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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, 

v. 

DOLORES REID, 

Defendant-Appellant. 

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No. 13-1769 

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. 

_________________ 

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. 

_________________ 

OPINION

_________________ 

 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 

>
No. 13-1769 United States v. Reid Page 2 

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 ineffectiveassistance 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-ofcounsel 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.