                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     July 14, 2016
               Plaintiff-Appellee,

v                                                                    No. 326391
                                                                     Wayne Circuit Court
TAMBOURA KENYATTA JACKSON,                                           LC No. 14-004254-FH

               Defendant-Appellant.


Before: RIORDAN, P.J., and SAAD and M. J. KELLY, JJ.

PER CURIAM.

        At a second trial, a jury convicted defendant, Tamboura Kenyatta Jackson, of conducting
a criminal enterprise, MCL 750.159i(1), forgery, MCL 750.248, and accepting a bribe as a public
officer, MCL 750.118. The trial court sentenced Jackson to concurrent prison terms of 2-1/2 to
20 years for conducting a criminal enterprise, 11 to 168 months for forgery, and 1 to 12 years for
accepting a bribe as a public officer. Jackson appeals by right his convictions and argues that the
lengthy delay in his arrest deprived him of due process. We conclude that he has not established
any error warranting relief. Accordingly, we affirm.

         Jackson was an officer with the Detroit Police Department. Testimony established that
he created false police reports and sold them to Lisa Curtis from May to September 2009. Curtis
testified that she ran a credit repair and loan modification business. She admitted that she paid
Jackson for false police reports, which alleged identify theft, to remove negative entries from
several of her clients’ credit history reports. After a credit bureau director noticed “red flags” in
the police reports and submission letters, he contacted the Detroit Police Department.

        At the request of the Detroit Police Internal Affairs Department, the FBI investigated the
allegations in January 2010. According to two FBI special agents, Jackson admitted generating
false police reports for Curtis during an interview. In 2012, the FBI sent the case to the
Michigan Attorney General’s Office, which investigated further. On March 26, 2014, officers
arrested Jackson. Jackson had a trial in September 2014, which ended in a mistrial. The trial
court held a second trial in December 2014, and the jury convicted Jackson as already noted.

        In his sole issue on appeal, Jackson argues that the five-year delay between the time of
his alleged offenses in 2009 and his arrest in 2014 caused substantial prejudice to his ability to
defend himself, which amounts to a violation of his right to due process. Contrary to Jackson’s
contention on appeal, he did not preserve this issue by moving for dismissal of the charges
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against him before the first trial. Rather, only codefendant Curtis moved for dismissal, arguing
that the prearrest delay prejudiced her ability to develop her duress defense. Therefore, this issue
is unpreserved. We review unpreserved constitutional claims for plain error. People v Carines,
460 Mich 750, 763-764; 597 NW2d 130 (1999).

       “A prearrest delay that causes substantial prejudice to a defendant’s right to a fair trial
and that was used to gain tactical advantage violates the constitutional right to due process.”
People v Woolfolk, 304 Mich App 450, 454; 848 NW2d 169 (2014). “Defendant must present
evidence of actual and substantial prejudice, not mere speculation.” Id. To be substantial, the
prejudice to the defendant must have meaningfully impaired his ability to defend against the
charges such that the outcome of the proceeding was likely affected. People v Patton, 285 Mich
App 229, 237; 775 NW2d 610 (2009). Mere speculation that the delay caused lost memories,
witnesses, or evidence does not establish actual and substantial prejudice. Woolfolk, 304 Mich
App at 454. If a defendant establishes actual and substantial prejudice, the prosecution then
bears the burden of establishing that the reason for the delay was sufficient to justify that
prejudice. Patton, 285 Mich App at 237.

        Jackson claims that he suffered prejudice because Curtis’s cell phone records and emails
could not be retrieved after the long delay. Although officers did not arrest Jackson until March
2014, investigators made an effort to retrieve the emails and cell phone records as early as 2010.
Curtis testified that at the behest of her lawyer, she attempted to retrieve her emails in October
2010, but the email account had been deactivated, and an FBI special agent testified that he sent
preservation letters, but too much time had already passed. In addition, Curtis’s laptop that she
used to communicate with Jackson was stolen from her vehicle in approximately August 2009,
and a special agent obtained the police report and determined that the laptop was never
recovered. Thus, Jackson’s claim that the five-year delay prevented the retrieval of the emails
and phone records is disingenuous.

        More significantly, Jackson has not demonstrated substantial prejudice.                The
unavailability of evidence alone is insufficient to show that Jackson suffered actual and
substantial prejudice, Woolfolk, 304 Mich App at 454, and Jackson has not shown that any of
records would have been helpful to his defense. He asserts that, without the records, there is
nothing to support Curtis’s accomplice testimony. However, the actual police reports created
and signed by Jackson were admitted in evidence. A Detroit police captain explained that each
Detroit police officer has a unique password in order to enter the system to generate police
reports and that Jackson’s unique password was used to generate the false reports. Two FBI
special agents testified that Jackson confessed to creating and selling the false police reports to
Curtis. There is no basis for believing that the existence or nonexistence of evidence that Curtis
communicated with Jackson by text messaging or email would have exonerated him. Jackson’s
mere assertion that the evidence could have assisted his defense is too speculative to satisfy the
threshold requirement of actual and substantial prejudice. Therefore, Jackson has not established
plain error.




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        Additionally, even if the missing communications might have aided Jackson’s defense,
the record amply demonstrates that the delay resulted from the need for additional investigation.
United States v Lovasco, 431 US 783, 790; 97 S Ct 2044; 52 L Ed 2d 752 (1977). And there is
nothing in the record to indicate that the prearrest delay was intended to gain a tactical advantage
for the prosecution. People v Adams, 232 Mich App 128, 144; 591 NW2d 44 (1998).

       Jackson has not established that any delay in his arrest violated his right to due process.

       Affirmed.

                                                             /s/ Michael J. Riordan
                                                             /s/ Henry William Saad
                                                             /s/ Michael J. Kelly




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