Barry Gordon Croft, Jr. v. United States

Petitioner Barry G. Croft, Jr. was one of several citizens targeted in 2020 by the FBI and a tightly controlled cohort of paid confidential agents/informants, all working together on a coordinated FBI team to ensnare these citizens in an FBIpromoted “conspiracy” to “kidnap” Michigan’s governor, who was in on the hoax and updated regularly, all timed for splashy arrests before the November 3, 2020 election. Petitioner has endured two trials on these charges, with his defense including that he was entrapped by the FBI and its agents/informants involved in the sting. The jury in Trial 1 acquitted two co-defendants but was unable to reach verdicts as to Petitioner and co-defendant Adam Fox. In Trial 2, the government eked out a conviction but only because the district court arbitrarily barred the defense from using Evid.R. 801(d)(2)(D) to present, as non-hearsay substantive evidence, the numerous vicarious admissions by the FBI agents/informants within the scope of their assignment, unless they qualified under Evid.R. 801(d)(2)(B) or (C) as statements expressly authorized by their FBI bosses as “scripted words.” In so doing, the court forced Petitioner to present his entrapment defense without being allowed to use the one evidence rule most suited to it, Evid.R. 801(d)(2)(D). The Sixth Circuit agreed the district court erred, but found it was not a constitutional error because Petitioner could have himself testified about some of the admissions and it held that the error was “harmless” under the government-favorable Kotteakos standard. Three questions are presented: 1. Did the district court deny Petitioner’s constitutional right to present a defense, and thereby commit a trial error of constitutional dimension, when the district court applied the Federal Rules of Evidence in such an arbitrary manner as