United States v. Ferguson

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
6-29-2004
USA v. Ferguson
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-2605
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-2605
UNITED STATES OF AMERICA
v.
BRIAN T. FERGUSON,
Appellant
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Crim. No. 02-cr-00101)
Honorable Donetta W. Ambrose, District Judge
Submitted under Third Circuit LAR 34.1(a)
June 28, 2004
BEFORE: AM BRO, BECKER, and GREENBERG, Circuit Judges
(Filed: June 29, 2004)
OPINION OF THE COURT
GREENBERG, Circuit Judge.
This matter comes on before this court on an appeal from a judgment of conviction
and sentence entered on May 29, 2003. The government charged appellant Brian T.
Ferguson in a three-count amended information with intentionally accessing the private
email account of another individual in violation of 18 U.S.C. § 1030(a)(2). He pleaded
not guilty but at the ensuing trial the jury convicted him on all three counts.
The district court calculated Ferguson’s sentencing range as follows. The base
offense level under U.S.S.G. § 2B1.1 was 6. The court then made a 3-level upward
adjustment under U.S.S.G. § 3A1.2(a) because the victim of the offenses was a
government officer, a judge of the Allegheny County Court of Common Pleas and
Ferguson was motivated to commit the offenses because the judge was presiding over his
divorce action and he was unhappy with her rulings. In addition, the court made a 2-level
upward adjustment under U.S.S.G. § 3B1.3 because Ferguson facilitated the commission
of the offenses by using his special skill with computers. Finally, the court made a 2-
level upward adjustment for obstruction of justice under U.S.S.G. § 3C1.1 predicated on
Ferguson’s manufacture of evidence, i.e., creating a false affidavit for his girlfriend
Nancy Cooper. Thus, Ferguson’s total offense level was 13 which, when combined with
his criminal history category of I, yielded a guideline range of 12 to 18 months. The court
sentenced Ferguson to three concurrent custodial terms of 12 months and one day to be
followed by three concurrent one-year terms of supervised release. This appeal followed.
We have jurisdiction under 18 U.S.C. § 3742(a) and 18 U.S.C. § 1291.
Ferguson raises two issues on this appeal:
I. The appellant’s constitutional right to effective counsel was violated
when his appointed trial counsel failed to move the court to enter a
judgment of acquittal pursuant to Rule 29 of the Federal Rules of Criminal
Procedure based on the government’s failure to present competent evidence
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at trial proving an essential element of the offense.
II. The district court was clearly erroneous when relying on the hearsay
testimony presented by the government that the appellant obstructed justice,
which ultimately resulted in the addition of two points to the appellant’s
base offense level score by the district court pursuant to U.S.S.G. § 3C1.1.
Appellant’s br. at i.
We decline to pass on Ferguson’s first point charging ineffective assistance of
counsel in relation to the sufficiency of the evidence as he may raise it in a proceeding
under 28 U.S.C. § 2255. See United States v. Thornton, 327 F.3d 268, 271-72 (3d Cir.
2003). Thus, while we are affirming his conviction and sentence we do so without
prejudice to his ineffective assistance of counsel claim. Our final comment on this point
is that Ferguson has not attempted to raise a sufficiency of the evidence argument under
Federal Rule of Criminal Procedure 29 directly on a plain error basis.
The parties apparently are confused with respect to our standard of review over
Ferguson’s sentencing contention. We note that he seems to believe that our review is
under the deferential clearly erroneous standard. Yet he then makes it clear that his real
complaint is that the court erred in admitting hearsay evidence, thus erring as a matter of
law, an approach which, if accepted, would lead to plenary review in this court. Then he
mixes the standards of review, for in his brief he indicates that “the district court’s
acceptance of the hearsay testimony was clearly erroneous since the court was unable to
properly assess the reliability and accuracy of the evidence presented.” Appellant’s br. at
27. The government, too, is not helpful in setting forth our standard of review as it
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indicates that we review “a district court’s interpretation of the Sentencing Guideline de
novo, and its factual findings for clear error.” Appellee’s br. at 2. Yet, the hearsay point
that Ferguson raises does not involve an interpretation of the guidelines and if the court
correctly considered the hearsay its findings cannot possibly be clearly erroneous.
Ultimately, though, it does not matter whether we exercise plenary review over the
admission of the hearsay, review it on an abuse of discretion basis, or consider it on a
clearly erroneous basis as we find that, no matter which standard we follow, we would
conclude that the court properly admitted the evidence. The hearsay issue relates to
testimony of FBI agent Thomas Grasso at the sentencing hearing reflecting his interviews
of Nancy Cooper. The thrust of his testimony was that Ferguson caused her to change her
account of events relating to this case and to sign a false affidavit at Ferguson’s behest.
While there can be no doubt but that this hearsay testimony would not have been
admissible at a trial, and the government does not contend otherwise, the testimony was
not inadmissible at the sentencing hearing by reason of it being hearsay as the Federal
Rules of Evidence are not applicable at such a hearing. Fed. R. Evid. 1101(d)(3). Indeed,
hearsay often is admitted at sentencing hearings. See United States v. Paulino, 996 F.2d
1541, 1547 (3d Cir. 1993). Instead, the inadmissibility of evidence at sentencing
proceedings is governed by U.S.S.G. § 6A1.3(a) which provides that information
admitted at sentencing must have “sufficient indicia of reliability to support its probable
accuracy.” See United States v. Miele, 989 F.2d 659, 662-65 (3d Cir. 1993).
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In reaching our conclusion that the evidence was admissible, we agree with the
government that the evidence was reliable. First, there is no doubt that Grasso accurately
recounted Cooper’s statements. Moreover, her statements were reliable. As the
government points out, Cooper made her statements to government agents in the course
of a criminal investigation. Obviously, she had every incentive in these circumstances not
to be dishonest and thereby open herself up to a charge of making false statements.
Second, Cooper’s attorney represented to the court that her version of the events would
support the government. Third, her testimony seems not to have been contradicted. Thus,
the court did not err in admitting the hearsay evidence.
For the foregoing reasons we will affirm the judgment of conviction and sentence
entered on May 29, 2003.
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