On or About and Constructive Amendments and Judicial Notice, Oh My!

The Sixth released an interesting published decision today in United States v. Ferguson.  The defendant apparently had thousands of cp pictures on his computer.  He attempted to delete them all on April 4, 2008, but missed 14 of them.  He was then indicted for possession of those 14 images “on or about” April 10, 2008.  The defendant argued that because he thought he deleted the pictures on April 4, he did not “knowingly” possess them on April 10.  The court held that the variance of dates was still close enough to satisfy the “on or about” language in the indictment.

Next, the court held that it could take judicial notice of Shepard documents on appeal in order to determine the nature of a prior conviction.  The defendant argued that the indictment in his state conviction was unhelpful in determining what offense he pled no contest to because Michigan court rules permit a defendant to plead to an offense not charged in the indictment when entering a plea of no-contest.  The court found this argument unpersuasive in this case because other Shepard documents showed that the defendant pled to offenses charged in the indictment.  But it wouldn’t hurt to keep this rule in mind if your are looking at state court Shepard documents from Michigan in future cases.