United States v. Ferguson

• Decision Date: 27 February 2012
• Docket Number: No. 10–3070.,10–3070.
• Citation: 669 F.3d 756
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Bryan K. FERGUSON, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

669 F.3d 756

UNITED STATES of America, Plaintiff–Appellee,

v.Bryan K. FERGUSON, Defendant–Appellant.

No. 10–3070.

United States Court of Appeals, Sixth Circuit.

Argued: Nov. 17, 2011.Decided and Filed: Feb. 27, 2012.

ARGUED: Timothy F. Sweeney, Law Office of Timothy Farrell Sweeney, Cleveland, Ohio, for Appellant. Daniel R. Ranke, Assistant United States Attorney, Cleveland, Ohio, for Appellee. ON BRIEF: Timothy F. Sweeney, Law Office of Timothy Farrell Sweeney, Cleveland, Ohio, for Appellant. Daniel R. Ranke, Assistant United States Attorney, Cleveland, Ohio, for Appellee.Before: KENNEDY, GIBBONS, and KETHLEDGE, Circuit Judges.

OPINION

JULIA SMITH GIBBONS, Circuit Judge.

Defendant-appellant Bryan Ferguson appeals the special conditions of supervised release imposed by the United States District Court for the Northern District of Ohio following his guilty plea, pursuant to a plea agreement, to an indictment charging him with possession of child pornography, in violation of 18 U.S.C. § 2252(a)(5)(B). He argues that five of the special conditions imposed by the district court are not narrowly tailored and are not reasonably related to his rehabilitation or protection of the public. Ferguson also appeals the district court's denial of his suppression motion, arguing that the seizure of seventy-eight floppy disks from the house he was occupying violated his Fourth Amendment rights. Finally, Ferguson asserts that he was denied effective assistance of counsel due to his trial counsel's failure to preserve his right to appeal the denial of his motion to suppress under a conditional plea agreement and to advise him about the viability of his Fourth Amendment claim. For the reasons given below, we affirm Ferguson's conviction and sentence.

I.

The events leading up to the seizure of Ferguson's property and the discovery of child pornography involve a tip received by the Youngstown, Ohio, police from a police officer in Arizona indicating that Ferguson might have shared child pornography with his twin brother in Arizona, the condemnation of the residence at 774 Cassius Avenue in Youngstown, Ohio, and Ferguson's prior arrests for housing code violations at 774 Cassius.

Although he did not own the home, Ferguson had been residing part-time and storing his personal property at 774 Cassius, allegedly with the permission of the deceased owner of the property, Ferguson's business partner and friend James Stelma. The home was in a state of disrepair and utility services had been disconnected. In March 2008, Ferguson was arrested and charged with housing-code violations pursuant to various Youngstown housing ordinances. Ferguson pled guilty to littering and failing to keep the occupied portion of the dwelling at 774 Cassius clean and sanitary. As a condition of his probation for the littering offense, Ferguson was instructed to clean up 774 Cassius. The following month, in April 2008, James Stelma's estate was informed that the City of Youngstown would raze the property if it was not brought up to code within thirty days. Ferguson continued to stay in the home and keep his property there until January 8, 2009.

At some point prior to January 8, 2009, an officer in the Youngstown Police Department (“YPD”) was contacted by Detective Pam Edgerton from the Yavapai County Sheriff's Office in Cottonwood, Arizona. Edgerton informed the YPD officer that Byron D. Ferguson, the identical twin of Bryan Ferguson, had charges pending against him relating to alleged child molestation in Arizona, and it was Edgerton's belief that the twins were sexually exploiting children and that Bryan Ferguson was in Youngstown, Ohio. Edgerton also related that the twins were believed to share floppy disks containing pictures of boys posed in a sexual manner. The YPD officer who received the call from Edgerton apparently recognized Ferguson's name because she had previously arrested him at 774 Cassius. In addition, the officer recognized that 774 Cassius had been red-tagged for demolition by the city due to housing-code violations.

On January 8, officers from the YPD and the Mahoning County Sheriff's Office went to 774 Cassius and arrested Ferguson for criminal trespass. While conducting a protective search of the home to ensure that no additional trespassers were present, the officers found and seized several items of Ferguson's property from 774 Cassius, citing their concern that the house was scheduled for demolition, and presumably the fact that the evidence could be destroyed. Among the items seized were: two sets of containers holding seventy-eight 3.5? computer disks, a computer monitor, a Compaq computer, a web cam, two “seemingly stained vibrators,” three cameras loaded with film, four boxes of slides, a VHS tape, a cassette tape, seven 8 mm movie reels, and children's toys. Following the seizure of the evidence, on January 9, 2009, Detective Jason Simon applied for and was issued a search warrant to examine the seized floppy disks for evidence of the crime of pandering sexually-oriented material involving a minor, in violation of Ohio Rev.Code Ann. § 2907.322(A)(5). The case was subsequently referred to the FBI, and on January 21, 2009, FBI special agent Bonnie Hartmann applied for and received a search warrant covering the property seized from 774 Cassius. On April 15, 2009, Ferguson was charged pursuant to a two-count indictment with knowingly transporting computer disks containing child pornography from Arizona to Ohio, in violation of 18 U.S.C. § 2252(a)(1)(A), and possession of computer disks containing child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B).

On June 5, 2009, Ferguson filed a motion to suppress evidence, including the computer disks found to contain child pornography, seized from 774 Cassius on January 8, 2009. In his motion to suppress, Ferguson argued that 774 Cassius was his home at the time of the search and he was therefore entitled to the protections of the Fourth Amendment. He argued that a search warrant was required before his property could be removed from the home and exigent circumstances did not exist to justify the seizure. The district court found that Ferguson had no legitimate expectation of privacy in the premises at 774 Cassius because “[Ferguson] did not own, was not in lawful possession of, and did not lawfully control the premises,” he had previously been convicted for failing to keep the home clean and sanitary, he had been ordered to stay away from the premises, and 774 Cassius was scheduled for demolition. As a result, the district court found that Ferguson lacked standing to challenge the search and denied Ferguson's motion to suppress.

On October 5, 2009, Ferguson pled guilty to Count 2 of the indictment, possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B), and entered into a written plea agreement with the United States Attorney's Office for the Northern District of Ohio. The plea agreement contained a waiver of appeal and post-conviction attack:

Defendant acknowledges having been advised by counsel of Defendant's rights, in limited circumstances, to appeal the conviction or sentence in this case, including the appeal right conferred by 18 U.S.C. § 3742, and to challenge the conviction or sentence collaterally through a post-conviction proceeding, including a proceeding under 28 U.S.C. § 2255. The Defendant expressly waives those rights, except as reserved below. Defendant reserves the right to appeal: (a) any punishment in excess of the statutory maximum; (b) any sentence to the extent it exceeds the maximum of the sentencing range determined under the advisory Sentencing Guidelines, using the Offense Level and Criminal History Category found applicable by the Court. Nothing in this paragraph shall act as a bar to the Defendant perfecting any legal remedies Defendant may otherwise have on appeal or collateral attack respecting claims of ineffective assistance of counsel or prosecutorial misconduct.

By the terms of the appellate waiver provision, Ferguson gave up his right to appeal his conviction or sentence in the case subject to the specific reservation of his right to appeal “any punishment in excess of the statutory maximum” and any sentence in excess of the maximum sentencing range determined under the Sentencing Guidelines by the court. The appellate waiver provision did preserve Ferguson's rights to raise a claim of ineffective assistance of counsel or prosecutorial misconduct on appeal or collateral attack. The plea agreement did not explicitly preserve Ferguson's right to challenge the denial of his suppression motion on appeal. The plea agreement also set forth several conditions of supervised release that the Government would propose at sentencing.

During the proceedings on October 5, 2009, which were conducted before a magistrate judge with Ferguson's consent, the court conducted a colloquy with Ferguson pursuant to Federal Rule of Criminal Procedure 11. During the colloquy, the magistrate judge specifically discussed the waiver of appellate rights contained in the plea agreement:

Now, there is a waiver of appellate rights in your plea agreement which differs from the waiver of appellate rights that I just went over with you. And I'm going to distinguish the two for you. If you went to trial and you were convicted, you would have the right to appeal the merits of your case. Ordinarily you have the right to challenge your conviction by filing an appeal or a writ of habeas corpus if you believe that your guilty plea was somehow unlawful or involuntary.... You also have a statutory right to appeal your sentence under certain circumstances, particularly if you think the sentence is contrary to law.... However, a defendant may waive those rights as part of a plea agreement. And you have entered into a plea agreement which waives some or all of your rights to challenge the judgment of conviction and the sentence by way of appeal or...