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United States v. Ferguson

United States District Court, E.D. Michigan, Southern Division

February 27, 2018

UNITED STATES OF AMERICA, Plaintiff-Respondent,
BOBBY W. FERGUSON (D-2), Defendant-Petitioner.



         I. BACKGROUND

         On 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 motion.

         II. ANALYSIS

         Under 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).

         Defendant 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 evidence.

         A. Procedural Default

         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.").

         By not 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 discussed below.

         B. Jury Instructions

         Defendant takes issue with three aspects of the Court's jury instructions. The Court addresses each argument in turn.

         First, 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.

         The 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).

         Second, 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 defendant.

(Dkt. #406, Pg ID 14428-29).

         The 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.

         Lastly, 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.

         Defendant 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 act.
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 arise.
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 return.

(Dkt. #406, Pg ID 14421-22).

         Although 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.

         Regarding 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 hearing).

         C. Ineffective Assistance of Counsel

         Defendant 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.

         Under 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.

         Id. "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." ...

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