                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 09-5056


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

IRVIN JAMAR FERGUSON,   a/k/a     Irvin   Jamar   Fergueson,   a/k/a
Ervin Shawn Ferguson,

                Defendant – Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:08-cr-00166-TDS-1)


Submitted:   August 18, 2010                 Decided:   September 9, 2010


Before WILKINSON, MOTZ, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


George E. Crump, III, Rockingham, North Carolina, for Appellant.
Anna Mills Wagoner, United States Attorney, Robert A. J. Lang,
Assistant United States Attorney, Winston-Salem, North Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Irvin        Jamar     Ferguson       appeals       his    conviction        for

possession of a firearm by a felon in violation of 18 U.S.C.

§§ 922(g)(1) and 924(e) (2006), which arose from a vehicular

stop where Jamie Evans was the driver and Ferguson was her sole

passenger.



                       I.     Ferguson’s Letters to Evans

            After his arrest, Ferguson wrote several letters to

Evans    that    arguably        attempted       to    influence      Evans’        upcoming

testimony,       and     advocated     that       she    attempt       to     coerce     the

vehicle’s       owner,      Candice   Reeves,          regarding      her     testimony. *

Ferguson sent the letters to Evans’ parents’ home, where her

father, who did not like his daughter socializing with Ferguson,

intercepted      them,      tore   them    up    and    threw    them       away.      Evans

salvaged what she could and turned the partial writings over to

the Government.

            The district court concluded that because no party was

responsible      for     destroying       the    letters,   the       remaining       pieces

could be admitted into evidence.                      On appeal, Ferguson argues

that Fed. R. Evid. 106 required the district court to exclude


     *
        Trial testimony established that Reeves gave                                   Evans
permission to borrow her vehicle on the night in question.



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the letter fragments.           Ferguson misapprehends Rule 106, and its

so-called “rule of completeness.”

            The government has a duty to preserve evidence that

(1) possesses an apparent exculpatory value, and (2) is of such

a nature that the defendant would be unable to obtain comparable

evidence by other available means.                        California v. Trombetta,

467 U.S.    479,       489   (1984).        In    certain    cases,      Rule     106    may

counsel in favor of exclusion where the Government improperly

preserves evidence, saving only those portions of a writing or

recording     that       are    helpful      to      its     case       and     destroying

potentially       exculpatory        portions.             Cf.     United     States      v.

Yevakpor, 419 F. Supp. 2d 242, 246-47 (N.D.N.Y. 2006).                            However,

if   evidence     is    destroyed,     the       defendant       must   prove    that    the

government acted in bad faith.                   Arizona v. Youngblood, 488 U.S.

51, 58 (1988).

            Here,       Ferguson     does    not     argue       that   the     Government

failed to properly preserve the evidence that it had, or that it

improperly destroyed evidence that was exculpatory.                           Nor does he

state how the admitted portions of his letter were taken out of

context, or how the missing portions would help bring them into

focus.     Instead, Ferguson takes a literal view of Rule 106, and

argues   that     because      the   letters       were    not    available      in   their

complete    and    unabridged        form    to    anyone,       they   should     not    be

admitted into evidence under any circumstance.

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             We reject Ferguson’s view, as it is not supported by

the law.      Because the Government was wholly uninvolved in the

partial destruction of Ferguson’s letters, and did not act in

bad faith, the district court did not abuse its discretion in

admitting the remaining pieces of the letters into evidence.

See United States v. Lancaster, 78 F.3d 888, 896 (4th Cir. 1996)

(“Decisions regarding the admission or exclusion of evidence are

committed to the sound discretion of the district court and will

not be reversed absent an abuse of that discretion.”).



                   II.   Ferguson’s Coram Nobis Petition

             After Ferguson’s conviction, but before the time he

was sentenced, the Supreme Court issued its ruling in Arizona v.

Gant, 129 S. Ct. 1710 (2009).            In that case, the Court set forth

new rules governing warrantless searches arising out of vehicle

stops.      See 129 S. Ct. at 1719 (A search of a vehicle incident

to arrest is justified “only when the arrestee is unsecured and

within reaching distance of the passenger compartment at the

time   of    the   search”   or   when    “it   is   ‘reasonable   to   believe

evidence relevant to the crime of arrest might be found in the

vehicle.’”).

             Based exclusively on this authority, Ferguson filed a

corum nobis petition in the district court seeking to have the

firearm found in the glove box suppressed and his conviction

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vacated.       The district court denied his motion, finding that he

did not have standing to contest the search because the vehicle

did not belong to him and he had otherwise failed to establish a

reasonable expectation of privacy in it.                              We conclude that the

district court did not commit reversible error.

               A    writ    of    coram      nobis        may    be   granted       to    vacate    a

conviction “after the sentence has been served.”                                     See United

States    v.       Mandel,       862       F.2d    1067,        1075-76     (4th     Cir.     1988)

(citations         omitted).           A   court       can    grant     this      “extraordinary

remedy” only when an error “of the most fundamental character”

has occurred, and no other remedy is available.                              Id. at 1076.

               Here,       it    is    clear       that      Ferguson       had    not     finished

serving his sentence, exhausted his direct appeal, or exhausted

his remedies under 28 U.S.C. § 2255 (West Supp. 2010) at the

time he filed his petition.                       While these facts alone could have

ended    the       district      court’s       inquiry,         we    are    also    unpersuaded

that challenges to the legality of a search, such as the one

Ferguson made below, involve the sort of fundamental error that

is required for a court to grant coram nobis relief.

               Thus,       it     is       clear       that     coram       nobis        relief    is

inappropriate under these circumstances, and we accordingly need

not     evaluate       the       lower        court’s         determinations             concerning

Ferguson’s standing, or lack thereof.                             Cf. Carlisle v. United

States, 517 U.S. 416, 429 (1996) (“[I]t is difficult to conceive

                                                   5
of a situation in a federal criminal case today where a writ of

coram   nobis    would     be   necessary     or    appropriate.”       (internal

quotation marks omitted).         Moreover, even if construed as simply

seeking a reversal on direct appeal, Ferguson’s pleadings make

clear that he is not entitled to relief.                 Ferguson concedes in

his brief that he did not move to suppress the firearm before

trial, as required by Fed. R. Crim. P. 12(b)(3)(C).                    Therefore,

he is not entitled to relief on this point, regardless of Gant.

See Fed. R. Crim. P. 12(e) (a party “waives any Rule 12(b)(3)

defense, objection, or request not raised by the deadline the

court   sets    under    Rule   12(c)   or   by    any   extension     the   court

provides”); see also United States v. Whorley, 550 F.3d 326, 337

(4th Cir. 2008).

           Accordingly, we affirm the district court’s judgment.

We   dispense   with     oral   argument     because     the   facts   and   legal

contentions are adequately presented in the materials before the

court and argument would not aide the decisional process.



                                                                         AFFIRMED




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