UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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