Social media is a double-edged sword. It provides a platform for people to connect and freely discuss a wide-variety of issues. On the other hand, such unfiltered discussion can lead to trouble. Such was the case for Christian Ferguson, a twenty-year old resident of Cleveland, Ohio, who led an online chatroom on Discord known as the "75th Spartans." A military enthusiast, Ferguson, through his moniker "Grinch75R", expressed his desire to create a militia group and stage a "revolt against tyranny."
On March 18, 2020, Ferguson posted that he wanted to organize the Spartans into a group that would raid for supplies such as weapons and armor. Although it is unclear how many individuals participated in the Spartans Discord group, it had at least one other member: "SecretAgentRandyBeans." On April 7, 2020, Ferguson asked AgentBeans whether he could drive because he wanted to do a "small claim" with the cops and leave the Spartans' calling card, explaining he had not yet found any recruits for this venture. AgentBeans, who was only fourteen, said he could "kinda drive."
Ferguson's postings aroused the suspicions of the federal government. Shortly after communicating with AgentBeans, an FBI confidential informant, known as "Guiness" asked to join the Spartan group, explaining he was a veteran of the United States Army. Ferguson ultimately added Guiness to the Spartan group chat.
Guiness became actively involved in the Spartan group. On several occasions, he invited Ferguson to train with him for a potential strike. On April 28, 2020, Ferguson detailed, for the first time, his idea for a potential strike against the police, explaining he wished to call a patrol car to an "open location," after which his group would ambush the officer, subdue him, raid his cruiser for weapons, and then release him. In subsequent chats, Ferguson clarified his "plan" was not happening imminently, stating the group was still "laying out the groundwork" for the plan. Guiness continued training with Ferguson, secretly recording their interactions and his discussions about his plan, including his intention to have AgentBeans find a girl to call the police with a fake domestic violence claim.
On May 5, 2020, Guiness suggested that the Spartans carry out their plan at an abandoned house in Cuyahoga Valley National Park (ahem...federal jurisdiction). In addition, Guniess suggested he, Ferguson, and a man named "Steve," who was an FBI informant, meet at the park the following Friday to conduct "recon."
As planned, the three men met the following Friday to conduct reconnaissance at the location. While there, Guiness suggested they conduct a "dry run" of the plan by calling the police and timing how long it would take the responding officers to arrive. Ferguson agreed, Guiness placed the call, and the three men waited in the woods for park rangers to arrive. Tipped off by Guiness's call, the rangers arrested Ferguson -- and staged a fake arrest of Guiness and Steve -- when they arrived.
Ferguson's arrest led the Government to obtain a search warrant for his residence, pursuant to which it seized an AR-15, ammunition, magazines, tactical gear, and a guerilla warfare manual. The Government subsequently charged Ferguson with two counts of attempted kidnapping in violation of 18 U.S.C. §§ 1201(a) and (d), and a jury convicted him after a two-day trial.
In a published opinion, the Court reversed Ferguson's conviction for insufficient evidence. According to the majority, the jury incorrectly found Ferguson attempted to kidnap police officers because his plan was "underdeveloped and "exploratory in nature...." Critically, the Court held that, unlike other attempt cases, Ferguson had no timeline for his plan or an intent to execute it imminently. It was also unclear whether Ferguson's plan involved kidnapping or robbery.
The Government asserted Ferguson had, in fact, taken a "substantial step" because he: (a) provided verbal and visual descriptions of his idea in his Discord chats; (b) he supposedly purchased gear for the plan, including an AR-15; and (c) he, Guiness, and Steve visited the location. The Court rejected each of these arguments. First, it held Ferguson's discussions were merely "aspirational in nature" and that it is rare for a defendant to take a "substantial step" toward the commission of a crime through speech alone. The fact that Government agents seized gear from Ferguson's residence was similarly unavailing to the Court, noting Ferguson lawfully acquired his AR-15 before espousing his plan, and that the Government failed to establish when he acquired his remaining gear.
The Court likewise rejected the Government's claim that traveling to Cuyahoga Valley National park constituted a "substantial step." Noting that Government agents selected the site and orchestrated Ferguson's "dry run," it held that it was not evidence Ferguson intended to kidnap police officers.
Judge Bush authored a lengthy dissenting opinion arguing that, although it was a close case, it was not impossible for a jury to believe Ferguson intended to kidnap a police officer, and that he took a "substantial step" toward doing so. According to Judge Bush, it was for the jury, not the Court, to determine whether Ferguson's plan was just "makebelieve," or whether it was real.
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