United States v. Christian Ferguson ( 2023 )

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 23a0079p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
┐
UNITED STATES OF AMERICA,
│
Plaintiff-Appellee, │
> No. 21-3800
│
v. │
│
CHRISTIAN FERGUSON, │
Defendant-Appellant. │
┘
Appeal from the United States District Court for the Northern District of Ohio at Akron.
No. 5:20-cr-00262-1—Solomon Oliver, Jr., District Judge.
Argued: October 18, 2022
Decided and Filed: April 20, 2023
Before: BATCHELDER, BUSH, and DAVIS, Circuit Judges.
_________________
COUNSEL
ARGUED: Timothy F. Sweeney, LAW OFFICE OF TIMOTHY F. SWEENEY, Cleveland,
Ohio, for Appellant. Matthew B. Kall, UNITED STATES ATTORNEY’S OFFICE, Cleveland,
Ohio, for Appellee. ON BRIEF: Timothy F. Sweeney, LAW OFFICE OF TIMOTHY F.
SWEENEY, Cleveland, Ohio, for Appellant. Matthew B. Kall, UNITED STATES
ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee.
BATCHELDER, J., delivered the opinion of the court in which DAVIS, J., joined.
BUSH, J. (pp. 16–23), delivered a separate dissenting opinion.
_________________
OPINION
_________________
ALICE M. BATCHELDER, Circuit Judge. We are asked to grant extraordinary relief.
Christian Ferguson asks us to overturn his jury conviction on the ground that there was
No. 21-3800 United States v. Ferguson Page 2
insufficient evidence to support the conviction. To do so, we must find that no rational juror
could have found Ferguson guilty beyond a reasonable doubt. Certainly, this standard,
established in Jackson v. Virginia, 443 U.S. 307, 319 (1979), sets a high bar—respecting the
solemn role the jury plays in our criminal justice system. Sufficiency review also fulfills a
solemn role, guaranteeing that no person is criminally convicted, and thereby deprived of liberty,
without due process of law. U.S. CONST. amend. V. It ensures that criminal convictions are
supported by sufficient evidence, because anything less undermines the integrity of the judicial
process. The jury convicted Ferguson on insufficient evidence, in violation of Jackson and the
Fifth Amendment. We therefore reverse the judgment of the district court.
I.
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
platform1 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.”
On April 14, 2020, an FBI confidential informant, known as “Guiness,” contacted
Ferguson on Discord, posing as a U.S. Army veteran who was interested in joining the Spartan
group. Ferguson was suspicious and asked members of the Spartan group to investigate
Guiness’s background. Eventually, suspicions dispelled, Ferguson approved Guiness and added
him to the Spartan group channel.
1
Discord is a communication platform that allows text and voice chats among individuals in a secure chat
room.
No. 21-3800 United States v. Ferguson Page 3
On April 15, while chatting with Ferguson, 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.
Two days later, Guiness via Discord asked Ferguson to meet again that coming Sunday
so they could “do some land nav/hiking.” Ferguson agreed. Guiness suggested meeting at Camp
Belden in Grafton, Ohio. On April 26, however, Ferguson said he had to reschedule because his
bank card was giving him trouble. Guiness followed up on April 28, saying,
[W]e gotta get together soon. If any kind of strike or something similar is going
to happen in the near future, i gotta kno so i can plan accordingly. If u dont have
a good plan, then u plan on losing. If im going to be part of something, i gotta be
kept up to speed so i don’t get blind sided.
Ferguson said he was “good to go” for that weekend to meet and train.
Also on April 28, chatting with the entire Spartan group, Ferguson detailed for the first
time an idea for a potential “strike.” He wrote,
Mainly this is the plan. We call a patrol car out to the open location. When he
comes to check out the location, we ambush him and subdue him, raid his cruiser,
and strip him of all his weapons and send him walking home brushed and with
our calling card. That’s why we need something that will get members and
finally get a spark going.
Ferguson then equivocated in response to some chats, writing,
It’s not happening right now. I’m saying that’s going to be the first move we
don’t have a date in stone right now im laying what will be . . . I tried telling him
this is the plan but were not putting it into action just yet. I’m laying out the
groundwork.
After Guiness joined the chat, Ferguson continued,
We need to keep the ops small but loud. We still building numbers, but this will
get Patriots and future Spartans interested. We also can’t afford martial law to be
installed until I know all my pilots are fully armed and armored up. I still need a
sidearm and waiting on my Armorsmith . . .
No. 21-3800 United States v. Ferguson Page 4
[Reponses from other Spartans]
We need four people for this work, three minimum . . . We hit a sheriff or police
cruiser that [has] AR. Take to fed Brady armor and equipment. If we get our
hands in a radio, we’ll be able to plan around them.
Guiness and Ferguson finally met at Camp Beldon on May 2, this time joined by a
second FBI informant, known as “Steve.” At Guiness’s request, Ferguson brought his AR-15
rifle. During this meeting, the group engaged in faux military exercises and hiked the woods.
Guiness and Steve recorded the whole meeting with a hidden bodycam. While hiking, Ferguson
talked more about his idea:
What I was thinking was the first thing that gets someone’s attention, and once
you make some type of calling card . . . Get a cop patrol car. One or two. Have
them come out to like a little – basically like a domestic violence call. Call them
out and just tip out the car that try to go to the house where the call, so called
house that’s basically abandoned…Everyone surrounds them. And they give
options. Either like…either put your…lay your pistol on the ground or get shot
immediately. 10 seconds to comply. They don’t do anything, either they lay
down or we put them down. And then after I take their gear, and take their com
and get that police radio out of that damn cruiser…
And if they don’t get it the first time, we’ll do it as many damn times as we have
to until we start seeing something on Fox or something like that saying a group
called Spartans is . . . out killing police officers and shit like that.
(closed ellipses in original to indicate patterns of speech).
Later, during that same hike, Guiness asked Ferguson to lay out his thoughts again.
Ferguson then drew a diagram in the dirt, describing his idea for a strike in more detail, stating
that Russ, a.k.a. “SecretAgentRandyBeans,” the fourteen-year-old boy from Tennessee, would
help find a girl who could fake the domestic violence call. Ferguson mentioned they might have
to handcuff the officers while they stole their gear. Ferguson then told Guiness and Steve that he
was thinking of putting his idea into practice around “the end of the month or even June.”
Between May 2 and May 5, Ferguson’s and Guiness’s communication consisted of
Discord chats about gun models and ju jitsu. On May 5, without any request by Ferguson,
Guiness sent a Google maps picture of an abandoned house in Cuyahoga Valley National Park,
saying, “Check it out. Theres more than one abandon house on this road. Perfect location
No. 21-3800 United States v. Ferguson Page 5
tactically. Take a look tell me what u think. Maybe we should recon it fri.” Ferguson asked
Guiness to send the location to the larger group chat because he wanted some input.
On May 8, Ferguson, Guiness, and Steve met for a third time, starting at a Subway
restaurant, and then proceeding to Cuyahoga Valley National Park. Guiness drove. They carried
no weapons to the park. In the car on the way to the park, Ferguson said that because police
cruisers arrive minutes apart, that “we’re probably gonna have to um . . . make it even faster. . .
.[M]ainly to get the guns and gear off of their body . . . and just get out of there under, in three
minutes.” Later in the car ride Ferguson stated, “right now, I’m just trying to get more people.”
They arrived and parked the car near a barn-like structure before hiking to find the abandoned
house.
They proceeded towards the abandoned house, with Ferguson saying that if multiple cops
responded to their call, they’d have to start shooting some in the head. As they approached the
house, Ferguson described the area as “perfect.” After scoping the interior of the abandoned
house, Guiness stopped Steve and Ferguson saying, “Alright listen guys. You too Steve. I know
we already talked about this, this is serious shit, I know it’s just the recon now, but is everybody
good?” Ferguson responded, “I’m down . . . I want in.”
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).
The FBI obtained and executed a search warrant for Ferguson’s residence, seizing an AR-
15 rifle, ammunition, magazines, tactical gear, and a guerilla warfare manual. The government
charged Ferguson with two counts of attempted kidnapping in violation of 18 U.S.C. §§ 1201(a)
and (d). After a two-day trial, Ferguson moved for a judgment of acquittal, which the trial court
denied. The jury returned a guilty verdict and Ferguson appealed.
No. 21-3800 United States v. Ferguson Page 6
II.
We review de novo a district court’s denial of a motion for a judgment of acquittal to
determine whether “any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” United States v. Burris, 999 F.3d 973, 976 (6th Cir. 2021) (quoting
Jackson, 443 U.S. at 319 (emphasis deleted)). We consider all evidence in the light most
favorable to the prosecution. United States v. Wesley, 417 F.3d 612, 617 (6th Cir. 2005). Where
the conviction is for an attempt, the government must have proved that the defendant both
intended to commit the underlying offense and committed a “substantial step” towards the
commission of that offense. Id. at 618.
III.
Ferguson was charged with attempted kidnapping in violation of 18 U.S.C. § 1201, which
provides,
(a)Whoever unlawfully seizes, confines, inveigles, decoys, abducts, or carries
away and holds for ransom or reward or otherwise any person . . . when . . .
(2) any such act against the person is done within the special maritime and
territorial jurisdiction of the United States; . . .
(5) the person is among those [federal officers or employees] . . . and any
such act against the person is done while the person is engaged in, or on
account of, the performance of official duties,
shall be punished by imprisonment . . .
This statutory language requires four essential elements for a completed kidnapping offense:
1) the defendant unlawfully seized, confined, inveigled, decoyed, abducted, or carried away the
victim, 2) the defendant held the victim, 3) the holding was for ransom or reward or otherwise,
and 4) the defendant did so in a manner to create federal jurisdiction. See 18 U.S.C. § 1201(a).
Subsection (a) prohibits kidnapping in its completed form. Subsection (d) of that same section
provides, “Whoever attempts to violate subsection (a) shall be punished by imprisonment for not
more than twenty years.”
Ferguson does not dispute that his plan would have, at minimum, involved the seizing of
federal officers on federal land. Nor does he argue that any holding was not for ransom or
reward or otherwise. Rather, Ferguson denies that he held or intended to hold at all.
No. 21-3800 United States v. Ferguson Page 7
Holding, under the kidnapping statute, requires an “unlawful physical or mental restraint
for an appreciable period against the person's will and with a willful intent so to confine the
victim.” United States v. Ingram, 846 F. App’x 374, 383 (6th Cir. 2021) (citing Chatwin v.
United States, 326 U.S. 455, 460 (1946)). Remarkably little case law elucidates the standard set
down in Chatwin. To date, only one Sixth Circuit case has considered the contours of a
“holding” and did so in the context of deciding whether the alleged confinement was against the
victim’s will. Ingram, 846 F. App’x at 383-84. No case has squarely considered the required
duration of an “appreciable period,” i.e., how long a momentary seizure must continue to become
a federal kidnapping.
United States v. Small, 988 F.3d 241 (6th Cir. 2021), provides no clarity. Small involved
two defendants who broke into an elderly woman’s home, tied her up with telephone wire for
approximately 20 minutes while they ransacked the home for valuables, and fled. Id. at 248.
The defendants challenged their kidnapping convictions on the basis that they had no proscribed
purpose (i.e., that any purported holding was not for ransom or reward or otherwise), a challenge
which the court rejected. Id. at 249. The defendants did not challenge their conviction on the
ground that their actions did not constitute a “holding,” and thus the court had no occasion to
consider the question. Small did not clarify the holding element and provides little guidance
here.
Ferguson urges us to follow a Ninth Circuit case that construes § 1201(a) as requiring
“more than a transitory holding.” United States v. Jackson, 24 F.4th 1308, 1312 (9th Cir. 2022).
Otherwise, a “garden-variety, three-minute robbery could be a kidnapping,” id., and “the
boundaries of potential liability would be lost in infinity.” Chatwin, 326 U.S. at 464. This
argument is not without force. A liberal conception of the holding element not only creates
sweeping criminal liability such that virtually any crime involving contact with the person of
another could be charged as a kidnapping, but it also strains the text. As the Ninth Circuit
observed, “[m]eaning has to be given to the phrase ‘and holds’ beyond the conduct already
denoted by ‘seizes’ and ‘confines.’” Jackson, 24 F.4th at 1312.
However compelling Ferguson’s arguments, we cannot adopt them in this case, primarily
because we cannot know whether his plan would have involved a kidnapping. We can only
No. 21-3800 United States v. Ferguson Page 8
consider hypotheticals based on Ferguson’s verbally expressed ideas, many of which are
inconsistent.
Take for example his statements on May 2. 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. We therefore must
proceed to the “substantial step” analysis.
IV.
The same two features of Ferguson’s plan that caution us against construing the apposite
language of § 1201—that is, the plan’s preliminary nature and its uncertain relation to his
kidnapping charge—lead us to hold that Ferguson did not commit a substantial step towards
kidnapping.
A substantial step must consist of an “overt act” which objectively marks the defendant’s
conduct as criminal in nature. United States v. Bilderbeck, 163 F.3d 971, 975 (6th Cir. 1999).
The act must unequivocally corroborate the firmness of a defendant’s criminal intent to commit
the offense. Id. Preliminary or planning activities are not sufficient to constitute an attempt. See
United States v. Alebbini, 979 F.3d 537, 546 (6th Cir. 2020); United States v. Price, 134 F.3d
340, 351 (6th Cir. 1998). A “fragment of the crime” must essentially be in progress. Price, 134
F.3d at 351 (quotation marks omitted). The purpose of the “substantial step” requirement is to
No. 21-3800 United States v. Ferguson Page 9
ensure against the “danger of convicting for mere thoughts, desires, or motives.” Bilderbeck,
163 F.3d at 975.
Two principles follow from the corroboration requirement. First, if a substantial step
must corroborate or confirm the defendant’s resolve to carry out his criminal plan, then the
criminal plan must logically precede that substantial step. Second, because a defendant is
charged with an attempt to commit a specific offense, and the requisite substantial step must
corroborate the intent to commit the specific offense, the substantial step must be toward the
specific offense and its elements. It cannot be generically bad behavior or a separate crime.
Beyond those two principles, little can be gleaned from the standards themselves. What
distinguishes “preliminary activities” that do not incur criminal liability from “substantial steps”
that do? When is an act sufficiently “overt” to corroborate a defendant’s resolve? At what point
in the timeline does prosecuting the inchoate plan amount to criminalizing “thoughts, desires, or
motives”? See Bilderbeck, 163 F.3d at 975.
A.
A survey of Sixth Circuit attempt cases provides some limiting principles. Most attempt
cases involve defendants caught red-handed, where the substantial step was obvious. However,
we can gain insight from a smaller set of cases that, like Ferguson’s, involve only inchoate plans
of criminal activity. See, e.g., United States v. Pennyman, 889 F.2d 104 (6th Cir. 1989);
Bilderbeck, 163 F.3d 971; United States v. Castanon-Campos, 519 F. App'x 403 (6th Cir. 2013);
Alebbini, 979 F.3d 537.
In Pennyman, 889 F.2d at 105, the defendant, a drug dealer, was captured on wiretap
talking to a co-conspirator about drug transactions. The defendant was recorded describing some
quantity of drugs and then stating he wanted a few more ounces. Id. The co-conspirator replied
that he couldn’t do anything about that until 10:00 am, roughly eight hours later. Id. In
Bilderbeck, 163 F.3d at 973, the defendant sought to buy drugs from a DEA confidential
informant. Because the informant, pursuant to DEA instructions, refused to “front” (provide,
with expected repayment from proceeds) the cocaine, the defendant promised to secure cash to
buy the drugs. Id. at 974. The defendant rounded up bidders and stated they could buy the drugs
No. 21-3800 United States v. Ferguson Page 10
the next day. Id. In Castanon-Campos, 519 F. App’x at 404-05, the defendant agreed to sell
drugs to an undercover agent. When the drugs came in, the defendant told the agent that they
were adulterated, and he could not sell them. Id. He then offered to sell the next week’s
shipment to the agent. Id. at 406. In Alebbini, 979 F.3d at 541-42, the defendant had numerous
conversations with his cousin and an undercover agent about joining ISIS in Syria. He had
previously attempted to make his way to Syria via Turkey but was sent back to the United States
because of an expired passport. Id. at 540. He then booked plane tickets from Cincinnati to
Turkey to Jordan and set off for the Cincinnati airport from his home in Dayton. Id. at 542.
After he picked up his tickets at the airport and headed towards security, the FBI arrested him.
Id. at 543.
Two traits unite these cases. First, all of the defendants had fully completed their
planning, as demonstrated by the fact that each had the means and ability to accomplish his
intended crime. Measuring their actions from the future crime and looking back, they had
nothing left to do but execute the actus reus. Second, the defendants intended to commit their
crimes imminently. In three of the four cases, the crime was a day or less away from being
committed. In Castanon-Campos, the crime was less than a week away with a date firmly set.
B.
Applying these principles to Ferguson’s case, we must conclude that he did not take a
substantial step, both because his plan was decidedly underdeveloped and exploratory in nature
and because his actions did not clearly corroborate an intent to commit the specific offense with
which he was charged—namely, kidnapping.
1.
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.
Even Ferguson’s April 18 meeting with Guiness predated the plan, so that meeting cannot
qualify as a substantial step. During the meeting on May 2, Ferguson stated that
“SecretAgentRandyBeans” needed to recruit a girl to make the fake domestic violence call, and
No. 21-3800 United States v. Ferguson Page 11
that other recruits would need to obtain rifles.2 On May 8, before the trio ever arrived at the
National Park, Ferguson indicated that he still needed to recruit more people. He also said that
the one person who was willing to participate, “SecretAgentRandyBeans,” the fourteen-year-old
too young to drive, needed to figure out how to join the group without attracting the attention of
his parents. Furthermore, Ferguson went to the National Park to determine whether that location
was suitable and whether they would move forward at all. Indeed, Ferguson did not expect a
“dry run” when he went with Guiness and Steve to the National Park on May 8. Even if he had
wanted to, Ferguson was not prepared on May 8 to effectuate a kidnapping in the near future.
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. See Castanon-Campos, 519
F. App’x at 404-05.
2.
Ferguson’s plan was not only in its preliminary planning stage, but also was unclear as to
whether it would involve a kidnapping if completed. Kidnapping requires, as an essential
element of the offense, a holding for an appreciable period. See Chatwin, 326 U.S. at 460. From
Ferguson’s repeated statements, it is unclear whether his plan would have involved such a
holding. 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
2
The government makes much of the fact that Ferguson brought his AR-15 rifle to the Camp Beldon Park
on May 2. Not only was this firearm legally owned, but Guiness requested that Ferguson bring his gun to the park
for purely recreational purposes. Ferguson’s possession of a legally owned firearm in a legally carried location for a
legal purpose is not corroborative of an intent to commit a kidnapping.
No. 21-3800 United States v. Ferguson Page 12
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.
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. His conduct on May 8 does not
support his conviction either. During that meeting with Guiness and Steve he described the
abandoned-house location as “perfect” and assessed lookout posts for potential recruits. He also
agreed, after Guiness suggested it, to determine how long it would take for officers to arrive at
the remote location. And, after the officers did arrive, Ferguson, Guiness, and Steve ran away
from the scene, demonstrating that Ferguson had no intent to carry out any kidnapping that day.
None of Ferguson’s acts unequivocally demonstrate a resolve to hold any officer against his or
her will for an appreciable period of time. These acts might corroborate an intent to decoy the
officers, and given the consistent theme of Ferguson’s plan, possibly rob them as well. They do
not, however, corroborate an intent to abduct or hold. Were this plan to come to fruition, a
holding might very well occur. But, 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.
C.
The government poses three arguments to support its claim that Ferguson committed a
substantial step towards kidnapping. All are unconvincing.
1.
The government argues that Ferguson committed a substantial step prior to his first
meeting with Guiness and Steve on May 2 through his Discord chats with the Spartan group and
his supposed acquisition of gear. However, Ferguson’s Discord chats preceded his first
suggestion of his plan for a raid and were only exploratory in nature, as the government itself
No. 21-3800 United States v. Ferguson Page 13
was forced to concede at oral argument. Furthermore, the 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.
2.
The government argues that Ferguson’s verbal and visual descriptions of his idea on May
2 and May 8 constituted a substantial step, because words alone are sufficient to sustain an
attempt conviction. The government mischaracterizes the law. Neither of the cases it cites,
United States v. Bailey, 228 F.3d 637 (6th Cir. 2000), and United States v. LaPointe, 690 F.3d
434 (6th Cir. 2012), stands for the proposition that words alone can constitute a substantial step
as a categorical matter. Both cases involved defendants whose words directly effectuated the
crime by their very utterance, rather than simply expressing a criminal idea. See Bailey, 228
F.3d at 639-40 (defendant found guilty of attempted enticement of a minor by messaging girls to
meet with him); LaPointe, 690 F.3d at 444 (defendant found guilty of attempted possession of
drugs because he called a dealer to arrange the transaction). Here, Ferguson’s words were
entirely aspirational in nature, discussing a criminal idea rather than effectuating a specific
crime. 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. On the contrary,
absent a defendant’s speech effectuating a crime, mere discussion of a criminal idea is not a
substantial step because a “fragment of the crime” is rarely committed by speech alone. See
Price, 134 F.3d at 351.
3.
The government argues that visiting a possible location for a future crime constitutes a
substantial step and cites Wesley, 417 F.3d 612, as support. In that case, Wesley asked a friend,
Deborah Reid, for details about her bank, saying he intended to rob the bank. Id. at 615. He also
asked her to drive the get-away car. Id. Reid contacted the police, who asked her to agree to
Wesley’s plan and operate as an informant. Id. Reid and Wesley drove to the bank (an hour
away from where Wesley lived) to scope out the interior and map their escape route. Id. After
surveying the bank, Wesley stated he needed to recruit a couple people but also stated that he
No. 21-3800 United States v. Ferguson Page 14
hoped to perform the robbery “tomorrow.” Id. at 615-16. Because Reid’s car recorder
malfunctioned, the police asked her to call Wesley again that night and recount the details of his
plan and verify his intent to rob the bank the next day. Id. at 616. Wesley stated he did not
know whether he was going to rob the bank the next day because he had not talked to anyone
else yet. Id. He then asked Reid why she was asking these questions again and over the phone,
making the police believe Reid’s cover was blown. Id. Wesley was arrested the next day at his
house (an hour away from the bank) and the police found no weapons or disguises. Id. The
court found the evidence was sufficient to sustain Wesley’s conviction, saying his overt acts
consisted of recruiting Reid to drive the get-away car, attempting to recruit another person to join
the robbery, and scoping out the bank. Id. at 620.
We cannot reconcile Wesley with the present facts. Wesley stated he was planning to rob
the bank the next day. Id. at 615. Ferguson gave no firm date for his plan, vaguely referencing
the possibility of performing a strike in June—more than a month into the future. Similarly,
Wesley—unlike Ferguson—required little more preparation to complete his plan. Wesley
equivocated about his plan in the phone call when he became suspicious of Reid, which tainted
his statement and allowed the jury to infer that Wesley was hedging to avoid detection.3 Wesley,
417 F.3d at 616, 619. Ferguson, however, stated numerous times, under circumstances which
bolster his credibility, that he was not ready to conduct the strike.
Most importantly, the specific underlying offense was never in question in Wesley.
Wesley planned to rob a specific bank, a crime which would have happened under any version of
his plan. The elements of the crime were never in question. Ferguson, however, was charged
with attempted kidnapping, a charge that was two layers removed from reality. Ferguson’s
charge not only required that he execute his plan but also required that he react a certain way to
evolving circumstances as his plan was being executed. Under these facts, Ferguson’s charged
attempted kidnapping is not analogous to Wesley’s attempted bank robbery. Rather, Ferguson’s
conduct would be analogous to Wesley’s if Wesley had been charged with attempted murder
because he said he might have to kill someone during the bank robbery. Wesley cannot control
our analysis.
3
In fact, this was precisely the inference the court drew in his case. Wesley, 417 F.3d at 619.
No. 21-3800 United States v. Ferguson Page 15
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 government correctly points out that Ferguson did not argue an entrapment defense,
which asks whether the government implanted a “criminal design” in the defendant’s mind. See
United States v. Pennell, 737 F.3d 521, 534 (6th Cir. 1984). The government correctly advances
its right to conduct sting operations with undercover informants. Both are beside the point.
Ferguson’s conviction fails not because he is blameless, but because he did not take a substantial
step towards the charged offense. The government did not provide one overt act toward the
kidnapping that was initiated by Ferguson alone.
On different facts, scoping out the scene of a future crime could constitute a substantial
step. In a different circumstance, even the actions of undercover informants could corroborate a
defendant’s criminal intent. They do not do so here, however, where every overt act was
initiated and shepherded by the FBI from beginning to end. The actions of Guiness and Steve
are not corroborative of Ferguson’s resolve to commit a kidnapping.
V.
For the foregoing reasons, we reverse the judgment of the district court.
No. 21-3800 United States v. Ferguson Page 16
_________________
DISSENT
_________________
JOHN K. BUSH, Circuit Judge, dissenting. This appeal presents classic facts from which
a reasonable jury could have gone either way as to the defendant’s guilt. It is the role of the jury,
not us, to determine which version of the evidence to believe.
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. He carried his assault
weapon during what could be viewed as part of the planning for a kidnapping. As the majority
acknowledges, the defendant hatched a scheme online to “ambush” and “subdue” a law
enforcement officer and “strip him of all his weapons.” Slip Op. at 3; R. 78, PageID 807.
Ferguson was twenty years old—old enough to fight in the U.S. Army, in which he had tried to
enlist. And, as the majority also acknowledges, Ferguson stored his AR-15 along with
“ammunition, magazines, tactical gear, and a guerilla warfare manual” at his residence. Slip Op.
at 5; R. 79, PageID 996–1005. Such weaponry, regretfully, has seen increased use by troubled
youth who commit violent and deadly crimes, sometimes after their online “red flag” messages
go unheeded by law enforcement.
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.
Though reasonable jurors could have found Ferguson was simply engaged in make-
believe, there was enough evidence for them to find that he planned to kidnap for real. Under
No. 21-3800 United States v. Ferguson Page 17
governing Sixth Circuit case law, there was sufficient proof for a reasonable jury to determine
that Ferguson took a substantial step towards commission of the crime of kidnapping under
18 U.S.C. § 1201 and that, had his plan succeeded, it would have satisfied the holding
requirement for kidnapping under that statute.
The jury did not take their burden lightly during this case. Following the one and half
day trial, the jury deliberated for two days before reaching a unanimous verdict. After a day of
deliberation, the jury notified the district court that they were unable to reach a unanimous
decision. In response, the district court provided an Allen charge—the pattern instruction given
when a jury does not unanimously agree. A day later, the jury returned a guilty verdict, but the
jury wanted to express sympathy for Ferguson and asked to write him a note. The note
expressed that the members of the jury believed Ferguson to be “a good young man with so
much potential” who “will do good things” and that he should “[not] let this define [him].” R.
61, PageID 417. The jury’s difficulty in deliberation and desire to express sympathy for
Ferguson underscore how difficult the facts of this case are and demonstrate the importance of
not supplanting their verdict with our own.
As the majority admits, they grant extraordinary relief, Slip Op. at 1, which requires a
determination that no “rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” United States v. Burris, 999 F.3d 973, 976 (6th Cir. 2021) (quoting
Jackson v. Virginia, 443 U.S. 307, 319 (1979)). When considering the proof to this end, we do
not “reweigh the evidence, reevaluate the credibility of witnesses, or substitute our judgment for
that of the jury,” and we view all evidence in the light most favorable to the prosecution. United
States v. Wesley, 417 F.3d 612, 617 (6th Cir. 2005). While the evidence could support a finding
of innocence, it also supports a finding of guilt. We therefore must respect the jury’s verdict.
I respectfully dissent.
I.
First, let’s consider the proof that supports the jury’s finding that Ferguson took a
substantial step towards attempting the kidnapping. On appeal he contends, and the majority
agrees, that his actions were only “blustery talk” or mere intention. Slip Op. at 8. To avoid a
No. 21-3800 United States v. Ferguson Page 18
conviction for mere thoughts and stated desires rather than actual criminal conduct, the Sixth
Circuit requires that the defendant take what we call a “substantial step.” United States v.
Pennyman, 889 F.2d 104, 106 (6th Cir. 1989). It “consist[s] of objective acts that mark the
defendant’s conduct as criminal in nature.” Id. (cleaned up). We must determine “whether any
reasonable person could find that the acts committed would corroborate the firmness of a
defendant’s criminal intent.” United States v. Bilderbeck, 163 F.3d 971, 975 (6th Cir. 1999).
A reasonable person could find Ferguson’s acts confirmed his criminal intent. Before
interacting with either of the FBI’s confidential sources, Ferguson stated his plan for criminal
conduct in the Spartan 75’s Discord chat. Further, when he met with Guiness and Steve on May
2, 2020, Ferguson practiced tactical exercises with them, and they all discussed the plan at
length. It was also during these exercises that Ferguson carried his AR-15.1 Ferguson then
repeated his plan on May 8, 2020, while inspecting a potential location for the ambush, and he
conducted a practice run by placing a fake phone call to determine the response time of the park
rangers. When presented with the opportunity to back out of the plan, Ferguson reiterated his
desire to continue with the plan. All of these actions could serve as objective corroboration of
the defendant’s criminal intent. See Bilderbeck, 163 F.3d at 975.
This conclusion is firmly supported by our decision in United States v. Wesley. 417 F.3d
612 (6th Cir. 2005). Wesley was convicted of an attempted robbery of a bank because his
actions were determined to be a substantial step rather than mere preparation. Id. at 621. Like
Ferguson, Wesley traveled to inspect the potential location of the crime, attempted to recruit
other members to participate in the crime, and did not disavow his plan when given the chance.
Id. at 618–20. Wesley was arrested without a weapon or disguise and was not near the bank he
planned to rob, so his attempted robbery might not have been imminent. Id. at 619. But we still
held that the evidence was sufficient to support a reasonable jury’s finding that Wesley had taken
the requisite substantial step. So too here the proof supports such a finding of a substantial step.
1
The majority notes that Ferguson had legal ownership of his AR-15 and that “Guiness requested that
Ferguson bring his gun to the park for purely recreational purposes.” Slip Op. at 11 n.2. True enough. But a
reasonable jury did not have to put on blinders to the facts that Ferguson owned an assault rifle and had
demonstrated his willingness to carry it to the park. United States v. Castro, 960 F.3d 857, 866 (6th Cir. 2020)
(“intent can be proved through circumstantial evidence”). That proof supported the determination that Ferguson was
not a pretend soldier but actually a credible threat.
No. 21-3800 United States v. Ferguson Page 19
Like Wesley, Ferguson had a plan to commit a crime, had taken steps to scope out the location,
had recruited would-be participants in the plan, and had reiterated his commitment to the plan
when asked if he wanted to back out. Id. In fact, Ferguson had gone further with his planning
than had Wesley, given that Ferguson had engaged in special training for the plan and had
brought an actual weapon—the AR-15—to that exercise.
United States v. Alebbini also provides an apt analogy to demonstrate that Ferguson’s
actions were enough to qualify as a substantial step towards commission of a crime. See 979
F.3d 537 (6th Cir. 2020). Alebbini designed a plan to join the Islamic State of Iraq and Syria
(ISIS), discussed the plan with a co-conspirator, and began traveling to where the crime would
be completed. Id. at 547. Alebbini was arrested at the Cincinnati-Northern Kentucky
International Airport, half a world away from Turkey, his ticketed destination, and Syria, his
battlefield destination—with lots of time and space to contemplate whether he should back out
from his plan to join ISIS. Nonetheless, we upheld Alebbini’s conviction. Here the facts
supporting a substantial step are even more compelling than they were in Alebbini. Ferguson
was arrested at the actual location of his planned criminal conduct. Like Alebbini, he had
designed a plan and discussed it with others. But Ferguson’s case presents even more evidence
of a substantial step. Unlike Alebbini, Ferguson had made it to his battlefield—the national
park—to inspect and approve it. Even if Ferguson could have withdrawn between the time of his
arrest and when the kidnapping would have occurred, “the possibility of withdrawal,
abandonment, or renunciation does not” provide a defense for him. Id. at 548 (emphasis
original). As Alebbini confirms, Ferguson already had traveled far enough and had done enough
for a reasonable jury to find he had taken the requisite substantial step.
In holding otherwise, the majority opinion puts us at odds not only with our prior binding
precedent but also with at least one of our sister circuits. In United States v. Sanchez, 615 F.3d
836 (7th Cir. 2010), the Seventh Circuit held a substantial step had occurred even though the
kidnapping was not imminent. See 615 F.3d at 844. It was enough that the defendant, Sanchez,
was “fully committed and well along the way to putting the kidnapping in motion.” Id. In fact,
“the kidnapping was not imminent at the moment Sanchez was arrested” since he needed at least
a week to complete the last steps of preparation for the kidnapping. Id. Just as Ferguson’s plan
No. 21-3800 United States v. Ferguson Page 20
was not necessarily imminent, a substantial step still had occurred because the other actions he
took put him well along the way to putting the kidnapping in motion.
For the actions Ferguson did take, along with his expressed commitment to not withdraw
from his plan, a reasonable jury could find that Ferguson took a substantial step towards
kidnapping the park rangers.2
II.
Second, let’s consider the evidence that supports the jury’s finding that Ferguson planned
to engage in the requisite holding for a kidnapping to occur. Ferguson claims proof was lacking
of the requisite benefit of “ransom or reward or otherwise” under 18 U.S.C. § 1201. He also
argues that there was no evidence that the park rangers would have been restrained long enough
for the requisite holding. Appellants Br. at 36–37.
Ferguson is mistaken about the benefit that must be derived by a defendant to satisfy the
holding requirement. In fact, benefit is broadly defined. See Gooch v. United States, 297 U.S.
124, 128 (1936). The Supreme Court first considered this in Gooch, where police officers were
kidnapped and seriously injured. 297 U.S. at 125. The Gooch facts line up remarkably well with
the plan Ferguson designed, which involved luring the park rangers into an ambush before
potentially inflicting serious bodily injury, or even death, upon them. As the Supreme Court
explained in Gooch, “Holding an officer to prevent the captor’s arrest is something done with the
expectation of benefit to the transgressor.” Gooch, 297 U.S. at 128. In contemplation of his
plan, Ferguson expected to receive a similar benefit by temporarily holding the rangers and by
ensuring they could not call for assistance. The Court in Gooch even clarified that the broad
term “otherwise” would encompass the benefit of preventing one’s arrest even if the word
“reward” did not include that benefit. 297 U.S. at 128.
2
The majority appears to find it relevant to the substantial-step analysis that FBI informants were involved
with Ferguson. Slip Op. at 15. As the majority acknowledges, however, Ferguson does not argue an entrapment
defense, and the government has every “right to conduct sting operations with undercover informants.” Id. at 15.
Again, the majority conflates its role with that of the jury. The latter was entitled to take the government’s
involvement into account in determining Ferguson’s guilt or innocence. But we are not to second-guess the
government’s methods where, as here, the defendant does not challenge them. In any event, setting aside the actions
that the FBI informants took, the fact remains that Ferguson himself engaged in actions from which a reasonable
jury could determine he took the requisite substantial step towards commission of a crime.
No. 21-3800 United States v. Ferguson Page 21
And as for the required period of physical or mental restraint, Chatwin v. United States,
326 U.S. 455 (1946), establishes that it merely must be “an appreciable period”: “The act of
holding a kidnap[p]ed person for a proscribed purpose necessarily implies an unlawful physical
or mental restraint for an appreciable period against the person’s will and with a willful intent so
to confine the victim.” Id. at 460 (emphasis added). The Supreme Court’s use of the word
“appreciable” indicates that the time elapsed during the crime does not have to be all that long.
Rather, “appreciable” indicates that the period need only be “[c]apable of being measured or
perceived.” Appreciable, Black’s Law Dictionary (11th ed. 2019). In light of that definition,
Chatwin establishes that any period of time will satisfy the holding period provided that during
this period there is a restraint of the victim against the victim’s will, done with intent to confine
the victim.
Perhaps in recognition that there is no minimum time requirement for a kidnapping
holding, there was no challenge raised in United States v. Small¸ 988 F.3d 241 (6th Cir. 2021), as
to whether an appreciable period of holding had occurred in that case. The facts in Small
resembled Ferguson’s planned abduction of the park rangers. Small and the other perpetrators
restrained the victim at gunpoint in her home and bound her arms and feet to prevent her from
resisting or calling the police. Id. at 247, 250. After restraining her, they stole several items
from the home before leaving the victim so they could escape without resistance. Id. at 247,
250–52. In the same way, Ferguson planned to restrain the park rangers at gunpoint before
stealing valuable items from the rangers and escaping without any further resistance from other
law enforcement officers.
In Small, the victim was restrained for around 20 minutes. Id. at 248. On appeal, the
defendants challenged the “ransom or reward or otherwise” portion of the kidnapping statute but
did not challenge whether a holding of an appreciable period had taken place. That the time
period was not at issue indicates that no party questioned that at least a 20-minute seizure
satisfies the holding requirement.
Judged against this standard, the evidence supports a jury finding that Ferguson’s planned
action would have resulted in the requisite holding of the victim for an appreciable period. True,
as the majority says, Ferguson “did not know what he wanted to do with the officers other than
No. 21-3800 United States v. Ferguson Page 22
take their gear and leave them with a ‘calling card.’” Slip Op. at 8. But at a minimum, the
majority agrees that Ferguson wanted to make an officer exit his vehicle, take off his gear (body
armor, gun, and any other equipment), and tag the officer with the calling card. This would all
be happening at gunpoint according to Ferguson, and he would take the officer’s equipment to
prevent him from calling for help. These actions that Ferguson had already decided upon, had
they occurred, would have resulted in the park rangers’ restraint for a measurable length of
time—certainly, at least twenty minutes; likely more. Stripped of their gear and means of
transportation and communication, the rangers would have been stranded in the forest—far more
isolated from civilization than was the victim trapped in her house in Small.
Notably, the jury could find that Ferguson planned not just to rob the park rangers but
also to confine them in the national park while he made his escape. Had he only intended a theft
of property, this case would be like United States v. Howard. 918 F.2d 1529 (11th Cir. 1990).
In Howard, an undercover DEA agent planned to buy drugs from the defendants with the money
he had in the trunk of his car, and the defendants robbed the agent of the money at gunpoint. Id.at 1531–32. The Eleventh Circuit determined that there was no attempted kidnapping based on
there being “no evidence in the record that appellants intended to detain [the agent] in the [car]
beyond the few seconds it would take to secure his car keys and collect the ‘buy’ money from his
trunk.” Id. at 1536.
But Ferguson schemed for more. Ferguson’s plan, if carried out, would have left the park
rangers trapped amongst the trees, with no equipment, no vehicle for escape, and no means to
communicate for help. Simply put, the rangers would have been not just robbed. They also
would have been kidnapped.
III.
This is a difficult case. On the one hand Ferguson could be viewed as a harmless
character. But on the other, he could just as easily be viewed as a potentially very dangerous
one. There is sufficient proof under the standard of Jackson v. Virginia to support the jury’s
verdict that Ferguson had taken a substantial step in his criminal conduct that would have
No. 21-3800 United States v. Ferguson Page 23
resulted in the kidnapping of the park rangers. The district court’s judgment therefore should be
affirmed.