d at 269
(citation and internal quotation marks omitted). We may avoid

-- 5 of 6 --

6
deciding whether there was a Confrontation Clause error and
simply assume error if it was harmless. Id. (citation omitted).
With these principles in mind, we have reviewed the record
and the parties’ briefs, and we conclude there was no reversible
error. As the district court found, Kalbflesh has not shown
actual prejudice due to the Government’s investigative delay.
Even assuming prejudice, we are convinced that the delay did not
violate fundamental conceptions of justice or the community’s
sense of fair play and decency. We further conclude that the
district court’s admission of statements of the deceased witness
did not violate the Confrontation Clause. The statements were
not testimonial because they were made in furtherance of the
conspiracy, not to create a record for trial. Even assuming
error, we conclude it was harmless beyond a reasonable doubt.
Accordingly, we affirm the district court’s judgment. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED

-- 6 of 6 --