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6th Cir. Reverses Conviction for Attempted Kidnapping
Prof. Jonathan Witmer-Rich (Cleveland State) posted this to a discussion list that I'm on, and graciously allowed me to forward it; it's about today's U.S. v. Ferguson (6th Cir.):
Great case from the Sixth Circuit today on attempt, reversing a conviction for attempted kidnapping. The majority (2-1) holds that there was insufficient evidence of a "substantial step." … The first paragraph sets the scene:
Ferguson, a black man from Cleveland, then 20 years old, aroused FBI suspicion in March 2020 with his internet postings. Ferguson led an online chat room on the Discord platform known as the 75th Spartans. In this chatroom, Ferguson, whose moniker was "Grinch75R," described his desire to create a militia group and revolt against tyranny. On March 18, 2020, Ferguson wrote that he wanted to organize the Spartans into "centurions to orchestrate raids for supplies such as weapon and armor." On April 7, 2020, Ferguson asked a member of the chatroom, a 14-year-old with the moniker "SecretAgentRandyBeans," whether he could drive because Ferguson wanted to do a "small claim" with the cops and "leave a calling card with the Spartans name." Ferguson stated he had not found any recruits yet. In response, SecretAgentRandyBeans stated he could "kinda drive."
… Pretty soon two government agents get involved and play a pretty active role, and the group discusses various possible plans to call a police car to a remote location and then ambush the officers, steal their weapons and radios, and then let them go—a way to "get the spark going" for their group.
The two FBI CIs persuaded Ferguson to show up on May 8 at an abandoned house in the Cleveland area to scope out the area. Ferguson brings his AR-15 (at the request of the FBI CI). Upon arrival the CI proposes (and Ferguson agrees) to do a "dry run" and call some cops to see how long it would take them to get there. They place a call for service, the cops arrive, Ferguson and the two FBI CIs all flee, the cops catch them and arrest all three (pretending to arrest the two CIs as well).
The majority analysis includes the following:
Ferguson's idea for an attack against law enforcement was at most in its planning stage. Ferguson had much more planning to do and was not, at the time of his arrest, ready to execute his plan. His early cyber communications with the Spartan channel indicated only a desire to commit a strike at some vague point in the future and the need to have recruits before doing so….
Ferguson had no timeline for his plan let alone an intent to execute it imminently. On May 2, Ferguson vaguely stated the possibility of organizing for a raid more than a month into the future. On May 8, Ferguson stated "right now, I'm just trying to get more people." As FBI confidential source "Steve" admitted at trial, Ferguson never provided a date or timeline for the plan. The government pointed us to no Sixth Circuit case in which an attempt conviction was predicated on a plan as far in the future as Ferguson's here. Every case we have found that sustained an attempt conviction for an offense to take place more than a few days in the future involved a set time and date between well-resourced drug dealers….
To commit attempted kidnapping, Ferguson had to take a substantial step not only in furtherance of the global concept of his plan, but also toward a holding of the officers against their will and for an appreciable period of time. None of his acts prior to May 8 meet this mark. He had no recruits, no location, no date or deadline, and not even a consistently expressed goal regarding how he intended to treat any responding officers.
The majority consists of one of the most senior Sixth Circuit judges, Alice Batchelder (took the bench in 1991), plus one of the most junior judges, Stephanie D. Davis (took the bench in June of 2022). Judge John K. Bush dissents.
Some highlights from the dissent:
On the one hand, Christian Ferguson could be viewed as simply a youth engaged in fantasy role play. Today's Tom Sawyer, if you will, "Busy at War" playing "General of one of the armies" in "the public square of the village where two 'military' companies of boys had met for conflict, according to previous appointment." Mark Twain, The Adventures of Tom Sawyer 20–23 (New York: Harper & Bros. 1920) (1875).
But, on the other hand, Ferguson could be viewed as much more than a pretend soldier. He was not playing with wooden guns. Instead, he packed an AR-15 rifle….
Ferguson did no harm here because the FBI intervened before he had any chance to carry out his planned criminal activity. But the majority seems to fault the agency for not waiting until something worse had materialized. I do not. If any second-guessing of law enforcement is to be done here, that is the role of the jury, not us.
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It definitely sounds to me like they took specific actions in furtherance of their plan. Going to a remote location to scope things out and placing a false police call to see how long it would take the cops to arrive at the scene both strike me as substantial steps. They are both concrete actions and not mere talk.
But weight that against the conclusion that “every overt act was
initiated and shepherded by the FBI from beginning to end”.
That has never been an impediment to conviction before.
No better time to correct course than the present moment.
Yep. Or, at the least, charge the FBI CI’s for the same offense.
But the charging decision rests with the DOJ not the judges.
The most the judges can do is decide if the people who’s idea it was to commit a crime didn’t commit a crime, then neither did anyone else they roped in.
Mr. Ferguson might have had a valid entrapment defense in this case. But that’s different from insufficiency of the evidence.
“a black man”
Why is this relevant?
https://en.wikipedia.org/wiki/Stephanie_D._Davis
Here’s Davis. She obviously ruled for him solely because he was black.
Wikipedia also has pictures of Alice Batchelder (who is in the majority with Davis) and John K Bush (who dissented). Maybe my sarcasm detector is broken today, but what’s your point?
There is, on the other hand, credible evidence of racial discrimination on the part of police forces (including the FBI) in the northeast Ohio area. A sting operation targeting Ferguson may justifiably be given lower credibility based on that prior history.
Alternatively, this is a story about anti-government militia. Which most people reflexively assume is populated only by “poor white trash”. The detail, even though not relevant to the main thrust of this article, does counter that misconception by quietly reminding people that disaffection with one’s government is a cross-racial phenomenon.
Yeah, but Batchelder is a woman. They can’t help themselves but side with criminals.
First, it’s not my silo. Second, however, there are people who do live in that silo – and one of the ways we help break down that silo is by quietly calling out the counterexamples to stereotypes. Which, golly gee, is exactly what the article did with that small mention.
C’mon (man!) deactivated Missile Silos suck, it’s the deactivated Minuteman Launch Control Centers you want, suspended on springs to withstand megatons of impact, 20 ton door to keep out the riff-raff, and an escape tunnel if the riff-raff does get it
Frank
Another case where the FBI saved America from the FBI.
Disaffected, whining, anti-government, right-wing cranks are among my favorite culture war casualties.
Mine are mumbling woke progressives, like PA “Senator” S-S-S-tuttering J-J-J Fetterman, who’s spent more time in the Sanatorium at Walter Reed than in the Senate where he’s paid to represent YOUR state Jerry, good luck getting him to sign off on your Commutation, of course with your record, having a demented Stroke Victim review it is better…
How would things stand if Mr Ferguson had been a CI for the State police, trying to ensnare the two FBI CIs, assuming that they were genuine wannabe kidnappers ?
Presumably the FBI is allowed to wave a magic federal legal wand to immunise its own agents from federal charges, and presumably the state police can wave a magic state legal wand to immunise its agents from state charges.
But the ideal situation would obviously be if they all finished up in prison – the FBI guys in state prison, and Ferguson in federal prison. Along with their handlers as accomplices.
Honestly, the rule should be – if the police create a crime by inducing some doofus to go along with their fake plans to commit a fake crime – then if the law thinks the fake crime is a real one, they should all finish up inside, together.
There are deconfliction measures that law enforcement agencies take to prevent that kind of situation.
Ha, ha, ha, ha…..!
Now let’s apply that same reasoning to the folks who were supposedly planning to kidnap Michigan Gov Whitmer.
It was.
My understanding is that the Whitmer defendants were charged with kidnapping conspiracy, not attempted kidnapping. Such a conspiracy only requires evidence of an overt act in furtherance of the conspiracy, not a substantial step towards completing the crime.
This crap is genuinely more interesting to a “defamation scholar” and “free speech champion” — and the other “scholars” who operate this blog — than the defamation cases that are dominating the public interest and news publications these days?
Or is this just random, fungible diversionary chaff being tossed to a downscale audience?
“to a downscale audience”
And here you are Artie.
You mean Coach Jerry Sandusky
It sure seems like it would have been cheaper, and probably a better overall deterrent, for the FBI to spend some effort finding someone to convey “hey guys, there are legal ways we can seek redress for our grievances, shooting people isn’t a good idea” rather than nurturing this scheme.
It’s almost as if the people running the FBI want to gin up more cases like this in order to clamp down on the population, subvert our democratic-republic form of government, and eliminate the “legal ways we can seek redress for our grievances.”
I’m inclined to think that this case was correctly decided, but… do you really think this guy was one PSA away from becoming a well-adjusted member of the body politic?
Aren’t there enough real crimes for the FBI to investigate? Jeez, they’ve gone downhill ever since J. Edgar died and they stopped requiring agents have Law or Accounting Degrees, Now they’re all basically Jerry Sandusky without the Pedophilia.
This is anarcho-tyranny,
You sound like some sophomore wannabe activist.
Hoppy and kulak are of course jumping to unwarranted conclusions, and I don’t know if Davis is a blackity-black judge, but it’s not remotely unreasonable to be suspicious that that is true pending evidence either for or against.
I’m jealous too.
But if I ever wanted to play Anarcho-terrorist I know what I’d do, I’d get a squad of FBI-ATF agents to play with me.
But I’d never go on any dry runs with them.