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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED July 14, 2016

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

Defendant-Appellant.

Before: R IORDAN , P.J., and S AAD and M. J. K ELLY , JJ.

P ER C URIAM

.

At a second trial, a jury convicted defendant, Tamboura Kenyat ta Jackson, of conducting a criminal enterprise, MCL 750.159i(1), forgery, MCL 750.248, a nd accepting a bribe as a public officer, MCL 750.118. The trial court sentenced Jackson to con current 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 offi cer. Jackson appeals by righ t his convictions a nd argues that the lengthy delay in his arrest deprived him of due process. We co nclude that he has not established any error warranting relief . Accordingly, we affirm.

Jackson was an officer with the Detroit Police Department. Te stimony established that he created false police reports and sold them to Lisa Curtis fr om May to September 2009. Curtis testified that she ran a credit repair and loan modification bu siness. She admitted that she paid Jackson for false police reports, which alleged identify theft, to remove negative entries from
several of her clients’ credit hi story reports. After a credit bureau director noticed “red flags” in the police reports and submissi on letters, he contacted the Det roit Police Department.

At the request of the Detroit Police Internal Affairs Departme nt, the FBI investigated the allegations in January 2010. According to two FBI special agen ts, 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 i n December 2014, and the jury convic ted 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 subs tantial prejudice to his ability to defend himself, which amounts to a violation of his right to du e process. Contrary to Jackson’s contention on appeal, he did not preserve this issue by moving for dismissal of the charges-2- against him before the first trial. Rather, only codefendant C urtis 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 fo r plain error. People v Carines

, 460 Mich 750, 763-764; 597 NW2d 130 (1999).

“A prearrest delay that causes substantial prejudice to a defe ndant’s right to a fair trial and that was used to gain tactic al advantage violates the const itutional 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 speculat ion.” 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 affe cted. People v Patton , 285 Mich App 229, 237; 775 NW2d 610 (2009). Mere speculation that the d elay caused lost memories, witnesses, or evidence does not establish actual and substantia l 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 cel l 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 c ell phone records as early as 2010. Curtis testified that at the behest of her lawyer, she attempte d to retrieve her emails in October 2010, but the email account had been deactivated, and an FBI sp ecial 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 t hat the laptop was never recovered. Thus, Jackson’s claim that the five-year delay prev ented the retrieval of the emails and phone records is disingenuous.

More significantly, Jackson has not demonstrated substantial p rejudice. The unavailability of evide nce alone is insufficient to show that J ackson 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 tha t, 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 pol ice 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 uniqu e password was used to generate the false reports. Two FBI special agents testified that Jack son 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. The refore, Jackson has not established plain error.-3- Additionally, even if the missing communications might have ai ded 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 th ere 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 tha t any delay in his arrest viola ted his right to due process.

Affirmed.

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