By Adam Ferrise
cleveland.com
CLEVELAND — A federal appeals court overturned the conviction of a Cleveland man who talked about plans to ambush police officers to steal their weapons and build a militia.
The 6th U.S. Circuit Court of Appeals, in a 2-1 decision, last week found that a jury wrongfully found Christian Ferguson guilty because he never took any real steps to carry out the plan.
The opinion, written by Judge Alice Batchelder and joined by Stephanie Dawkins Davis, also said informants working with the FBI pushed Ferguson into the most concrete steps he took, including luring park rangers inside a national park to watch how they responded to a 911 call.
“In a different circumstance, even the actions of undercover informants could corroborate a defendant’s criminal intent,” the opinion said. “They do not do so here, however, where every overt act was initiated and shepherded by the FBI from beginning to end.”
Thomas Weldon, a spokesman for the U.S. attorney’s office, and Timothy Sweeney, Ferguson’s attorney, declined comment.
The FBI arrested Ferguson in May 2020. A jury found him guilty of two counts of attempted kidnapping after a two-day trial in August 2021. Senior U.S. District Judge Solomon Oliver sentenced Ferguson to four years and two months in prison.
Evidence at trial focused on messages in the encrypted application Discord that Ferguson exchanged with two FBI informants and testimony from the informants who spoke with Ferguson about his plans.
Ferguson, then 20, led the chatroom called the 75th Spartans and talked about wanting to create a militia and revolt against tyranny. Part of building the militia would entail orchestrating raids on police to steal their weapons and body armor.
An FBI informant infiltrated the chatroom and inquired about meeting Ferguson and holding a training session.
Ferguson told the informant about his plan, but he also said he had no timeline for putting the plan into action. He later talked about either robbing officers of their guns or killing them.
On May 5, 2020, the informant sent Ferguson a message of a map of an abandoned house in the Cuyahoga Valley National Park and suggested checking out the location as a possible area to conduct a raid.
Three days later, Ferguson and the two FBI informants went to look at it. The informant suggested they do a “dry run,” and Ferguson agreed. An informant called 911, and the three watched as park rangers showed up. The group fled into the woods.
FBI agents waited until the group walked back to their cars and arrested Ferguson.
The appeals court found that there wasn’t enough evidence to convict Ferguson on the attempted kidnapping charge. Batchelder found that his plans were inconsistent and constantly changing.
He never had a set time for carrying out any plan and never took a “substantial step” toward executing it, the appeals court ruled. The court also found that the FBI tainted the investigation by prompting several actions — including suggesting the call to 911 and picking the location.
“Ferguson’s conviction fails not because he is blameless, but because he did not take a substantial step toward the charged offense,” Batchelder wrote. “The government did not provide one overt act toward the kidnapping that was initiated by Ferguson alone.”
Judge John Bush disagreed, writing in his dissent that there was plenty of evidence to convict Ferguson and that the jury, not the appeals court, should determine if Ferguson was guilty or not.
He said the only reason no one was harmed in the plot was because the FBI stepped in and arrested Ferguson. Bush also wrote that Ferguson was serious enough about his plan to have an AR-15 and other equipment at his home, which the FBI seized as part of its case.
“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,” Bush wrote.
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