United States District Court, E.D. Michigan, Southern Division
ORDER DENYING PETITIONER'S MOTION UNDER 28 U.S.C.
§ 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE
G. EDMUNDS UNITED STATES DISTRICT JUDGE.
March 11, 2013, a jury convicted Petitioner-Defendant Bobby
W. Ferguson of nine of the eleven counts in which he was
charged: one count of RICO conspiracy, 18 U.S.C. §
1962(d); six counts of extortion, 18 U.S.C. § 1951; one
count of attempted extortion, 18 U.S.C. § 1951; and one
count of bribery, 18 U.S.C. § 666(a). (Dkt. # 277). The
Court sentenced Defendant to be imprisoned for a term of 252
months. (Dkt. # 519). The Sixth Circuit affirmed
Defendant's convictions, and the Supreme Court denied his
petition for certiorari. (Dkt. # 570; 575). Defendant timely
filed the instant pro se motion to vacate his
sentence under 28 U.S.C. § 2255. (Dkt. # 585). The
Government has filed a response, and Defendant has filed a
reply as well as exhibits. (Dkt. # 594; 596; 597). For the
reasons set forth below, the Court DENIES Defendant's
28 U.S.C. § 2255, "[a] prisoner in custody under
sentence of a [federal] court . . . claiming the right to be
released . . . may move the court which imposed the sentence
to vacate, set aside or correct the sentence." To
prevail on a Section 2255 motion, the petitioner must allege:
"(1) an error of constitutional magnitude; (2) a
sentence imposed outside the statutory limits; or (3) an
error of fact or law that was so fundamental as to render the
entire proceeding invalid." Mallett v. United
States, 334 F.3d 491, 496-97 (6th Cir. 2003) (internal
quotation marks omitted). Section 2255 motions filed pro
se are liberally construed. See Ratliffv. United
States, 999 F.2d 1023, 1026 (6th Cir. 1993).
argues that the Court should vacate his sentence on the basis
of improper jury instructions, ineffective assistance of
counsel, prosecutorial misconduct, and insufficiency of the
Court first notes that Defendant procedurally defaulted most
of his claims by not raising them on direct appeal. "An
application under § 2255 is an extraordinary remedy and
should not be considered a substitute for direct
appeal." Capaldi v. Pontesso, 135 F.3d 1122,
1124 (6th Cir. 1998). "In the case where the defendant
has failed to assert his claims on direct appeal and thus has
procedurally defaulted, in order to raise them in a §
2255 motion he also must show either that (1) he had good
cause for his failure to raise such arguments and [actual]
prejudice . . ., or (2) he is actually innocent."
Regalado v. United States, 334 F.3d 520, 528 (6th
Cir. 2003) (citing Bousley v. United States, 523
U.S. 614, 622 (1998)). Ineffective assistance of counsel may
in some cases show cause for the default and actual prejudice
from it. See Hall v. Vasbinder, 563 F.3d 222,
236-37. In order to show actual prejudice, the defendant must
show "not merely that the errors at his trial created a
possibility of prejudice, but that they worked to
his actual and substantial disadvantage, infecting
his entire trial with error of constitutional
dimensions." United States v. Frady,
456 U.S. 152, 170 (1982) (emphasis in original). To show
actual innocence, the defendant must show that "it is
more likely than not that no reasonable juror would have
convicted him." Bousley, 523 U.S. at 623
(internal quotation marks and citations omitted). The hurdle
a defendant faces in excusing his procedural default is
intentionally high "for respect for the finality of
judgments demands that collateral attack generally not be
allowed to do service for an appeal." Peveler v.
United States, 269 F.3d 693, 700 (6th Cir. 2001)
(quoting Elzy v. United States, 205 F.3d 882, 884
(6th Cir. 2000)) (internal quotation marks omitted); see
Frady, 456 U.S. at 166 ("[T]o obtain collateral
relief a prisoner must clear a significantly higher hurdle
than would exist on direct appeal.").
raising them on direct appeal, Defendant procedurally
defaulted his improper jury instructions claim, prosecutorial
misconduct claim, insufficiency of the evidence claim, and
sentencing guidelines claim. Defendant presents nothing in
his Section 2255 motion that would excuse his procedural
default. Even if the alleged deficiencies in Defense
Counsel's performance could show cause for the default,
Defendant falls far short of showing that the alleged errors
"worked to his actual and substantial disadvantage,
infecting his entire trial with error of constitutional
dimensions, " as discussed below. Frady, 456
U.S. at 170. Further, Defendant cannot show actual innocence.
As this Court has previously discussed at length, the
evidence at trial weighed heavily in support of the verdicts
of guilt against Defendant. See Dkt. # 462.
Defendant's claims are therefore barred, and even if they
were not barred, these claims would fail on the merits, as
takes issue with three aspects of the Court's jury
instructions. The Court addresses each argument in turn.
Defendant argues that the instruction related to
"Extortion through the Wrongful Use of Economic
Harm" was too expansive and vague. Specifically, he
takes issue with the following language: "Fear exists if
the person experiences anxiety or concern over expected
business loss, financial or job security, or the ability to
keep work or obtain future work." (Dkt. # 406, Pg ID
14423). The Government notes that this instruction is based
on the Seventh Circuit Pattern Criminal Jury Instruction to
18 U.S.C. § 1951 and argues that there is nothing overly
expansive or vague in this instruction.
Court finds that this instruction was not overly expansive or
vague. Defendant offers no legal authority, and the Court is
not aware of any, in support of Defendant's argument to
the contrary. Defendant suggests that the Court did not
sufficiently differentiate extortion from bribery in its
instruction, but he makes no developed argument in support of
his position. Contrary to Defendant's assertion, the
Court specifically instructed the jury that "[e]xtortion
through use of fear of economic harm is the obtaining of
money or property from another person with that person's
consent when the consent is brought about through the
wrongful use of fear of economic harm to the person or his
business unless the person turns over the money or
property" - sufficiently differentiating extortion
through a definition that excludes a case of bribery where
the victim faces no increased risk if he does not pay, but
rather, stands only to improve his lot by paying the
defendant. See Id. (emphasis added); United
States v. Collins, 78 F.3d 1021, 1030 (6th Cir. 1996).
Defendant takes issue with the instruction on the definition
of "corrupt intent" as it pertains to bribery in
violation of 18 U.S.C. § 666(a), though Defendant's
argument is not clear. The Government notes that the
Court's instruction was based on the Seventh Circuit
Pattern Criminal Jury Instruction to 18 U.S.C. §
666(a)(1)(B) and Modern Federal Jury Instructions Criminal
27-A-9 (2011). The Court instructed the jury as follows.
In considering the third element, you should determine
whether it was the public official's intent, at least in
part, to be influenced or rewarded. You need not determine
the subsequent actions of the public official or the business
of his office. In other words, the government does not have
to prove that the public official received the bribe or that
the bribe actually influenced the business of his office. It
is not even necessary that the public official had the
authority to perform the acts sought. Also, if you find that
the public official accepted something with the intent to be
rewarded for a decision already made, the third element is
satisfied, even though the payment was accepted or solicited
after the decision had been made. An illegal bribe may be
paid with the intent to influence a general course of
conduct. It is not necessary for the government to link any
particular payment to any particular action undertaken by the
(Dkt. #406, Pg ID 14428-29).
Court finds that this instruction accords with Sixth Circuit
law and rejects Defendant's challenge. As the Sixth
Circuit has explained, by its terms, 18 U.S.C. § 666
does not require the Government to prove that the public
official "contemplated a specific act when he received
the bribe." United States v. Abbey, 560 F.3d
513, 520 (6th Cir. 2009). Rather, a defendant violates the
statute if he "'corruptly' accepts (or gives, or
conspires to give) something of value intending to be
influenced or rewarded in connection with" some
transaction involving property or services worth at least $5,
000.00. Id. at 521.
Defendant argues that the jury instructions did not comport
with the Supreme Court's intervening decision in
McDonnell v. United States, 136 S.Ct. 2355 (2016).
In that case, the Supreme Court narrowed the definition of
"official act" under the federal bribery statute,
18 U.S.C. § 201(a)(3), which the parties in that case
also used to define "official action" under the
Hobbs Act, 18 U.S.C. § 1951(b)(2). Id. at 2365,
2368. McDonnell challenged the definition of "official
action" in the jury instructions on the ground that it
encompassed virtually all of a public official's
activities, no matter how minor. Id. at 2367. In his
view, an "official act" had to intend to or in fact
influence a specific official decision, "such as
awarding a contract." Id. at 2366 (citation
omitted). The Government, on the other hand, argued that
arranging a meeting, calling another public official, and/or
hosting an event qualified as an "official act."
Id. at 2367. The Court held that arranging a
meeting, talking to another official, or organizing an event
(or agreeing to do so) could not, standing alone, qualify as
an "official act." Id. at 2372.
[A]n "official act" is a decision or action on a
"question, matter, cause, suit, proceeding or
controversy." The "question, matter, cause, suit,
proceeding or controversy" must involve a formal
exercise of governmental power that is similar in nature to a
lawsuit before a court, a determination before an agency, or
a hearing before a committee. It must also be something
specified and focused that is "pending" or
"may by law be brought" before a public official.
To qualify as an "official act, " the public
official must make a decision or take an action on that
"question, matter, cause, suit, proceeding or
controversy, " or agree to do so. That decision or
action may include using his official position to exert
pressure on another official to perform an "official
act, " or to advise another official, knowing or
intending that such advice will form the basis for an
"official act" by another official.
Id. at 2371-72.
argues that his convictions must be vacated because the jury
was improperly instructed on the meaning of "official
act." The Court instructed the jury as follows.
Extortion under color of official right occurs when a public
official, or someone acting with the public official,
receives money or property to which the public official is
not entitled, knowing or believing that the money or property
is being given to the public official in return for the
taking, withholding, or otherwise influencing of an official
Although the official or someone acting with him must obtain
the money or property, the government does not have to prove
that the public official or person acting with him asked for
or first suggested the giving of money or property. In
addition, the payment can occur either before or after the
expected official action.
While [the] official or someone acting on behalf of the
public official must obtain the money or property in return
for the expectation of an official action, the government
does not have to prove that the official actually took or
even intended to take that action, or that the official was
in a position to take the action in return for which payment
was made, or that the official would have acted differently
or have taken the same action even without payment.
The government does not have to prove an explicit promise to
perform a particular act made at the time of the payment.
Rather, it is sufficient if the public official understands
that he is expected as a result of the payment to exercise
particular kinds of influence as specific opportunities
The public official need not have any intention of actually
exerting his influence on the payor's behalf. The
question is whether the official or someone with whom he was
acting obtained money through implicit or explicit promises
that the public official would use his public influence in
(Dkt. #406, Pg ID 14421-22).
the Court did not include a specific definition of
"official act" in the jury instructions,
Defendant's convictions stand because, even assuming
arguendo that the Court erred, any
McDonnell error was harmless. See Neder v.
United States, 527 U.S. 1, 16 (1999) (explaining that
the test for determ ining whether a constitutional error is
harmless is whether it appears beyond a reasonable doubt that
the error did not contribute to the verdict obtained). On the
jury verdict form, the jury specified that it had found
beyond a reasonable doubt that all of Defendant's
extortion convictions rested on a wrongful fear of economic
harm theory (either exclusively or in addition to also
resting on a color of official right theory). See
Dkt. # 277. Defendant's extortion convictions stand as
long as there was sufficient evidence to prove either the
fear of economic harm theory or the color of official right
theory. See United States v. Upshaw, 114 Fed.Appx.
692, 709 (6th Cir. 2004), judgment vacated on other
grounds sub nom. Rice v. United States, 545 U.S. 1136
(2005). McDonnell is inapplicable to the wrongful
fear of economic harm theory. Accordingly, the extortion and
attempted extortion convictions stand.
Defendant's bribery conviction, McDonnell does
not apply to 18 U.S.C. § 666, which does not include the
term "official act" or any similar term.
See 18 U.S.C. § 666 (prohibiting the soliciting
or giving anything of value from or to any person, intending
to be influenced or influence "in connection with any
business, transaction, or series of transactions" of an
organization, government, or agency); United States v.
Boyland, 862 F.3d 279, 291 (2d Cir. 2017) (finding that
18 U.S.C. § 666 is "more expansive than § 201,
" and that the McDonnell standard does not
apply to counts of bribery under 18 U.S.C. § 666);
United States v. Maggio, 862 F.3d 642, 646 n.8 (8th
Cir. 2017), cert, denied, 138 S.Ct. 437 (2017),
reh'g denied, No. 17-6272, 2018 WL 311962 (Jan.
8, 2018) ("McDonnell was about what conduct
rises to the level of an "official act" within the
scope of a different bribery statute. McDonnell had
nothing to do with § 666 . . . ."). In any event,
Defendant never contested that approving, awarding, or
withholding a Department of Water and Sewerage for the City
of Detroit ("DWSD") contract qualifies as an
"official act." At trial, these were the only
official acts at issue, and these acts satisfy
McDonnell's narrower definition of
"official act." See United States v.
Repak, 852 F.3d 230, 253 (3d Cir. 2017) (finding that a
decision to award a contract to develop city infrastructure
is a formal exercise of governmental power that is similar in
nature to a lawsuit, administrative determination, or
Ineffective Assistance of Counsel
argues that Defense Counsel was ineffective because Defense
Counsel (1) failed to challenge the accuracy of the case
agents' testimony and stipulated to inaccurate
interpretations of text messages without Defendant's
consent; (2) failed to explain hearsay objections to the
jury; (3) failed to request additional limiting instructions
regarding fear evidence; (4) failed to reveal prejudicial
inaccuracies in Government's Exhibit LS3-36; (5) failed
to object to the Government's improper closing argument;
(6) failed to enforce Defendant's right to confront
witnesses against him; and (7) failed to raise sentencing
errors on appeal. The Court addresses each argument in turn.
the Sixth Amendment, a defendant has a right to "have
the Assistance of Counsel for his defense." U.S. Const.
Amend. VI. A defendant has a right to "reasonably
effective assistance of counsel." Strickland v.
Washington, 466 U.S. 668, 687 (1984). In
Strickland, the Supreme Court articulated a
two-prong test to show ineffective assistance of counsel:
First, the defendant must show that counsel's performance
was deficient. This requires showing that counsel made errors
so serious that counsel was not functioning as the
"counsel" guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the deficient
performance prejudiced the defense. This requires showing
that counsel's errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.
Unless a defendant makes both showings, it cannot be said
that the conviction . . . resulted from a breakdown of the
adversary process that renders the result unreliable.
"There is a strong presumption that legal counsel is
competent. United States v. Osterbrock, 891 F.2d
1216, 1220 (6th Cir. 1989). In addition, a "reviewing
court must give a highly deferential scrutiny to
counsel's performance." Ward v. United
States,995 F.2d 1317, 1321 (6th Cir. 1993). "The
reasonableness of counsel's performance is to be
evaluated from counsel's perspective at the time of the
alleged error and in light of all the circumstances."
Kimmelman v. Morrison,477 U.S. 365, 384 (1986).
"The defendant must show that there is a reasonable
probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome."