Sixth Circuit Reverses Conviction For Man Talked Into Criminal Acts By Undercover FBI Agents
From the make-your-own-terrorists,-lose-your-own-convictions dept.
BE THE TERRORISM YOU WANT TO SEE IN THE WORLD.
FBI motto (ca. 2001)
The FBI’s penchant for self-ownership dates back to its reinvention as a counter-terrorism agency, a move that followed a bunch of power and budget expansions for any federal agencies that might help George W. Bush avenge his father’s loss in the 1992 election.
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This case, handled by the Sixth Circuit Court of Appeals is just more of the same, self-defeating “national security” work the FBI prefers to engage in, rather than engaging with actual terrorists. Why put yourself in danger when you can just coerce non-dangerous people into violating federal laws?
This case begins — as so many of them do — with completely ridiculous circumstances more suited to satire than real life events. This is from the opening of the Sixth Circuit’s decision [PDF]:
[Christian] 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.”
Would anyone outside of an opportunistic FBI agent actually think these online interactions would result in violence? I mean, Ferguson’s conspirator was 14 years old. His online handle was “SecretAgentRandyBeans.” The term used to discuss the undetermined violent act was “small claim,” a term that has only struck fear in the hearts of absentee landlords and payday lenders.
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Then there’s the nature of this conspiracy — one in which both conspirators were equally useless:
Ferguson stated he had not found any recruits yet. In response, SecretAgentRandyBeans stated he could “kinda drive.”
A reasonable terrorist would have found a different chat room to inhabit. But unscrupulous federal agents love fruit hanging so low they often trip over it. After watching two underachievers plot destruction they could never hope to realize, the undercover agents tried to make their dreams a reality.
It took an FBI agent to move this forward.
On April 15, while chatting with Ferguson, [FBI confidential informant] Guiness stated that he had been “training at home with another guy” and invited Ferguson to join them. Ferguson did not respond. Two days later, on April 17, Guiness contacted Ferguson again and asked to meet, offering to “[n]ail down some times we can start training small unit tactics?” Ferguson agreed and they met the next day (April 18) at the Metroparks near the Cleveland Zoo.
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“Guiness” tried again a couple of days later, talking Ferguson into “hiking” and “land nav.” Ferguson blew this off as well, citing problems with his bank card. Finally, the two got together on April 28, where a vague conversation occurred about combining a SWATting with grand theft auto of a cop car and its communication equipment. If needed, cops would be shot, but the main concern appeared to be securing cop tech while cops were otherwise distracted. The only info Ferguson could provide to the persistent FBI informant was that a 14-year-old known as “SecretAgentRandyBeans” would be involved to help create the distracting domestic violence call. Ferguson told the CI he planned to “handcuff” responding officers in order to steal their gear.
On May 5th, the FBI informant sent Ferguson another unsolicited message — this one containing a photo of an abandoned house, suggesting it could be used to engage in the extremely vague appropriation of cop things.
On May 8th, the FBI informant decided to make Ferguson’s unstable dreams a reality.
Guiness then suggested that they conduct a “dry run” of the plan by placing a fake call to law enforcement and timing how long it would take the officers to get there. Ferguson agreed and Guiness placed the call. The three waited in the woods and watched for the park rangers. After the rangers arrived, Ferguson, Steve, and Guiness ran away from the rangers back towards the barn where their car was parked. When they got to the barn, police officers arrested all three men (to make Ferguson believe Guiness and Steve were suspects as well).
Following the arrest, FBI agents searched Ferguson’s house, finding an AR-15, ammo, tactical gear, and a “guerrilla warfare manual.” Ferguson was charged with two counts of attempted kidnapping of a federal agent despite having done nothing more than meet with someone while they placed a bogus call to law enforcement and running away from the officers once they arrived to handle the bogus call.
Ferguson challenged the charges, arguing there was no evidence proving he intended to kidnap officers. The appeals court looks at the record and (mostly) agrees. Most of what Ferguson affirmatively stated he wished to do did not involve kidnapping officers. (Emphasis in the original.)
Ferguson initially told Guiness and Steve that he wanted to surround the officers and take their gear, thus describing only a robbery. Later that same day, however, Ferguson stated that they might have to handcuff officers while they took their gear, actions which might indicate a longer holding to complete the robbery. On May 8, however, Ferguson changed his plan, saying that they would have to take the gear quickly and in under three minutes, acts which would constitute a robbery without any “holding.” Yet again on May 8, Ferguson darkly described the possibility of needing to kill most of the officers.
Two things become clear from Ferguson’s statements. First, any possible plan was in its infancy, as it was constantly changing. Second, Ferguson had not decided and apparently did not know what he wanted to do with the officers other than take their gear and leave them with a “calling card.” Given the mixed facts and the even more uncertain legal issue, we cannot resolve this case based on whether Ferguson did or did not intend a kidnapping.
Intent is one thing. But equally important here is timing. And without a coherent plan in place, it’s extremely presumptive for the government to claim an attempted kidnapping was in the making.
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.
The Appeals Court says maybe a kidnapping would have taken place if Ferguson was given an unlimited amount of time and resources. Just as likely, it would never have happened. The government simply doesn’t have enough information or evidence to support the charges it brought against him. The jury standard is “beyond reasonable doubt.” Every doubt expressed by the Sixth Circuit is reasonable.
The only consistent theme of Ferguson’s statements was that he wanted to lure officers to some location and take their gear, acts which likely would likely have constituted only a robbery. Had he adapted his plan to evolving circumstances, he might have ended up kidnapping officers. We will never know. What we do know, however, is that the government had to prove beyond a reasonable doubt that Ferguson overtly acted in a way that “unequivocally corroborated” his intent to kidnap someone. Bilderbeck, 163 F.3d at 975. No reasonable juror could find that the government met that burden.
The government fucked up in its haste to generate criminal charges by pushing someone towards a certain federal crime and pulling the trigger on an arrest before it had all of its entrapment ducks in a row (all emphasis in the original):
Without more evidence, a jury cannot convict Ferguson for a crime that might have happened during some contingency of a future plan which still required much preparation.
Also, simply owning a gun while being encouraged to engage in criminal acts by an FBI informant does not make gun possession relevant to the government’s assertions about criminal intent, much less support its wild-ass kidnapping theory:
[T]he government admitted it did not know when Ferguson acquired his gear, and the record demonstrates unequivocally that he at minimum owned his AR-15 rifle prior to espousing his idea on April 28.
The court also doesn’t like the government’s attempt to criminalize protected speech just because it might help it in this particular case.
The government provides no case that supports the proposition that mere discussion of a criminal idea—without some action—is sufficient to constitute an attempt.
The defendant never raised the entrapment defense. The Sixth Circuit notes this, implying the government is very lucky he didn’t. Because this definitely looks like the government pushing someone to do something they’ve showed very little interest in doing and then arresting them because they relented to the persistent cajoling of an FBI informant.
On its face, Ferguson’s trip to the National Park on May 8 did not corroborate any resolve to commit a kidnapping and was tainted by the FBI’s prompting. The FBI instigated the first non virtual meeting. The FBI informant pressured Ferguson for a plan and told him if he did not have one, he “planned on losing.” The FBI initiated the May 2 meeting, after Ferguson had already cancelled their outing. The FBI initiated the May 8 meeting. The FBI picked the location, on federal land, thereby creating federal jurisdiction. After the men’s arrival at the location, the FBI suggested conducting a “dry run.” The FBI placed the call to execute the “dry run.” At every juncture, Ferguson reiterated the preliminary nature of his plan. At every meeting, he mentioned the need to recruit more people and do more planning.
The FBI wanted to create its own domestic terrorist. It failed here. The conviction cannot stand:
[E]very overt act was initiated and shepherded by the FBI from beginning to end.
The FBI could have stayed out of this and let Ferguson and 14-year-old “SecretAgentRandyBeans” wow each other with their online bravado long past the point anyone would have cared. It could have intervened and spoke with Ferguson and his conspirator, informing them they were treading on dangerous ground if they continued to make plans to steal gear from cops. But it chose to push Ferguson into something he was clearly unprepared to do and then hit him with federal charges for being polite enough to rendezvous with a persistent online compatriot.
The FBI never asks itself this simple question: does this make the country safer? It should. Because that’s what it claims it’s doing every time it makes a ridiculous bust like this. Or refuses to discuss encryption like an adult. Or demands backdoor access to the NSA’s dragnet hauls. This is clearly bullshit. And it’s clearly the way the FBI would prefer to engage in the business of preventing terrorist attacks.
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