NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 09a0376n.06
No. 06-1760 FILED
May 27, 2009
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. On appeal from the United States
District Court for the Eastern District
JAMES ROY SYLVESTER, JR., of Michigan
Defendant-Appellant.
/
BEFORE: RYAN, GIBBONS, and SUTTON, Circuit Judges.
RYAN, Circuit Judge. James Roy Sylvester, Jr., challenges his conviction for
various offenses related to his drug trafficking operation, including possession with intent
to distribute cocaine, marijuana, and various other controlled substances, in violation of 21
U.S.C. §§ 841(a)(1), 844(a), and 846, and being a felon in possession of a firearm, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(c). Sylvester claims that an incriminating
statement he made to police officers following his arrest was coerced and that his statutory
and constitutional rights to a speedy trial were violated. We find no basis for disturbing the
district court’s judgment, and we affirm.
I.
As early as 2001, Sylvester arranged to bring large quantities of cocaine and other
controlled substances from California to Michigan. Sylvester recruited Jose Escobar and
Vicky Loos to take Greyhound buses to California, pick up suitcases full of narcotics from
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Calvin Ayers and Frederick Wyatt, and bring them to Sylvester in Saginaw, Michigan. They
made at least four such trips.
On February 24, 2003, during one of the trips, Nebraska state investigators noticed
suspicious suitcases belonging to Escobar and Loos in the checked baggage at an Omaha
bus station. Sylvester’s name tags were on the cases and, inside, investigators found a
total of five kilograms of cocaine.
Loos agreed to cooperate with authorities by participating in a controlled delivery of
the cocaine to Sylvester in Saginaw. On February 25, 2003, Loos returned to Michigan,
met Sylvester at a Saginaw bus station, and delivered the drugs to him. Drug Enforcement
Administration (DEA) agents promptly arrested Sylvester and took him to a local Saginaw
police station. Other agents then planned to take Loos to her residence in Saginaw and,
with her consent, conduct a search of her house.
While booking Sylvester at the police station around 9:30 a.m., DEA agents found
ten grams of cocaine in his pants pocket. Meanwhile, when Loos and her accompanying
officers arrived at Loos’s house, two individuals who apparently expected to find Sylvester,
Loos, and Escobar returning from the bus station, ambushed Loos and the officers. A
shoot-out ensued in which both ambushers were killed and two police officers were
wounded. The officers at the scene called for help from the DEA agents who were with
Sylvester at the police station.
An emergency rescue team raced to Loos’s house, while agent Bruce Osterhagen
stayed behind with Sylvester to complete the booking process. Around 10:00 a.m.,
Osterhagen decided he was needed to coordinate the emergency at Loos’s residence, so
he placed Sylvester in a temporary detention room. He handcuffed one of Sylvester’s
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hands to a bench, intending to return shortly to question him. Osterhagen testified that
while coordinating the emergency response efforts at Loos’s house, he continually checked
on Sylvester to see if he needed water, a rest room break, or anything else.
At about 2:30 p.m., Osterhagen brought Sylvester out of the holding cell and placed
him in an interrogation room. During the interview that followed, Sylvester stated that over
the previous several years, he had purchased approximately nine kilograms of cocaine in
California for shipment to Michigan, including the five kilos seized at the Omaha bus
station. He admitted selling crack cocaine to Loos, and identified two other co-conspirators
by their street names. When Osterhagen began to question Sylvester about the ambush
at Loos’s house, Sylvester terminated the interview.
On February 25 and 26, 2003, DEA agents executed a search warrant at the home
Sylvester occupied with his mother, Corine, and found: several firearms and ammunition,
including a stolen 9 mm semi-automatic handgun; 187.4 grams of marijuana; drug
paraphernalia; 46 unidentified bottles of various prescription drugs; $11,600 in cash; and
financial records. In a search of Corine’s automobile, they found a bag containing $41,040
in cash, as well as records noting large amounts of money (over $50,000) deposited and
then withdrawn from Corine and Sylvester’s joint safety deposit box.
On February 26, 2003, a federal grand jury handed down an indictment against
Sylvester, charging him with two counts: possession with intent to distribute 500 grams or
more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(ii)(II); and possession
with intent to distribute five grams or more of crack cocaine, in violation of 21 U.S.C. §§
841(a)(1) and (b)(1)(B)(iii). Between February 2003 and January 2005, eight superseding
indictments issued, adding three additional codefendants, Calvin Ayers, Corine Sylvester,
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and Frederick Wyatt. The final indictment charged Sylvester with thirteen counts related
to drug trafficking and firearm possession.
On February 5, 2004, Sylvester filed a motion to suppress the statements he made
to officers during his post-arrest interview, and on April 28, 2004, after a hearing, the
district court denied the motion, holding that Sylvester’s statements were voluntary. On
November 19, 2004, Sylvester filed a motion to dismiss the charges against him due to
pretrial delay and, after a hearing, the district court denied the motion.
All of the defendants except James Sylvester entered into plea agreements and
Sylvester’s jury trial began on September 13, 2005. On September 21, 2005, the jury
returned a guilty verdict against Sylvester on twelve counts and, in due course, the district
court sentenced him to 35 years’ imprisonment. Sylvester has appealed.
II.
Sylvester argues that the district court erred in denying his motion to suppress
certain post-arrest statements because, he claims, the statements were involuntary in that
they were made after Sylvester was kept handcuffed in a holding cell for five hours.
In “reviewing the denial of a motion to suppress, we review the district court’s
findings of fact for clear error and its conclusions of law de novo,” considering “the
evidence in the light most favorable to the government.” United States v. Caruthers, 458
F.3d 459, 464 (6th Cir. 2006) (first internal quotation marks and citation omitted).
We have established three requirements that must be met for finding a confession
involuntary due to police coercion: “(i) the police activity was objectively coercive; (ii) the
coercion in question was sufficient to overbear the defendant’s will; and (iii) the alleged
police misconduct was the crucial motivating factor in the defendant’s decision to offer the
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statement.” United States v. Johnson, 351 F.3d 254, 260 (6th Cir. 2003) (internal quotation
marks and citation omitted). These factors are analyzed using a totality of the
circumstances approach, and the government bears the burden of proving by a
preponderance of the evidence that the confession was voluntary. Id.
Sylvester testified that he “felt threatened” by the agents because, after being locked
in a holding cell for five hours, he felt a lot of “tension” in the room when the officers spoke
to him with “intensity.” According to Sylvester, the agents further coerced him by showing
him a newspaper report of the police shooting at the Loos house.
We think the district court properly held that Sylvester’s statements to the DEA
agents were voluntary. Under the totality of the circumstances, there is no evidence of
police coercion. Agent Osterhagen placed Sylvester in a holding cell for several hours
while he coordinated the police response to the emergency situation at Loos’s house. He
was not questioned during that time and agent Osterhagen testified that he checked on
Sylvester regularly to ask if he wished to use the rest room or needed anything. The
district court found that Sylvester made his incriminating statements after receiving the
usual Miranda warnings and before agents showed him the newspaper story. There is no
evidence of objective coercive policy activity; Sylvester cannot show that his will was
overborne, or that any police misconduct motivated him to make his incriminating
statements. Therefore, we hold that the district court properly denied Sylvester’s motion
to suppress.
III.
More troublesome is Sylvester’s argument that his right to a speedy trial, as
guaranteed by the Speedy Trial Act of 1974 (STA), 18 U.S.C. § 3161, et seq., was violated
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because he was not brought to trial for more than two and one half years after his first
court appearance. Sylvester focused his argument on the time period between his first
court appearance and codefendant Ayers’s first court appearance after the issuance of the
superseding indictment adding Ayers as a defendant. The district court held there was no
Speedy Trial Act violation.
The problem with this argument is that the defendant never presented below, and
has not presented here, a precise explanation as to when the Speedy Trial Act clock
started, when it lapsed, and when a violation occurred. Even after we requested letter
briefs on the point, Sylvester still has not explained the underlying premises of his Speedy
Trial argument. By any conventional measure of forfeiture, Sylvester has forfeited this
argument.
IV.
Sylvester’s final argument is that the district court erred when it held that his Sixth
Amendment right to a speedy trial was not violated.
We review de novo a district court’s adjudication of a constitutional speedy trial
claim. United States v. Gardner, 488 F.3d 700, 719 (6th Cir. 2007).
The Supreme Court has established a balancing test to determine whether a Sixth
Amendment speedy trial violation has occurred, taking into consideration: “(1) whether the
delay was uncommonly long; (2) the reason for the delay; (3) whether the defendant
asserted his right to a speedy trial; and (4) whether prejudice resulted.” Id. (citing Barker
v. Wingo, 407 U.S. 514, 530 (1972)). No one factor alone is enough to establish a
violation; rather, we must conduct a balancing analysis, taking into account other relevant
factors. United States v. Schreane, 331 F.3d 548, 553 (6th Cir. 2003). We have held that
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a one-year delay between indictment and trial is presumptively prejudicial, triggering the
Barker analysis. Id.
While the detention-to-trial-date delay in Sylvester’s case could be described as
“uncommonly long,” the government issued eight superseding indictments and added three
codefendants. Sylvester filed numerous motions to delay trial, including four challenges
to the performance of his counsel that required several “ends of justice” delays and
continuances.
Sylvester argues only the final Barker factor, but he fails to show how the delay
prejudiced his case. Sylvester claims that his grandfather, who allegedly died in July 2004,
loaned him $30,000 in cash prior to his arrest, a fact he claims would have supported his
defense, because the government sought to prove that the large sums of money found at
his house originated as drug proceeds. Sylvester fails to show how the absence of his
grandfather’s testimony prejudiced his case, or would have changed the outcome of the
trial.
The government introduced a great deal of damaging evidence against Sylvester
in support of its charges, including drugs seized on his person, more drugs and numerous
firearms and ammunition seized at his home, and collaborating witness testimony. Of the
large sums of money found in Sylvester’s possession and shown to have been transferred
in and out of his possession, no single sum reflected the claimed $30,000 loan. We
conclude that the balance of the Barker factors tips in the government’s favor and we hold
that the district court properly held that Sylvester’s constitutional right to a speedy trial was
not violated.
V.
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The district court’s judgment is AFFIRMED.