United States v. Dolores Reid , 764 F.3d 528 ( 2014 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 14a0197p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA, ┐
Plaintiff-Appellee, │
│
│ No. 13-1769
v. │
>
│
DOLORES REID, │
Defendant-Appellant. │
┘
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 2:12-cr-20456-1—Bernard A. Friedman, District Judge.
Argued: May 2, 2014
Decided and Filed: August 20, 2014
Before: DAUGHTREY, McKEAGUE, and DONALD, Circuit Judges.
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COUNSEL
ARGUED: David Herskovic, Southfield, Michigan, for Appellant. Stephanie M. Hays,
UNITED STATES ATTORNEY’S OFFICE, Detroit, Michigan, for Appellee. ON BRIEF:
David Herskovic, Gerald M. Lorence, Southfield, Michigan, for Appellant. Robert Cares,
UNITED STATES ATTORNEY’S OFFICE, Detroit, Michigan, for Appellee.
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OPINION
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DAVID W. McKEAGUE, Circuit Judge. Dolores Reid (“Reid”) appeals her conviction
for bribery and mail fraud, contending that: (1) the Government committed a Batson violation
when it struck jurors for cause after asking them whether they would be prejudiced against the
Government’s use of information from Reid’s prayer journal; (2) the Government violated
1
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Miranda in questioning Reid without a Miranda warning; and (3) her trial counsel was
ineffective in failing to challenge the sentencing guidelines computation. Reid also claims that
her counsel was ineffective for failing to timely raise objections to each of the aforementioned
claims. For the reasons set forth below, we AFFIRM the district court.
I.
Dolores Reid served as the Executive Director for State and Federal Programs for the
River Rouge School District during the 2010-2011 school year. One of the vendors who
received contracts for River Rouge School District was Flaggs and Associates Educational
Services (“Flaggs and Associates”). Flaggs and Associates is owned by Brian Flaggs, who is
Reid’s brother-in-law.
Reid and Flaggs worked together to enable Flaggs to receive four contracts from the
school district. The “Jump Start” program began in August 2010. To ensure that students
attended the program, Reid sent out letters and enrollment forms stating that participation in the
program was mandatory. Reid did not receive authorization for the program, nor did she receive
authorization to mandate participation in the program. Based on the false representation that the
program was mandatory, parents enrolled their children.
Flaggs received a total of $75,000 for the “Jump Start” program. The first payment of
$37,000 came in September 2010. The day after Reid authorized a $37,000 check to Flaggs and
Associates, Flaggs deposited the check into his bank account and took out $5,000 in cash. Two
days later, Reid deposited $1,950 into her personal bank account. Reid also noted in her journal:
“I thank you for the financial blessing that I received. Brian gave me $2,500 for the business he
generated through the school district.”
In the fall of 2010, the River Rouge School District offered tutoring to eligible students as
part of the federally funded Supplemental Education Service (“SES”) program. The
Supplementary Educational Services Program is a “sanction” imposed on schools receiving
Title I funds.1 If a school is not satisfying minimum yearly progress, then the school district is
1
Title I funds are federal funds sent to the state which are calculated based on census poverty data. The
state then determines how much money goes to a particular school district and monitors the use of those funds.
No. 13-1769 United States v. Reid Page 3
required to take 20 percent of the Title I Part A funds and them funds to offer parents the option
to take their children out of district or to elect supplemental education services (tutoring).
However, SES guidelines require that parents have the option of picking the specific tutoring
provider among the private companies who contract with the district to provide the service. Five
companies, including Flaggs and Associates, entered into contracts with the district for this
program.
During trial, the Government put forth evidence that Flaggs received preferential
treatment at the River Rouge School District. Because the SES contract with Flaggs was
executed weeks before the contracts with the other vendors, Flaggs was in a better position to
market his program. Furthermore, Flaggs’s contract allowed him to provide services up to a
maximum of 91 students. The maximum number of students for other providers ranged from
4 to 36. Flaggs was also allowed to provide tutoring services at the elementary school, while the
other contractors had to tutor at their own locations. There was no formal documentation
showing that Reid and Flaggs had an agreement in which he would give her kickbacks from the
compensation he was receiving from the River Rouge School District, but there were other
indicia of an agreement to that effect. At trial, the Government introduced Reid’s journal, which
appeared to acknowledge the preferential treatment. She wrote on November 13, 2010, “I admit
to giving advantage to Flaggs and Associates and I ask for forgiveness.” R. 52, 11-14-12 Jury
Trial Tr. at 58, PageID # 948. Furthermore, she made another entry on December 27, 2010
stating, “I thank you for the $2,500 blessing and flat screen TV (Flaggs and Associates Ed
Services).” Id. at 59, PageID # 949.
On June 6, 2012, agents executed a search warrant at three locations, including Reid’s
house and the administrative offices of the River Rouge School District. Concurrently, two FBI
agents interviewed Reid at the School District. Special Agents Vose and Fitzgerald approached
Reid and asked if they could speak with her. Reid showed them the conference room. The
agents informed Reid that her participation in the interview was voluntary. Reid, in response,
stated that there was no problem and that they could go ahead with the interview.
The agents did not tell Reid that a search was being conducted when they began the
interview at approximately 3:30 p.m. However, at approximately 4:20 p.m., the agents informed
No. 13-1769 United States v. Reid Page 4
Reid that a search was being conducted while she was being interviewed. Reid willingly assisted
the agents in locating documents. The interview then resumed.
Reid appeared troubled to Agent Fitzgerald when he asked her about taking money and
gifts. Agent Fitzgerald then told her, “[T]his is the time that you need to get it off your chest.”
At trial, he testified as follows: “I told her what the right thing to do is, the right thing to do is to
tell the truth. And that’s all I wanted to get to was the truth.” R. 52, 11-14-12 Jury Trial Tr. at
88, PageID # 978. Reid then admitted that she had received $10,000 to $20,000 from Flaggs for
providing preferential treatment to his company.
After some additional questioning, Reid agreed to write a statement, which began with
the sentence, “I, Dolores Reid, would like to provide the following voluntary statement.” Id. at
108–12, PageID # 998–1002. Reid wrote, “I have received ten to twenty thousand dollars from
Brian Flaggs over a two-year period. I admit that I should not have accepted that cash . . . . I
received the goods because I gave preferential treatment to Flaggs and Associates.” Id. at 112–
13, PageID # 1002–03. The interview concluded at approximately 6:25 p.m., and it lasted
approximately two hours and forty minutes.
During the search of Reid’s residence, agents found journals in which Reid had written
incriminating statements about receiving bribes from Flaggs and about giving Flaggs preferential
treatment. They also found a flat screen television that, based on the notes in the prayer journals,
had been purchased by Flaggs for Reid for more than $1,000.
Reid was indicted for acceptance of a bribe in violation of 18 U.S.C. § 666(a)(1)(B) and
for mail fraud in violation of 18 U.S.C. § 1341. A jury found Reid guilty of both charges. The
district court sentenced Reid to concurrent terms of imprisonment of 60 months for both counts.
II.
Reid sets forth a variety of claims on appeal, contending that: (1) the Government
committed a Batson violation when it struck jurors after asking them whether they would be
prejudiced against the Government’s use of information from Reid’s prayer journal; (2) the
Government violated Miranda in questioning Reid without a Miranda warning; and (3) her trial
counsel was ineffective in failing to challenge the sentencing guidelines computation. For each
No. 13-1769 United States v. Reid Page 5
claim, Reid alleges that her counsel was ineffective for failing to object or raise the claim in a
timely manner during the course of proceedings.
Because this case is before this Court on direct appeal, we could choose to review
ineffective assistance claims; however such claims generally are not appropriate for direct appeal
because the record is not sufficiently developed to assess the merits of the claim. Massaro v.
United States, 538 U.S. 500, 504 (2003) (“[I]n most cases a motion brought under § 2255 is
preferable to direct appeal for deciding claims of ineffective assistance.”). “When an ineffective-
assistance claim is brought on direct appeal, appellate counsel and the court must proceed on a
trial record not developed precisely for the object of litigation or preserving the claim and thus
often incomplete or inadequate for this purpose.” Id. at 504–05. Instead, ineffective assistance
of counsel claims normally should be raised in a petition for post-conviction relief pursuant to
28 U.S.C. § 2255. United States v. Ferguson, 669 F.3d 756, 762 (6th Cir. 2012). In the instant
case, our review of the record indicates that it is not sufficiently developed to enable us to make
a determination whether defense counsel was constitutionally ineffective and whether Reid was
prejudiced. Therefore, we decline to address Reid’s Sixth Amendment ineffective-assistance-of-
counsel claims.
A. Batson Violation
Reid claims that the Government committed a Batson violation when it asked a question
about obtaining evidence from a person’s prayer journal and subsequently successfully sought to
strike three jurors “for cause”2 on the basis that the jurors would not be able to serve impartially
on the jury. Reid claims that this question and the request to strike the three jurors “for cause”3
was intended specifically to eliminate African American jurors from the jury pool.
2
Batson challenges typically arise in connection with peremptory challenges, which do not require
explanation. The Government aptly questions whether Batson applies to “for cause” challenges. While neither
party points to a case where a Batson challenge was raised in connection with a “for cause” strike, we assume, only
for the purposes of this appeal and without deciding, that Batson may be used to challenge a “for cause” strike.
3
The voir dire transcript provides an account of the questioning by the Government and also provides
support that the Government exercised “for cause” strikes. However, it is important to note this transcript does not
indicate the race of the jurors who were excused.
No. 13-1769 United States v. Reid Page 6
Batson v. Kentucky, 476 U.S. 79 (1986), established that the Equal Protection Clause
prohibits striking jurors through peremptory challenges on the basis of race. To establish a
Batson violation,
the defendant must show that [s]he is a member of a cognizable racial group and
that the prosecutor has exercised peremptory challenges to remove from the
venire members of the defendant’s race. Second, the defendant is entitled to rely
on the fact, as to which there can be no dispute, that peremptory challenges
constitute a jury selection practice that permits those to discriminate who are of a
mind to discriminate. Finally, the defendant must show that these facts and any
other relevant circumstances raise an inference that the prosecutor used that
practice to exclude the veniremen from the petit jury on account of their race.
This combination of factors in the empaneling of the petit jury, as in the selection
of the venire, raises the necessary inference of purposeful discrimination.
Id. at 96 (internal quotations and citations omitted). Following this inquiry, the burden shifts to
the Government to come forward with a neutral explanation for using the peremptory strike. Id.
at 97. However, in order to preserve a Batson challenge, numerous circuit courts have held that
counsel must timely object during the voir dire process, or at the latest before the venire is
dismissed. See, e.g., United States v. McCrory, 82 F.3d 1243, 1247 (2d Cir. 1996) (“The Court’s
discussion in Batson, however, makes clear that it envisioned an objection raised during the jury
selection process.”); Morning v. Zapata Protein (USA), Inc., 128 F.3d 213, 216 (4th Cir. 1997);
United States v. Contreras-Contreras, 83 F.3d 1103, 1104 (9th Cir. 1996); United States v.
Parham, 16 F.3d 844, 847 (8th Cir. 1994); United States v. Maseratti, 1 F.3d 330, 335 (5th Cir.
1993); and United States v. Cashwell, 950 F.2d 699, 704 (11th Cir. 1992).
We have not previously addressed this issue in a published opinion. 4 We now hold that a
Batson challenge must be raised contemporaneously with the voir dire process or prior to the
time that the venire is dismissed. Because Reid did not timely object to the alleged Batson
violation, she has waived her right to do so here.
4
The Sixth Circuit, in an unpublished opinion, held that a Batson objection made after jury selection and
after the venire was discharged was not timely and, therefore, the defendant waived his right to challenge the
government’s exercise of a peremptory challenge. United States v. Peraza, 25 F.3d 1051 (6th Cir. 1994) (per
curiam). Accordingly, a failure to object to the alleged discriminatory use of peremptory challenges prior to the
conclusion of jury selection results in the waiver of that objection.
No. 13-1769 United States v. Reid Page 7
B. Statements Made During Questioning and Miranda
Reid was charged with both mail fraud and accepting a bribe. One of the key pieces of
evidence against Reid was her written statement, given to Agent Fitzgerald and Agent Vose, that
she had accepted between ten and twenty thousand dollars from Brian Flaggs in return for
preferential treatment and contracts for SES programs. Reid claims that her statement to the
agents was inadmissible, because she was not given a Miranda warning before she made her
statement. Miranda v. Arizona, 384 U.S. 436, 445 (1966).
Unfortunately for Reid, she did not file a pre-trial motion to suppress, as required by
Federal Rule of Criminal Procedure 12(b)(3)(C). In failing to do so, Reid has waived her right to
appellate review, of her Miranda claims. As we noted in United States v. Yannot:
We have previously held that under Rule 12, this court is “categorically without
jurisdiction to hear appeals of suppression issues raised for the first time on
appeal.” United States v. Cismon, 950 F.2d 966, 969 (6th Cir. 1990) (per curiam).
“This court strictly applies Rule 12(b), and has repeatedly held that the failure to
raise 12(b) motions in a timely fashion precludes appellate review.” United States
v. Oldfield, 859 F.2d 392, 396 (6th Cir. 1988).
42 F.3d 999, 1005 (6th Cir. 1994). Accordingly, we decline to review Reid’s Miranda claim on
the merits.
C. Sentencing Guidelines
Reid claims that she received ineffective assistance of counsel when her counsel failed to
argue for an accurate scoring of her sentencing guidelines. The presentence investigation report
sets the loss amount for guideline purposes at $165,540, resulting in a total offense level of
30 and a sentencing range of 97 to 121 months. PSR at ¶ 42. Under United States v. Washington,
715 F.3d 975, 984, 985 (6th Cir. 2013), a loss amount must be reduced by the fair market value
of the services provided, and the defendant has the burden of proving the specific value by which
the loss amount should be reduced.
Here, however, Reid’s counsel did not attempt to prove the specific value by which the
loss amount should be reduced. The government filed a sentencing memorandum that alerted the
court to the failure of defense counsel to attempt to offset the loss amount, as follows:
No. 13-1769 United States v. Reid Page 8
In this case, Ms. Reid has made no effort to prove the specific value by which
the loss amount should be reduced for services rendered. Nevertheless, the
government is obliged to inform the court that the investigation in this case has
established that Flaggs and Associates did provide some services. Because the
court has not been presented with a reliable and justifiable figure, the court could
depart from the guideline range in recognition that some services were provided
to the River Rouge School District. In light of the circumstances of this case and
the fact that the school district had received something of value from Flaggs and
Associates, in the form of services, the government does not object to a position
that the sentencing guidelines overstate the seriousness of the crime.
R. 36, Govt. Sent. Memo. at 4, PageID # 137. In response, the district court varied from the
guideline range downward, imposing a sentence of 60 months.
Reid’s only claim on appellate review is that her counsel was constitutionally ineffective
for failing to challenge the guideline calculations at sentencing. As previously stated, ineffective
assistance of counsel claims generally are not appropriate for direct appeal because the record is
not sufficiently developed to assess the merits of the claim. The record in the instant case is not
sufficiently developed to enable us to make a determination whether defense counsel was
constitutionally ineffective and whether Reid was prejudiced. Accordingly, we decline to
address Reid’s Sixth Amendment claim on direct appeal.
III.
For these reasons, we AFFIRM the judgment of the district court.