United States v. Corey Ferguson

NOT FOR FULL-TEXT PUBLICATION
File Name: 10a0423n.06
FILED
No. 08-5712 Jul 13, 2010
LEONARD GREEN, Clerk
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
ON APPEAL FROM THE
v. UNITED STATES DISTRICT
COURT FOR THE WESTERN
COREY FERGUSON, DISTRICT OF KENTUCKY

Defendant-Appellant,
__________________________________/

BEFORE: SUHRHEINRICH, COLE and GILMAN; Circuit Judges.

SUHRHEINRICH, Circuit Judge. Defendant Corey Ferguson appeals his jury conviction

and sentence for conspiracy and distribution of cocaine. He also appeals the forfeiture of $5,026.00

seized from his residence. We AFFIRM Ferguson’s conviction and sentence, but REVERSE the

order of forfeiture.

I. Background

In 2003, the Bowling Green/Warren County Drug Task Force and Bureau of Alcohol,

Tobacco, Firearms, and Explosives began investigating the Fadz 4 Days Barber Shop in the Bowling

Green, Kentucky area for drug-trafficking activity. On May 3, 2006, Ferguson was indicted along

with seven other individuals for various drug-trafficking offenses and a warrant for his arrest was

issued. On July 12, 2006, the grand jury returned a superseding indictment charging Ferguson in

three counts: (1) conspiracy to manufacture crack cocaine and to distribute powder and crack

cocaine from June 1, 2003, to February 17, 2006, in violation of 21 U.S.C. § 846, and to knowingly
possess with intent to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1) (Count 1); (2)

manufacturing crack cocaine between January 28, 2006, and February 8, 2006, in violation of 21

U.S.C. § 841(a)(1) (Count 17); and distributing powder cocaine on February 1, 2006, in violation

of 21 U.S.C. § 841(a)(1) (Count 18). In addition, the Government sought forfeiture of certain items

seized pursuant to 21 U.S.C. § 853 (Count 28).

Ferguson filed a motion to suppress the evidence seized from his home during the execution

of a state search warrant. He also filed a motion in limine to exclude cash and marijuana seized from

Ferguson’s Mt. Lebanon Church Road residence. The district court granted in part and denied in

part the motion to suppress, and denied the motion in limine. Ferguson was tried before a jury. The

Government presented twelve witnesses, including codefendants Jerome Shanklin, the owner of the

barber shop, Richard Cox, a barber in the shop, and William Downey, a cooperating individual. The

district court submitted six special verdict forms concerning the offenses of conspiracy to

manufacture crack cocaine, conspiracy to distribute powder cocaine, conspiracy to distribute

marijuana, aiding and abetting in the distribution of crack cocaine, and aiding and abetting in the

distribution of powder cocaine. The forfeiture count was not considered by the jury. The jury

convicted Ferguson of conspiracy to distribute between 500 grams and five kilograms of powder

cocaine pursuant to Count 1, and distribution of more than 500 grams of cocaine pursuant to Count

18. The jury acquitted him on Count 17. The district court denied his motion for judgment of

acquittal or new trial.

Several months later, the prosecutor informed Ferguson’s counsel that she recently learned

that the Assistant United States Attorney (AUSA) formerly assigned to the case had made an offer

of consideration for trial testimony to Downey. Ferguson filed another motion for a new trial as a

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result. The district court denied the motion without a hearing, concluding that there was no

reasonable probability that the outcome of the proceedings would have been different had Ferguson

known of the offer.

Ferguson also moved for return of $5,026 seized from his residence pursuant to the search

warrant. The district court denied the motion without a hearing and ordered the monies forfeited.

The presentence report calculated Ferguson’s guidelines range at 360 months to life

imprisonment. The district court reduced Ferguson’s sentence to adjust for the disparity among his

codefendants. After considering the 18 U.S.C. § 3553(a) factors, the court imposed a 300-month

sentence.

This appeal follows.

II. Analysis

A. New Trial Motion

Ferguson argues that the district court erred in refusing to grant him a new trial pursuant to

Fed. R. Crim. P. 33 based on the government’s failure to disclose its cooperation agreement with

Downey. This Court reviews the district court’s decision to deny a motion for new trial based on

newly discovered evidence or Brady violations for abuse of discretion. United States v. White, 492

F.3d 380, 408 (6th Cir. 2007).

Brady v. Maryland requires the government to turn over evidence favorable to the accused

and material to guilt or punishment. Brady v. Maryland, 373 U.S. 83, 87 (1963). This includes

evidence that could be used to impeach the credibility of a witness. Giglio v. United States, 405 U.S.

150, 154-55 (1972); Schledwitz v. United States, 169 F.3d 1003, 1011 (6th Cir. 1999). Not every

failure to disclose favorable evidence requires a new trial, however. Schledwitz, 169 F.3d at 1011.

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Favorable evidence must be material, “and constitutional error results from its suppression by the

government, ‘if there is a reasonable probability that, had the evidence been disclosed to the defense,

the result of the proceeding would have been different.’” Kyles v. Whitley, 514 U.S. 419, 433 (1995)

(quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). See also Strickler v. Greene, 527 U.S.

263, 281-82 (1999). This means that the defendant must show that the new evidence “could

reasonably be taken to put the whole case in such a different light as to undermine confidence in the

verdict.” Kyles, 514 U.S. at 435. See also Bell v. Bell, 512 F.3d 223, 236-37 (6th Cir. 2008) (en

banc) (same), cert. denied, 129 S. Ct. 114. In the context of impeachment evidence, “[w]hen the

‘reliability of a given witness may well be determinative of guilt or innocence,’ the nondisclosure

of evidence affecting credibility falls within” the Brady rule requiring a new trial. Giglio, 405 U.S.

at 154. The good faith or bad faith of the government is irrelevant in a Brady analysis. Brady, 373

U.S. at 87; see also United States v. Agurs, 427 U.S. 97, 110 (1976) (“Nor do we believe the

constitutional obligation is measured by the moral culpability, or the willfulness, of the prosecutor.”);

White, 492 F.3d at 409 (“It matters little whether the government suppresses the evidence out of

oversight or guile.”).

At trial, the Government introduced Downey’s plea agreement, which explicitly stated that

“[n]o other promises or inducements have been made” to Downey below the twenty-year minimum

in exchange for his testimony against Ferguson. However, four months after his conviction, AUSA

Jo Lawless, the trial prosecutor, sent Ferguson’s counsel a letter disclosing for the first time that the

former AUSA assigned to the case, Brian Butler, agreed to consider Downey for a sentence less than

twenty years if he testified truthfully during any trial (the “cooperation agreement”). According to

Lawless, Butler had also agreed to exclude the cooperation agreement from the written plea

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agreement. Ferguson had requested such Brady material prior to trial. At Downey’s sentencing,

which was held after Ferguson’s conviction, the Government moved to reduce Downey’s sentence

below twenty years consistent with the cooperation agreement, and the district court reduced

Downey’s sentence to eighteen years.

Downey testified at trial that nothing in the plea agreement promised him a sentence of less

than twenty years. On cross-examination, Downey acknowledged that he was looking at a mandatory

minimum of twenty years, but that he was testifying in hopes of getting a sentence below twenty

years based on a U.S.S.G. § 5K1.1 reduction. On re-direct, Downey testified that the plea agreement

contained no promise of a § 5K1.1 motion.

The cooperation agreement is inconsistent with the written plea agreement’s statement that

“[n]o other promises or inducements have been made to Defendant in connection with this case.”

The cooperation agreement therefore was impeachment evidence. However, Downey’s reliability

was not “determinative of guilt or innocence,” so a new trial was not required under Giglio. Downey

was only one of twelve government witnesses, six of whom testified concerning their knowledge of

Ferguson’s drug dealing. Although Downey testified that he was involved in two powder cocaine

transactions with Ferguson in January 2006, Downey unlike several others, had no direct drug deals

with Ferguson, but dealt only through a middleman.

On the other hand, Shanklin, who comes the closest to being characterized as a “key witness”

in this case, testified that he received cocaine directly from Ferguson three times - - one half kilo

and then one kilo in January, and another half kilo on February 1, 2006. The jury viewed videotapes

and cellular telephone records that corroborated Shanklin’s description of the February 1 incident.

The jury found Ferguson guilty of Count 18 (the February 1, 2006 transaction) as well as the

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conspiracy charge for that time period. Shanklin’s testimony supports the jury’s verdict here. Cf.

Harris v. Lafler, 553 F.3d 1028, 1033 (6th Cir. 2009) (holding that the state’s failure to disclose in

a murder trial three statements police made to its key witness, including a promise that he would be

released if he implicated the defendant, was material under Brady where the witness “was the key

witness for the prosecution” who gave an eyewitness account that was the only evidence that directly

linked the defendant as the gunman); see also id. at 1034 (noting that “[c]onsiderable authority from

the Supreme Court and our court indicates that a defendant suffers prejudice from the withholding

of favorable impeachment evidence when the prosecution’s case hinges on the testimony of one

witness”).

Ferguson also argues that the evidence in question could have been used to impeach Shanklin

and Cox because all of the informant-witnesses entered into plea agreements containing the same

language as paragraph 20 of Downey’s plea agreement. This argument is unavailing because both

Cox and Shanklin testified that the possibility of a § 5K1.1 motion appeared in their plea agreements.

In short, the district court did not abuse its discretion in denying Ferguson’s motion for a new trial

based on the undisclosed impeachment evidence.

Ferguson also claims that a new trial is required because the Government knowingly relied

on perjured testimony at trial. A relaxed standard applies in cases where the prosecution knowingly

uses perjured testimony. United States v. O’Dell, 805 F.2d 637, 641 (6th Cir. 1986) (citing Bagley,

473 U.S. 667 at 678). In such a case, “the conviction will be set aside ‘if there is any reasonable

likelihood that the false testimony could have affected the judgment of the jury.’” Id. (quoting

Bagley, 473 U.S. at 678).

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 But a new trial is not required under this standard either. As stated, Downey was not the key

witness against Ferguson. Cf. Giglio, 405 U.S. at 154-55 (holding that a new trial was required after

former AUSA failed to disclose to the trial prosecutor that he promised a key witness that the witness

would not be prosecuted if he cooperated and the government’s case depended almost entirely on

that witness’s testimony). As also stated above, Shanklin’s, as well as Cox’s testimony, easily

supports the jury’s verdict. Thus, it cannot be said that there was “any reasonable likelihood that the

false testimony could have affected the judgment of the jury.” Rosencrantz v. Lafler, 568 F.3d 577,

584, 589 (6th Cir. 2009) (internal quotation marks and citation omitted), (holding that the

uncorrected false evidence by key prosecution witness denying pretrial meeting with the prosecutor

would likely fail to “substantially influence” the jury verdict given witness’s consistent identification

of the defendant, and the impeachment evidence already in the record), cert. denied, 78 U.S.L.W.

3642 (U.S. May 3, 2010).

Nor is there any indication that AUSA Lawless knew of the promise to consider a departure

at the time of trial such that it could be said she knowingly used perjured testimony. Indeed, it is she

who brought the cooperation agreement to Ferguson’s attention. Cf. Napue v. Illinois, 360 U.S. 264

(1959) (holding that where the murder prosecution against the petitioner was based principally on

the testimony of a witness who falsely testified that he had received no promise of consideration in

return for his testimony, and the prosecutor knew this but did nothing to correct it, a new trial was

required because the jury’s estimate of his testimony might have been determinative of guilt or

innocence); Schneider v. Estelle, 552 F.2d 593 (5th Cir. 1977) (new trial required where the state’s

chief witness, a police officer, knowingly testified falsely at trial).

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 A hearing was not necessary. United States v. White, 492 F.3d 380 (6th Cir. 2007), does not

support Ferguson. There, the defendants were deprived of a number of documents they alleged

contained exculpatory information. Id. at 413. This court held that the defendants were entitled to

an evidentiary hearing because “the supporting evidence detailed the government’s rather great

lengths to deny Defendants access to the requested documents,” which “effectively foreclosed [the

defendants] from making the requisite showing that the documents were material and favorable . .

. and that the suppression prejudiced them.” Id. By contrast, the trial prosecutor here, AUSA

Lawless, disclosed the information as soon as she discovered it. United States v. Frost, 125 F.3d 346

(6th Cir. 1997), is equally distinguishable. There, we held that an evidentiary hearing was necessary

because it was unclear from the record whether the testimony of a government expert who was not

called could have established that the defendant, who had been charged with mail fraud in

connection with an alleged scheme to defraud the government of tuition, actually engaged in

common billing practices which would have negated an intent to defraud. Id. at 383-84. Here, no

further inquiry was necessary because the Government disclosed the Brady material, and the district

court was able to assess the impact of the violation on the jury verdict.

In sum, then, the district court did not abuse its discretion in denying Ferguson’s motion for

new trial or in denying his request for an evidentiary hearing.

B. Motion to Suppress

Ferguson claims that the evidence obtained at the Mt. Lebanon Church Road address should

have been suppressed because (1) there was no nexus between the address and the criminal activity

to support probable cause for the search warrant, (2) the affidavit contained false statements, and (3)

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the items taken outside the scope of the search warrant were not of an immediately apparent

incriminating nature.

Detective Craig Sutter, an officer who was assigned to the drug task force involved in the

investigation, stated in his affidavit in support of the application for the search warrant of the Mt.

Lebanon Church Road residence that he and several officers arrived at 2946 Mt. Lebanon Church

Road, Bowling Green, Kentucky, at approximately 8:30 a.m., on May 15, 2006, to execute a federal

arrest warrant for Ferguson. Sutter knocked on the front door, but no one answered. Sutter heard

music coming from the residence and saw someone peer through the blinds of a front window.

Sutter also observed two pieces of mail bearing Ferguson’s name in plain view inside a black Ford

Explorer associated with Ferguson that was parked in the driveway. The officers waited

approximately forty-five minutes before leaving.

The affidavit further stated that at about 10:10 a.m., dispatch received a phone call from

Corey Ferguson’s neighbor at 3013 Mt. Lebanon Road, and that “[t]his neighbor advised that she

saw Corey Ferguson leave 2946 Mt. Lebanon Road in a red Dodge pickup truck that was towing a

trailer.” (Emphasis added.) Sutter attested that at 10:17 a.m. another trooper stopped the red pickup

and that Corey Ferguson was in this vehicle. The trooper placed Ferguson under arrest, and during

a search incident to arrest, the trooper found a 12 gauge shotgun shell in Ferguson’s pants pocket.

The affidavit noted that Ferguson was a convicted felon, and that the affiant knew Ferguson to be

engaged in drug trafficking. Lastly, Sutter stated that based on his experience and training, he knew

that drug traffickers are frequently armed and often maintain firearms in their homes.

A Kentucky state-court magistrate judge issued a search warrant for the Mt. Lebanon Road

residence. It authorized the officers to seize “12 gauge shotgun shells, [a] 12 gauge shotgun, [and]

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documentation regarding the purchase of a 12 gauge shotgun.” While executing the search warrant,

the officers seized $5,026 in cash, five shotgun shells, one baggie of marijuana, a safe deposit key,

various documents, four rifle rounds of ammunition, four surveillance cameras, and a JVC

television.

The district court concluded that the warrant was valid because “the discovery of Ferguson’s

illegal possession of ammunition minutes after leaving the residence at 2946 Mt. Lebanon Church

Road established probable cause to believe that additional evidence of his possession of firearms or

ammunition would be found in that residence.”

“In reviewing a district court’s denial of a motion to suppress evidence, this court reviews

the district court’s findings of fact for clear error, and its legal conclusions de novo.” United States

v. Gillis, 358 F.3d 386, 390 (6th Cir. 2004). Any error is subject to harmless-error review. United

States v. Garcia, 496 F.3d 495, 512 (6th Cir. 2007) (citing Chapman v. California, 386 U.S. 18, 22

(1967); Fed. R. Crim. P. 52(a)).

The district court’s conclusion that the state search warrant was valid is problematic. First,

as Ferguson points out, possession of ammunition by a felon is not in fact illegal under Kentucky

law. Sutter conceded this at the suppression hearing. Yet the Government relies in its brief on

Ferguson’s “illegal possession of ammunition” in justifying the validity of the search warrant.

Second, the neighbor did not actually identify Ferguson as the individual who left the Mt. Lebanon

residence. Rather, the testimony at the suppression hearing revealed that the neighbor simply told

the dispatcher that a black male entered a red pickup truck. Thus, Sutter’s statement in the affidavit

was not accurate. This inaccuracy is material because it was the key fact connecting Ferguson to the

residence during the relevant time period, and therefore linking the shotgun shell to the suspected

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possession of firearms in the residence. In addition, Sutter testified at the suppression hearing that

he had not conducted surveillance on the Mt. Lebanon residence, and both he and Special Agent

Hayes testified that they had no direct evidence that Ferguson was dealing drugs out of this

residence. Sutter also stated that he had no information that Ferguson kept firearms in his home.

In short, the facts connecting criminal activity to the Mt. Lebanon Road residence are scant.

Probable cause for the search could have been based only on the factual predicate that Ferguson left

this residence and minutes later was found with a shotgun shell in his pocket. However, the affidavit

did not conclusively establish that the black man that the neighbor saw leaving the Mt. Lebanon

residence in a red truck was Ferguson.1 Although law enforcement were probably justified in

drawing the inference that the “black man” was indeed Ferguson, this inference should have been

revealed to the magistrate judge so that the judge could make an independent determination of

probable cause rather than merely rubber stamping the conclusions of Sutter.

Nevertheless, we need not decide whether the search warrant was valid. Given the

overwhelming evidence of Ferguson’s guilt on the cocaine charges, any error was harmless here.

See Garcia, 496 F.3d at 512-13 (holding harmless erroneous admission of items not listed in search

warrant whose illegality was not immediately apparent because of abundant evidence to convict

defendant of drug trafficking conspiracy).

1
Even if this proposition were conclusively established, it would not necessarily equal
probable cause. See United States v. McPhearson, 469 F.3d 518, 524-25 (6th Cir. 2006) (rejecting
the government’s argument that the defendant’s arrest outside his residence with drugs on his person
was sufficient to establish probable cause because it assumed that the defendant was likely to have
stored drugs in that same residence; additional facts were needed to support such an inference).

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 Concerning the items seized, the parties agree that the cash, the safe deposit key, the four

surveillance cameras, and the JVC television were outside the scope of the search warrant.2 The

Government maintains that these items nonetheless were properly seized under the plain-view

exception to the warrant requirement. “Seizing items beyond the scope of a warrant’s authorization

violates the Fourth Amendment rights of the subject of a search.” Shamaeizadeh v. Cunigan, 338

F.3d 535, 554 (6th Cir. 2003) (citing Andresen v. Maryland, 427 U.S. 463, 480 (1976)). On the

other hand, the plain-view doctrine “authorizes seizure of illegal or evidentiary items visible to a

police officer who has access to the object, has some prior Fourth Amendment justification, and who

has probable cause to suspect the item is connected with criminal activity.” Illinois v. Andreas, 463

U.S. 765, 771 (1983) (citation omitted). It cannot be said that the incriminating nature of these items

was immediately apparent given that the officers were purportedly searching for evidence that

Ferguson illegally possessed a firearm. See Shamaeizadeh, 338 F.3d at 554 (stating that to invoke

plain-view doctrine, the evidence must be in plain view and of an “immediately incriminating”

character). Again though, the introduction of this evidence at trial was harmless.

Notwithstanding, as discussed below, we find that the $5,026 was improperly forfeited.

C. Motion in Limine

Ferguson challenges the district court’s ruling denying his request to exclude the baggie of

marijuana and the cash. He complains that there was nothing relevant about a personal-use amount

of marijuana or $5,026 in assorted coins and one-dollar, two-dollar, and five-dollar bills found in a

water-cooler sized plastic jar. The district court acknowledged that the marijuana was found after

2
Ferguson does not contest the seizure of the baggie of marijuana or the shotgun and rifle
rounds beyond his general challenge to the validity of the search warrant.

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the time frame of the conspiracy and was only a small amount, but stated that “Ferguson’s access

to the marijuana remains relevant to the charges against him,” and further noted that large amounts

of cash are often associated with drug trafficking.

Relevant evidence is “evidence having any tendency to make the existence of any fact that

is of consequence to the determination of the action more probable or less probable than it would

be without the evidence.” Fed. R. Evid. 401. Evidence which is not relevant is not admissible. Fed.

R. Evid. 402. A district court’s evidentiary rulings as to relevance and unfair prejudice are reviewed

for abuse of discretion. United States v. Whittingon, 455 F.3d 736, 738 (6th Cir. 2006).

Furthermore, an erroneous admission of evidence that does not affect the substantial rights of a party

is deemed harmless. Id. (citations omitted).

Ferguson cannot show any prejudice as to the marijuana, because the jury returned a special

verdict finding him not guilty of the marijuana count. So any error was harmless. The same is true

for the cash, given the ample evidence of Ferguson’s guilt. However, as for the cash, the lack of

relevance at trial is relevant to the question of forfeiture, as discussed below.

D. Sufficiency of the Evidence

Ferguson argues that the evidence did not establish a conspiracy between himself and the

drug dealers that he supplied. He further complains that there was no proof that the substance he

provided to Shanklin on February 1, 2006, was cocaine.

A jury’s verdict will be upheld if, “after viewing the evidence in the light most favorable to

the prosecution, any rational trier of fact could have found the essential elements of the crime beyond

a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). Circumstantial evidence will

suffice, and “such evidence need not exclude every possible hypothesis except that of guilt.” United

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States v. Jackson, 55 F.3d 1219, 1225 (6th Cir. 1995). All inferences are drawn in favor of the jury’s

verdict. United States v. Maliszewski, 161 F.3d 992, 1006 (6th Cir. 1998).

To sustain a drug conspiracy conviction under 21 U.S.C. § 846, the government must prove

beyond a reasonable doubt that (1) there was an agreement to violate drug laws; (2) the defendant

had knowledge of and intent to join the conspiracy; and (3) he participated in the conspiracy. United

States v. Gardner, 488 F.3d 700, 710 (6th Cir. 2007).

Shanklin testified that illegal drug dealing was occurring at the barber shop. The conspiracy

started with marijuana and escalated to cocaine and crack cocaine. Shanklin stated that he received

cocaine from Ferguson on three occasions–twice in January 2006 and once in February 2006.

Shanklin described how, on February 1, 2006, Ferguson instructed Shanklin to meet him at a parking

lot to exchange the cocaine that Ferguson was fronting him, and to call Ferguson at a friend’s house

after Shanklin had obtained the money from an individual named Derrick Lander. Surveillance

cameras captured Shanklin’s delivery of the cocaine to Lander, Lander’s delivery of a box with

$12,000 to Shanklin in return, and Shanklin’s delivery of the box to Ferguson’s vehicle.

From the mere fact that the box contained a sizeable sum of money, $12,000, it can easily

be inferred that Ferguson was paid for cocaine and not something else. In fact, a dealer named

Antonio Wilson testified that Ferguson charged more for his cocaine than other dealers because it

was of a higher quality.

Cox testified that Ferguson fronted him cocaine with the understanding that Cox would pay

Ferguson once Cox sold the cocaine. And, the surveillance cameras in the barber shop recorded a

conversation between Cox and Shanklin discussing Ferguson as Cox’s supplier.

In short, the evidence was sufficient to support the jury verdicts on Counts 1 and 18.

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 E. Sentencing Disparities

At sentencing the Government recommended a sentence of thirty years to life imprisonment.

The district court questioned “whether Ferguson was the top man in the organization.” The district

court considered the sentences of the other codefendants in the case, noting that the next lowest

sentence imposed was 240 months for Colin Carpenter. To avoid disparity between the sentences

of all the codefendants, the district court granted Ferguson a variance, and sentenced him to 300

months (25 years) in prison.

Although the district court granted Ferguson a variance, Ferguson claims that it was

insufficient because the district court did not consider the possibility that his codefendants might

receive sentence reductions. Because he failed to present this issue below at any point, even after

the district court asked if the parties had any objections to the sentence imposed, we review for plain

error only. See United States v. Vonner, 516 F.3d 382, 385-86 (6th Cir. 2008) (en banc); see also

United States v. Bostic, 371 F.3d 865, 871 (6th Cir. 2004). Plain error is “(1) error (2) that was

obvious or clear, (3) that affected defendant’s substantial rights and (4) that affected the fairness,

integrity, or public reputation of the judicial proceedings.” Vonner, 516 F.3d at 386 (citation and

internal quotation marks omitted).

Specifically, Ferguson contends that the district court should have considered that his co-

defendants, who pleaded guilty to crack cocaine offenses, would be eligible for a two-level reduction

under the Sentencing Commission’s retroactive amendment to the Drug Quantity Table in U.S.S.G.

§ 2D1.1(c). However, as this Court has noted, “[s]ubsection 3553(a)(6) is concerned with national

disparities among the many defendants with similar criminal backgrounds convicted of similar

criminal conduct.” United States v. Houston, 529 F.3d 743, 752 (6th Cir. 2008) (internal quotation

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marks and citation omitted), cert. denied, 129 S. Ct. 2764 (2009). Thus, there was no error, let alone

plain error, affecting Ferguon’s substantial rights.

F. Notice of Forfeiture

Ferguson objects to the forfeiture of his interest in the $5,026, claiming that he did not

receive notice that it was subject to forfeiture. He also argues that there was no nexus between the

cash and his drug crimes.

1. Notice

Ferguson claims that he did not receive notice that the $5,026 was subject to forfeiture

because the superseding indictment does not set it out specifically. This argument is raised for the

first time on appeal and reviewed for plain error only.

Federal Rule of Criminal Procedure 32.2(a) states that “[a] court must not enter a judgment

of forfeiture in a criminal proceeding unless the indictment or information contains notice to the

defendant that the government will seek the forfeiture of property as part of any sentence in

accordance with the applicable statute.” Fed. R. Crim. P. 32.2(a).3

Count 28 of the Superseding Indictment meets this requirement. It states that the United

States sought forfeiture of “any and all property constituting, or derived from, proceeds [Ferguson]

obtained, directly or indirectly, as a result of the said offenses.” Furthermore, it is obvious that

Ferguson knew that the Government sought forfeiture of the cash. The Government’s trial

3
Rule 32.2 was amended on December 1, 2009. The amendments do not affect our analysis
of this issue. In fact, the Advisory Committee notes advise that the amendment to subdivision (a)
“makes it clear that the indictment or information need only provide general notice that the
government is seeking forfeiture, without identifying the specific property being sought.” Fed. R.
Crim. P. 32.2, Advisory Committee Notes to 2009 Amendments.

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memorandum restated this intention to obtain forfeiture. Post-conviction, Ferguson filed a document

entitled “Motion for Return of $5,026.”

Ferguson’s reliance on United States v. Jones, 502 F.3d 388 (6th Cir. 2007), is misplaced.

Jones involved the government’s attempt to forfeit real property and a mobile home based in part

on the defendant’s involvement in a conspiracy to distribute marijuana. The indictment sought to

forfeit simply “3.2 acres of real property in Laurel County, Kentucky.” This Court held that the

mobile home on the property was not subject to forfeiture because it was not listed in the indictment,

and the government failed to establish a nexus between the criminal activity charged in the

indictment and the real property. Id. at 394.

2. Nexus

Property may be subject to forfeiture when it is the direct or indirect proceeds of the crime

of conviction. 21 U.S.C. § 853(a)(1). The property must bear a “sufficient nexus” or “substantial

connection” to the underlying offense. United States v. Smith, 966 F.2d 1045, 1055 (6th Cir. 1992).

See also Fed. R. Crim. P. 32.2(b)(1) (stating that when the government seeks forfeiture of specific

property, “the court must determine whether the government has established the requisite nexus

between the property and the offense”). The government has the burden of proving forfeiture by a

preponderance of the evidence. Jones, 502 F.3d at 391; Smith, 966 F.2d at 1052.

Neither party in this case requested a jury determination of forfeiture during trial. After trial,

but before sentencing, Ferguson and his wife jointly moved for a return of the cash seized from the

Mt. Lebanon Road residence under Rule 41(g) of the Federal Rules of Criminal Procedure. The

court denied this motion and ordered the forfeiture of the cash pursuant to 21 U.S.C. § 853(n).

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However, the forfeiture was not discussed at sentencing and was not included in the final judgment

as required by Rule 32.2(b)(4) of the Federal Rules of Criminal Procedure.

In their motion, the Fergusons noted that the Government did not produce any evidence

during the suppression hearing or at trial linking this money to Ferguson’s drug-trafficking activities,

and that the Government failed to seek civil or criminal forfeiture during trial. Rather, the

Government had expressed its intention to seek a fine against Ferguson in the exact amount of the

seized cash. In response, the Government conceded that “due to oversight the United States did not

seek a jury verdict on the forfeiture count,” but claimed that the money was nevertheless subject to

criminal forfeiture. The Government argued that it also had the right to retain the money, as

evidence, until the conclusion of the criminal proceeding. Finally, the Government reiterated its

intention to seek imposition of a fine in the amount of the seized cash.

The district court denied the Fergusons’ motion without an evidentiary hearing and sua

sponte ordered the seized money forfeited. The district court reasoned as follows:

The Presentence Investigation Report indicates that Ferguson has assets $10,500. His
2005 income was $12,000. It is incongruous that Ferguson would have such a large
amount of cash on hand considering his level of income and his holdings.
Recognizing that large quantities of cash are often associated with drug trafficking,
and considering Ferguson’s convictions on Counts One and Eighteen of the
Superseding Indictment, this Court finds that the Government has established the
requisite nexus between the $5,026 and the offense.

The problem with the district court’s reasoning is that the Government never actually sought

forfeiture and therefore never offered these arguments and evidence in support. Indeed, the only

relevant evidence, presented by Ferguson at the suppression hearing, established the lack of a nexus.

Special Agent Hayes testified at the suppression hearing that the approximately $5,000 in cash

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discovered at the Mt. Lebanon Church Road residence was in a plastic jug in the master bedroom.

Ferguson’s wife testified that the money was from savings and gifts from family members. She said

she and Ferguson kept it in “a plastic oversized bottle that had a plastic top that was a bank,” with

a slit in the top, and that it held “ones, twos and fives and change.” Ferguson’s mother testified for

the defense that “this was like a community jar, that they put ones, twos, fives in there as they got

them over about a three to five-year period.” Agent Hayes testified that the denominations of the

cash in the plastic jug were not consistent with the quantities of cocaine Ferguson was dealing with.

Although the presence of a not insubstantial amount of cash could perhaps raise an inference

of illegality given Ferguson’s modest legitimate income, the Government did not offer any evidence

to support such an inference. Instead, the undisputed sworn testimony in the record supported

Ferguson’s alternative explanation for the money. The location of the money in the piggy-bank-like

plastic jug and the small denominations of cash, saved over a three-year period, suggest that the

money was not obtained by drug trafficking. Furthermore, given the lack of evidence that Ferguson

engaged in drug trafficking out of the Mt. Lebanon Road residence, the Government was obliged to

produce some evidence linking the seized cash to Ferguson’s drug-trafficking activity. In sum, then,

the money was not properly subject to criminal forfeiture because the Government failed to meet its

burden of establishing a nexus between the seized cash and Ferguson’s convictions.

We therefore reverse the district court’s forfeiture of the cash and order it be returned to the

Fergusons because the money was both improperly seized and improperly forfeited.

III. Conclusion

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 For the foregoing reasons, we AFFIRM the judgment of conviction and sentence, but

REVERSE the order of forfeiture. The case is REMANDED for further proceedings consistent with

this opinion.

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