UNITED STATES of America, Plaintiff-Appellee, v. David E. FERGUSON, Defendant-Appellant.
No. 10-2623
United States Court of Appeals, Sixth Circuit.
June 5, 2012
Argued: April 19, 2012.
681 F.3d 826
Stryker cross-appealed the district court‘s denial of its motion for prejudgment interest on XL‘s Pfizer settlement. Stryker stated in its brief that it was declining to pursue this appeal against TIG. Nevertheless, Stryker asserts that any pre-judgment interest that it is not able to recoup from XL in light of the panel‘s rulings in the companion case should be borne by TIG as an excess insurer. This is incorrect. Stryker‘s argument is premised on the notion that it has a right to pre-judgment interest as compensation for the delays in paying claims. However, “[t]he purpose of the penalty interest statute is to penalize insurers for dilatory practices in settling meritorious claims, not to compensate a plaintiff for delay....” Arco Indus. Corp. v. Am. Motorists Ins. Co., 233 Mich.App. 143, 594 N.W.2d 74, 76 (1998), rev‘d on other grounds by Griswold Props., LLC v. Lexington Ins. Co., 276 Mich.App. 551, 741 N.W.2d 549, 555 (2007). Stryker has not alleged that TIG has engaged in “dilatory practices” with regard to paying claims. Indeed, Stryker currently argues that TIG has no obligation to Stryker at all. Therefore, Stryker has a right to pre-judgment interest from XL, and only XL. Thus, Stryker may not attempt on remand to hold TIG liable for any pre-judgment interest that has been imposed thus far in this case.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court‘s ruling that the case is not moot, REVERSE the district court‘s ruling that TIG is precluded from raising coverage defenses on remand, and REMAND the case for further proceedings in light of this opinion.
ARGUED: Bradley R. Hall, Federal Defender Office, Detroit, Michigan, for Appellant. Andrew Goetz, Assistant United States Attorney, Detroit, Michigan, for Appellee. ON BRIEF: Bradley R. Hall, Jonathan M. Epstein, Federal Defender Office, Detroit, Michigan, for Appellant. Andrew Goetz, Assistant United States Attorney, Detroit, Michigan, for Appellee.
Before: MOORE, GIBBONS, and ALARCÓN, Circuit Judges.*
OPINION
ALARCÓN, Circuit Judge.
I.
In 2007, Austrian authorities investigating an international child pornography ring alerted the FBI that a computer located in Dundee, Michigan, had been used to download two videos of child pornography from a particular website. The FBI determined that the computer was located in a home solely inhabited by Ferguson. After several unsuccessful attempts to establish contact with Ferguson, FBI agents went to his home on April 10, 2008. After the agents informed Ferguson that they were investigating a child pornography ring, he invited them into his home to conduct an interview. During the interview, the agents requested Ferguson‘s permission to take two hard drives and a laptop computer, which were in plain view, and have them searched for child pornography. Ferguson consented. Forensic examination of the laptop revealed that 2,300 images of child pornography had recently been deleted from the computer, but that 14 images still remained.
On October 14, 2008, a grand jury returned an indictment against Ferguson, charging him with one count of knowing possession of child pornography “[f]rom on or about October 1, 2007 through on or
During a pre-trial hearing, the Government indicated that it would introduce only the 14 undeleted images as substantive evidence of guilt, but that it intended to introduce the 2,300 deleted images as evidence of intent, knowledge, and absence of mistake under
At trial, the Government‘s forensic examiner testified that all of the images, both deleted and undeleted, were downloaded onto the computer between late 2007 and early 2008. The “last accessed” date for each of the 2,300 deleted images ranged between March 28 and April 1, 2008. The 14 undeleted images were all “last accessed” on April 4, 2008 between 11:46 and 11:47 p.m. The expert further testified that the “last accessed” date did not necessarily reflect a date when the image was viewed, but the “last time some program had some interaction with that file that did not change it.” Other possible explanations included an anti-virus scan or copying the image to an external drive. Moreover, while the deletion of the files ‘froze’ their last-accessed dates, the deletion itself could not cause a change in the last-accessed dates; therefore, it was not possible to pinpoint the exact date of deletion of any of the 2,300 images.
Ferguson‘s defense was that his possession of the 14 images on or about April 10, 2008, was not knowing. On direct examination, he admitted that he knowingly downloaded child pornography onto his computer, but claimed that around March 2008, he became “bother[ed]” by its existence on his computer and thus resolved to delete it all. When asked why the folder containing the 14 images of child pornography still remained, Ferguson testified that “[a]pparently it is a folder that I missed. My intention was to delete everything.” Although he could not specify the exact date when he deleted the other 2,300 images, he conceded on cross-examination that it must have been after April 1, 2008. His counsel argued during closing statements that Ferguson could not have “knowingly” possessed the 14 images thereafter.
The Government argued in its closing statement that “even assuming [Ferguson] deleted those [2,300] files, whatever his motive, either concealment or a clean conscious [sic], he still knowingly possessed those [14] images” before then, and that such possession “is sufficient for a finding of [‘]on or about [April 10, 2008,‘]” as charged in the superseding indictment. In finding Ferguson guilty, the district court found that Ferguson‘s deletion of the 2,300 images “physically ... had to occur after April 4, 2008,” and that he therefore must have knowingly possessed the 14 undeleted images on that date. The court also determined that “as defined in this Circuit, [April 4, 2008] is close enough in time” to April 10, 2008 to satisfy the “on or about” language in the superseding indictment.
II.
On appeal, Ferguson argues that he was convicted of a charge different from the one for which he was indicted. This Court reviews de novo whether there was a constructive amendment to the indictment. United States v. Hynes, 467 F.3d 951, 961 (6th Cir.2006). Constructive amendments occur “when the terms of an indictment are in effect altered by the presentation of evidence and jury instructions which so modify essential elements of the offense charged that there is a substantial likelihood that the defendant may have been convicted of an offense other than that charged in the indictment.” United States v. Chilingirian, 280 F.3d 704, 712 (6th Cir.2002) (quoting United States v. Barrow, 118 F.3d 482, 488 (6th Cir.1997)); see also United States v. Ford, 872 F.2d 1231, 1235 (6th Cir.1989) (“An amendment of the indictment occurs when the charging terms of the indictment are altered, either literally or in effect, by prosecutor or court after the grand jury has last passed upon them.” (emphasis omitted) (quoting Gaither v. United States, 413 F.2d 1061, 1071 (D.C.Cir.1969))). “[C]onstructive amendments are deemed ‘per se prejudicial’ because they ‘infringe[] upon the Fifth Amendment‘s grand jury guarantee.‘” Hynes, 467 F.3d at 962 (quoting Chilingirian, 280 F.3d at 712). The burden of proving a constructive amendment is on the defendant. Chilingirian, 280 F.3d at 712.
Ferguson contends that his possession of the 14 images after his deletion of the 2,300 images was a separate and distinct act from his possession of the 14 images before this mass deletion, such that the First Superseding Indictment did not contemplate a conviction resting on this latter conduct. Ferguson argues that even the Government must have embraced this understanding of the indictment, otherwise there would have been no reason not to charge him with possession of the 2,300 deleted images as well. Ferguson contends that “[t]his is the background against which [he] developed a defense strategy. Knowing that his possession of the [14 images] was unintentional beyond the date that he deleted the other images, [he] elected to go to trial and defend himself.” The prosecutor argued that Ferguson‘s knowing possession of the 14 images before the mass deletion was sufficient for conviction. The district court agreed with the Government and found Ferguson guilty based on this conduct. Ferguson argues that this amounted to a constructive amendment of the indictment.
To prevail on his claim, Ferguson must show that the grand jury indicted him only for knowingly possessing the 14 undeleted images after deleting the other 2,300 images on approximately April 4, 2008. We begin by “review[ing] the language of the indictment.” United States v. Kuehne, 547 F.3d 667, 683 (6th Cir.2008).
Moreover, we are not persuaded by Ferguson‘s contention that the Government‘s interpretation of the indictment is controlling. Giving any such deference would clearly infringe upon the grand jury‘s function. See Russell v. United States, 369 U.S. 749, 770 (1962) (“To allow the prosecutor, or the court, to make a subsequent guess as to what was in the minds of the grand jury at the time they returned the indictment would deprive the defendant of a basic protection which the guaranty of the intervention of a grand jury was designed to secure.“). Indeed, the interpretation of an indictment in other contexts is generally limited to its four corners. See United States v. Sharpe, 438 F.3d 1257, 1263 (11th Cir.2006) (“In ruling on a motion to dismiss for failure to state an offense, a district court is limited to reviewing the face of the indictment and, more specifically, the language used to charge the crimes.“); United States v. Landham, 251 F.3d 1072, 1080 (6th Cir.2001) (“[C]ourts evaluating motions to dismiss [an indictment] do not evaluate the evidence upon which the indictment is based.“). For these reasons, Ferguson‘s constructive amendment argument fails.
III.
Ferguson also argues that it was plain error for the district court to impose the mandatory minimum sentence under
Error is committed when there is “some sort of deviation from a legal rule.” Puckett v. United States, 556 U.S. 129, 135 (2009) (citation and internal quotation marks omitted). This Court uses the framework set forth in Taylor v. United States, 495 U.S. 575 (1990) and Shepard v. United States, 544 U.S. 13 (2005) to evaluate the imposition of a mandatory minimum sentence under
The Taylor-Shepard analysis is a two-step process. First, a sentencing court may look “only to the statutory definition[] of the prior offense[], and not to the particular facts underlying th[at] conviction[],” to determine whether a prior conviction qualifies for a federal sentencing enhancement. Taylor, 495 U.S. at 600. If the statutory definition embraces both qualifying and non-qualifying crimes or is otherwise ambiguous, the court, second, may look to the “charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information” to determine whether the qualifying or non-qualifying aspect of the statute was violated. Shepard, 544 U.S. at 26. “[A] sentencing court [cannot] look to police reports or complaint applications” in making this second determination. Id. at 16.
The purpose behind taking this modified categorical approach is to “avoid[] subsequent evidentiary enquiries into the factual basis for the earlier conviction.” Id. at 20. Such an inquiry would abridge “the Sixth and Fourteenth Amendments[‘] guarantee [of] a jury standing between a defendant and the power of the State, and the[ir] guarantee [of] a jury‘s finding of any disputed fact essential to increase the ceiling of a potential sentence.” Id. at 25.
This Court has held that “a PSR prepared for a federal district-court sentencing can never be a record of a convicting state court,” United States v. Wynn, 579 F.3d 567, 577 (6th Cir.2009), and thus it “may not properly be considered [to determine eligibility for a sentence enhancement],” United States v. France, 394 Fed.Appx. 246, 248 (6th Cir.2010). See also United States v. Anglin, 601 F.3d 523, 529 (6th Cir.2010) (“[A]s this court has previously held, factual information contained in a PSR may not be considered in determining the nature of a defendant‘s prior conviction.“). This Court has cautioned against relying on a PSR‘s description of the factual circumstances underlying a prior conviction in determining a defendant‘s eligibility for a sentence enhancement, likening it to descriptions “that one might expect to find in a police report or application for criminal complaint.” United States v. Bartee, 529 F.3d 357, 361 (6th Cir.2008); see also Gardner, 649 F.3d at 445 (applying the holdings in Bartee and Wynn); United States v. Jones, 453 F.3d 777, 780 (6th Cir.2006) (“In applying Shepard, the Sixth Circuit has specifically noted that the pre-sentence report is not among the permissible sources of factual information.” (citing United States v. Sanders, 404 F.3d 980, 989 (6th Cir.2005))). Therefore, the district court erred in relying on the PSR and the police report in
B.
The second prong of plain error review requires the defendant to show that “the legal error [is] clear or obvious, rather than subject to reasonable dispute.” Puckett, 556 U.S. at 135. Where a legal error has been committed, it will be considered “plain” if it is contrary to clearly established law at the time of appeal. Johnson v. United States, 520 U.S. 461, 468 (1997); United States v. Oliver, 397 F.3d 369, 379 (6th Cir.2005); cf. United States v. Alexander, 217 Fed.Appx. 417, 422 (6th Cir.2007) (“The conflicting precedents on the question at hand show that the error was not plain.“). The authority cited above, prohibiting sentence enhancements based on either a PSR or a police report‘s recitation of facts underlying a prior conviction, demonstrates the obviousness of the district court‘s error.
C.
The third prong of plain error review requires “the error [to] have affected the appellant‘s substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the district court proceedings.” Puckett, 556 U.S. at 135 (citation and internal quotation marks omitted). In this appeal, the Government has requested that we take judicial notice of the felony information and plea agreement from Ferguson‘s prior sex offense. It argues that these documents conclusively prove which statutory subsection Ferguson was convicted of violating, that under this subsection he is eligible for the sentence enhancement, and that therefore the district court‘s error did not affect his substantial rights. Ferguson counters that the state court record as a whole does not prove beyond “reasonable dispute” which subsection his prior conviction was based on, as required by
“A sentencing error affects a defendant‘s substantial rights when there is a reasonable probability that, but for the error, [the defendant] would have received a more favorable sentence.” United States v. Wilson, 614 F.3d 219, 223 (6th Cir.2010). This Court has previously held that erroneously using a PSR to determine the defendant‘s eligibility for a sentence enhancement does not affect his substantial rights if such a determination has independent support in sources approved by Shepard. See Jones, 453 F.3d at 780-81 (affirming a sentence enhancement where the district court erroneously relied on the PSR to determine whether the defendant was so eligible, because the complaint documents from the prior conviction nevertheless established his eligibility); United States v. Wyatt, 189 Fed.Appx. 418, 422 (6th Cir.2006) (defendant‘s substantial rights were not affected where the state court indictments, presented for the first time on appeal, demonstrated his eligibility for the sentence enhancement); cf. United States v. Shelton, 290 Fed.Appx. 776, 778 (6th Cir.2008) (affirming sentence enhancement imposed by the district court based on findings in the PSR on de novo review because Shepard documents in the record “independently support[ed]” defen-
1.
“The court may judicially notice a fact that is not subject to reasonable dispute because it ... can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.”
“Judicial records are a source of ‘reasonably indisputable accuracy’ when they record some judicial action such as dismissing an action, granting a motion, or finding a fact. Courts can properly notice prior judicial acts for the purpose of acting upon them.” 21B Charles Alan Wright et al., Federal Practice and Procedure § 5106.4 (2d ed. 2005) (footnote omitted); see, e.g., Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1240 (4th Cir.1989) (“[T]he appellant‘s motion contains copies of the guilty pleas that clearly show that the Coils pled guilty to arson.... We hold that these guilty pleas are ‘not subject to reasonable dispute,’ and that these records are properly subject to judicial notice pursuant to
We limit our analysis of judicial records to those approved by Shepard. The felony information and written plea agreement are indisputably Shepard documents. Shepard, 544 U.S. at 16. Moreover, we may consider the order of probation presented by Ferguson.2 In Michigan state courts, “an order of probation is a tentative and amendable sentence and a final judgment of conviction,” Calhoun v. Macomb Cnty. Circuit Judge, 15 Mich.App. 416, 166 N.W.2d 657, 658 (1968), and “[a] judgment falls within Shepard‘s exception for ‘some comparable judicial record’ to a plea colloquy or agreement,” United States v. Armstead, 467 F.3d 943, 948 (6th Cir.2006) (citation omitted).
2.
We apply the two-step Taylor-Shepard analysis to determine whether these facts, when viewed together, demonstrate that Ferguson “has a prior conviction ... relating to ... abusive sexual conduct involving a minor,”
The first step of the inquiry is unilluminating. Ferguson pleaded to and was convicted of “Criminal Sexual Conduct, 4th Degree.” Michigan‘s fourth-degree criminal sexual conduct statute,
Under the second step of Taylor-Shepard, we look to the charging document to further narrow the crime to which he pleaded. Shepard, 544 U.S. at 16; United States v. Gibbs, 626 F.3d 344, 352 (6th Cir.2010). The felony information, as amended, charged Ferguson with two counts of “engag[ing] in sexual conduct with another person, to wit: [redacted], said victim being at least 13 but less than 16 years old, to wit: [14/15] years old and the defendant being at least 5 years older than the victim,” which substantially tracks the language of—and thus demonstrates charges under—section
Ferguson challenges the use of the felony information to narrow the statute of conviction on three grounds, none of which are convincing. First, he argues that under United States v. Gardner, 649 F.3d 437 (6th Cir.2011), the charging document can never be used to narrow a judgment of conviction where the statute of conviction can be violated in a way that does not
Second, Ferguson relies on United States v. McMurray, 653 F.3d 367 (6th Cir.2011) to argue that a plea of no-contest to the prior conviction prohibits a federal sentencing court from relying on the charging document to narrow the statute of the prior conviction. In McMurray, this Court held that where the defendant entered an “Alford-type guilty plea”4 to the prior conviction, a prosecutor‘s statement of its factual basis could not be relied upon because it was not necessarily admitted by the defendant. Id. at 378-82. Nevertheless, this Court distinguished reliance on the factual basis of the plea provided by the prosecutor from reliance on the elements of the charge because “a defendant who enters an Alford-type guilty plea has ‘necessarily admitted to the elements of the charge.‘” Id. at 380 n. 10. Based on this distinction, this Court recognized that sentence enhancements were still appropriate where “Shepard documents demonstrate with certainty that the defendant [entered an Alford-type guilty plea] to a narrowed charge that would qualify [for a federal sentence enhancement].” Id. at 381. Because a no-contest plea in Michigan similarly requires the defendant to “admi[t] ... all the essential elements of the charged offense,” People v. Kreigh, 165 Mich.App. 697, 419 N.W.2d 59, 60 (1988), McMurray does not bar us from relying on the elements of the crime charged in the felony information to determine Ferguson‘s eligibility for the mandatory minimum sentence.
Finally, in a letter sent to this Court pursuant to
Because the mandatory minimum sentence was ultimately the proper sentence, we conclude that its imposition by the district court did not violate Ferguson‘s substantial rights. Wyatt, 189 Fed.Appx. at 421-22. Given Ferguson‘s inability to meet his burden on this prong, we find it unnecessary to address the fourth prong of plain error review.
IV.
For the foregoing reasons, we affirm Ferguson‘s conviction and his sentence.