United States v. Ferguson

• Decision Date: 05 June 2012
• Docket Number: No. 10–2623.,10–2623.
• Citation: 681 F.3d 826
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. David E. FERGUSON, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

681 F.3d 826

UNITED STATES of America, Plaintiff–Appellee,

v.David E. FERGUSON, Defendant–Appellant.

No. 10–2623.

United States Court of Appeals, Sixth Circuit.

Argued: April 19, 2012.

Decided and Filed: June 5, 2012.

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.

David Ferguson was found guilty in a bench trial of knowingly possessing 14 images of child pornography and sentenced to ten years imprisonment, the mandatory minimum sentence under 18 U.S.C. § 2252A(b)(2). Ferguson timely appealed from both the conviction and the sentence. He argues that the district court (1) constructively amended the indictment by finding him guilty based on conduct that was not the subject of the indictment, and (2) committed plain error by basing his sentence enhancement on facts contained in the Presentence Investigation Report. We have jurisdiction under 28 U.S.C. § 1291, and we affirm his conviction and sentence.

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 about April 10, 2008.” On June 10, 2010, a grand jury returned a superseding indictment against Ferguson, charging him with one count of knowing possession of child pornography “on or about April 10, 2008.” Other minor changes were also made, none of which are relevant to this appeal.

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 Fed.R.Evid. 414 or, in the alternative, 404(b). Ferguson's counsel agreed to this, stating his understanding that the fact of their deletion from the computer “[was] why the indictment was amended and superseded.” In response, the Government conceded that “the actual offense alleged in the [superseding] indictment ... is limited to particular images that he knowingly possessed on the date that he gave consent for the officers to take his computer,” and that it “[could not] prove that [Ferguson] knowingly intended to possess the [deleted] images ... on the date that he gave consent.”

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, 2010] is close enough in time” to April 10, 2008 to satisfy the “on or about” language in the superseding indictment.

The probation department prepared a Presentence Investigation Report (“PSR”). It provides that Ferguson had previously pleaded no contest to two counts of “Criminal Sexual Conduct, Fourth Degree—Coercion,” but did not specify the statute that was violated. The PSR cited a police report which described the conduct underlying the prior convictions as involving multiple sexual encounters with two minors. The PSR concluded that Ferguson was subject to a ten-year minimum sentence under 18 U.S.C. § 2252A(b)(2) for having a prior conviction involving sexual abuse of a minor. Ferguson objected to this conclusion, but on grounds not relevant to this appeal. The district court sentenced Ferguson to the ten-year statutory minimum sentence. Ferguson timely appealed the judgment of conviction and the sentence.

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). The First Superseding Indictment made no distinction between his possession of the 14 images before and after the mass deletion. Nor does an allegation of the date of possession itself imply a distinction. “When ‘on or about’ language is used...