                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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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"USA v. Ferguson" (2004). 2004 Decisions. Paper 577.
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                                                             NOT PRECEDENTIAL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).



                                              4
       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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