United States of America v. Irvin Jamar Ferguson, a/k/a Irvin Jamar Fergueson, a/k/a Ervin Shawn Ferguson

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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.*
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
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.
* 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

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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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