CASE NO.

_____________

______________________________________________________________________________

IN THE
Supreme Court of the United States
___________________________________________

BARRY G. CROFT, JR., Petitioner,

v.

UNITED STATES OF AMERICA, Respondent.

___________________________________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals
for the Sixth Circuit

PETITION FOR A WRIT OF CERTIORARI

Timothy F. Sweeney (OH 0040027)*

MEMBER OF THE BAR OF THIS COURT
LAW OFFICE OF TIMOTHY F. SWEENEY
The 820 Building, Suite 430
820 West Superior Ave.
Cleveland, Ohio 44113-1800
Phone: (216) 241-5003
Email: [email protected]
*Counsel of Record

Counsel for Petitioner Barry G. Croft, Jr.

 QUESTIONS PRESENTED

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 FBI-

promoted “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

i
to effectively remove Evid.R. 801(d)(2)(D) from the evidence rules which Petitioner
was permitted to utilize in presenting his entrapment defense to the government’s
conspiracy charges?

2. Is the district court’s error in removing Evid.R. 801(d)(2)(D) from the

evidence rules which Petitioner was permitted to utilize in presenting his entrapment
defense subject to the more rigorous Chapman harmless error standard which
requires the government to prove that the error was harmless “beyond a reasonable
doubt,” a standard the government cannot meet in the circumstances of this case?

3. Did the Sixth Circuit impermissibly burden Petitioner’s exercise of his

Fifth Amendment right not to testify at his trial, and otherwise violate his rights,
when––in determining whether the district court’s error was harmless or not when it
barred Petitioner from presenting the 801(d)(2)(D) statements––the appellate court
held that Petitioner’s failure to testify in his own defense relegated the district court’s
error to review for harmlessness under the government-favorable Kotteakos standard
and not the more rigorous Chapman standard?

ii
 PARTIES TO THE PROCEEDING

Petitioner is Barry G. Croft, Jr., who was one of the Defendants-Appellants in

the court below, the U.S. Court of Appeals for the Sixth Circuit. Respondent, the

United States of America, was the Plaintiff-Appellee in the court below.

The other Defendant-Appellant in the court below, Adam D. Fox, is not joined

in this Petition and is not represented by the undersigned counsel for Petitioner Croft.

DIRECTLY RELATED CASES

1. United States v. Barry G. Croft, Jr., Case No. 23-1029, U.S. Court of Appeals,
Sixth Circuit, opinion and judgment entered April 1, 2025 (consolidated for
argument and decision with Case No. 23-1014, USA v. Fox).

2. United States v. Adam D. Fox, Case No. 23-1014, U.S. Court of Appeals, Sixth
Circuit, opinion and judgment entered April 1, 2025 (consolidated for
argument and decision with Case No. 23-1029, USA v. Croft).

3. United States v. Barry G. Croft, Jr., Case No. 1:20-cr-00183-RJJ-2, U.S.

District Court, Western District of Michigan, denying defense motion in limine
in relevant part on February 2, 2022 (R. 439), denying renewed motion in
limine in part on July 28, 2022 (R. 692), and entering judgment of conviction
and sentence against Croft on December 28, 2022 (R. 804).

4. United States v. Adam D. Fox, et al., Case No. 1:20-cr-00183-RJJ, U.S. District
Court, Western District of Michigan.

iii
 TABLE OF CONTENTS

QUESTIONS PRESENTED ........................................................................................... i

PARTIES TO THE PROCEEDING ............................................................................. iii

DIRECTLY RELATED CASES .................................................................................... iii

TABLE OF CONTENTS ............................................................................................... iv

TABLE OF AUTHORITIES ........................................................................................ vii

PETITION FOR A WRIT OF CERTIORARI ................................................................ 1

OPINIONS BELOW ...................................................................................................... 1

JURISDICTION............................................................................................................. 1

CONSTITUTIONAL PROVISIONS AND RULES INVOLVED.................................. 2

STATEMENT OF CASE................................................................................................ 3

A. Introduction and summary of case. ...................................................................... 3

B. The district court’s adverse ruling on the evidence of the statements by

the FBI’s agents/informants. ..................................................................................... 6

C. The trial evidence nonetheless suggested a strong case for Croft’s

acquittal; the barred evidence would have made the difference in his favor. ....... 11

1. Dublin, Ohio ...................................................................................................... 11

2. Vac Shack meetings on June 20 and July 3, 2020 .......................................... 12

3. FTX in Cambria, WI ......................................................................................... 13

4. Peebles, Ohio..................................................................................................... 14

5. July through September 2020: chats, texts, and other activities,

but not with Croft ................................................................................................. 15

6. Daytime drive-by of the Michigan cottage on August 29, 2020 ...................... 16

7. FTX in Luther, MI ............................................................................................ 17

8. Nighttime drive-by of the Michigan cottage on September 12, 2020 ............. 19

9. The FBI’s ruse to get free gear enables the October 2020 arrests. ................ 20

iv
 D. The Sixth Circuit affirms. ................................................................................... 21

REASONS FOR GRANTING THE WRIT .................................................................. 23

I. The district court denied Petitioner’s constitutional right to present a defense,

and committed a trial error of constitutional dimension, when the court
applied the Federal Rules of Evidence in such an arbitrary manner as to
effectively remove Evid. Rule 801(d)(2)(D) from the evidence rules which
Petitioner was permitted to utilize in presenting his entrapment defense to
the government’s conspiracy charges. ..................................................................... 23

II. Because the district court’s error in removing Evid. Rule 801(d)(2)(D) from
the evidence rules which Petitioner was permitted to utilize in presenting his
entrapment defense is a constitutional error, the error is subject to the Chapman
harmless error standard which requires the government to prove that the error
was harmless “beyond a reasonable doubt,” a standard the government
cannot meet in the circumstances of this very close case. ...................................... 30

III. The Sixth Circuit impermissibly burdened Petitioner’s exercise of his

Fifth Amendment right not to testify at his trial, and otherwise violated his
rights, when––in determining whether the district court’s error was harmless
or not when it barred Petitioner from presenting the 801(d)(2)(D) statements––
the appellate court held that Petitioner’s failure to testify in his own defense
relegated the district court’s error to review for harmlessness under the
government-favorable Kotteakos standard and not the more rigorous
Chapman standard................................................................................................... 37

CONCLUSION............................................................................................................. 40

APPENDIX CONTENTS

APPENDIX A
United States v. Adam D. Fox and Barry G. Croft, Jr., Case Nos. 23-1014 & 23-
1029, 134 F.4th 348, 2025 U.S. App. LEXIS 7570
(6th Cir. April 1, 2025) ........................................................................... Appx 001

APPENDIX B
United States v. Adam D. Fox and Barry G. Croft, Jr., Case No. 1:20-cr-183-
RJJ, U.S. District Court, Western District of Michigan, order denying defense
motion in limine in relevant part on
February 2, 2022 (R. 439) ...................................................................... Appx 045

v
APPENDIX C
United States v. Adam Fox and Barry G. Croft, Jr., Case No. 1:20-cr-183-RJJ,
U.S. District Court, Western District of Michigan, order denying renewed
motion in limine in part on July 28, 2022 (R. 692) ............................... Appx 072

APPENDIX D
United States v. Barry G. Croft, Case No. 1:20-cr-183-RJJ-2, U.S. District
Court, Western District of Michigan, Judgment of Conviction and Sentence,
dated December 28, 2022 (R. 804) ......................................................... Appx 075

vi
 TABLE OF AUTHORITIES
Cases

Brooks v. Tennessee, 406 U.S. 605 (1972) ............................................................ 39, 40

Chambers v. Mississippi, 410 U.S. 284 (1973) ............................................... 23, 24, 29

Crane v. Kentucky, 476 U.S. 683 (1986) ............................................................... 23, 24

Ellis v. United States, 941 A.2d 1042 (D.C. App. 2008) ....................................... 31, 37

Green v. Georgia, 442 U.S. 95 (1979) .......................................................................... 23

Griffin v. California, 380 U.S. 609 (1965) ................................................................... 40

Holmes v. South Carolina, 547 U.S. 319 (2006) ................................................... 23, 24

Jackson v. Virginia, 443 U.S. 307 (1979) .................................................................... 32

Kercheval v. United States, 274 U.S. 220 (1927) ....................................................... 37

Koontz v. St. Johns River Water Mgmt., 570 U.S. 595 (2013) ................................... 39

Kotteakos v. United States, 328 U.S. 750 (1946) ........................................... 23, 38, 39

Lefkowitz v. Cunningham, 431 U.S. 801 (1977) ......................................................... 39

Lippay v. Christos, 996 F.2d 1490 (3d Cir. 1993) ................................................. 26, 28

Neder v. United States, 527 U.S. 1 (1999) .................................................................. 30

Rock v. Arkansas, 483 U.S. 44 (1987) ......................................................................... 25

Sherman v. United States, 356 U.S. 369 (1958) ........................... 26, 27, 28, 30, 37, 39

Simmons v. United States, 390 U.S. 377 (1968)................................................... 37, 38

Strickland v. Washington, 466 U.S. 668 (1984).......................................................... 32

Sullivan v. Louisiana, 508 U.S. 275 (1993)................................................................. 31

Taylor v. Illinois, 484 U.S. 400 (1988) ........................................................................ 23

United States v. Barry G. Croft, 134 F.4th 348,

2025 U.S. App. LEXIS 7570 (6th Cir. April 1, 2025) ............ 1, 22, 23, 24, 29, 30, 32

United States v. Branham, 97 F.3d 835 (6th Cir. 1996) ................................ 25, 26, 37

vii
United States v. Carter, 491 F.2d 625 (5th Cir. 1974) ............................................... 31

United States v. Corona, 41 Fed. Appx. 33 (9th Cir. 2002)........................................ 31

United States v. Evans, 728 F.3d 953 (9th Cir. 2013)................................................ 31

United States v. Harris, 733 F.2d 994 (2d Cir. 1984) ................................................ 31

United States v. Ignasiak, 667 F.3d 1217 (11th Cir. 2012) ....................................... 32

United States v. Kattar, 840 F.2d 118 (1st Cir. 1988) ............................................... 25

United States v. Kettles, 970 F.3d 637 (6th Cir. 2020) .............................................. 30

United States v. Lane, 474 U.S. 438 (1986)................................................................ 30

United States v. Luisi, 482 F.3d 43 (1st Cir. 2007) .................................................... 27

United States v. Mirabal, 98 F.4th 981 (9th Cir. 2024) ....................................... 25, 26

United States v. Molt, 615 F.2d 141 (3rd Cir. 1980) .................................................. 32

United States v. Morgan, 581 F.2d 933 (D.C. Cir. 1978) ..................................... 25, 26

United States v. Perkins, 937 F.2d 1397 (4th Cir. 1991) ........................................... 24

United States v. Reed, 167 F.3d 984 (6th Cir. 1999).................................................. 26

United States v. Rhynes, 218 F.3d 310 (4th Cir. 2000) (en banc).............................. 32

United States v. Scheffer, 523 U.S. 303 (1998) .................................................... 24, 25

United States v. Yildiz, 355 F.3d 80 (2nd Cir. 2004).................................................. 28

Washington v. Texas, 388 U.S. 14 (1967) ............................................................. 23, 24

Constitutional Provisions, Rules, and Statutes

U.S. Constitution, Fourth Amendment ................................................................ 38, 39

U.S. Constitution, Fifth Amendment .................................. 2, 10, 23, 25, 37, 38, 39, 40

U.S. Constitution, Sixth Amendment ................................................... 2, 23, 25, 39, 40

18 U.S.C. 1201(a) ........................................................................................................... 3

18 U.S.C. 2332a(a)(2) ..................................................................................................... 3

Federal Rules of Evidence, Rule 801(d)(2)(B) ........................................................... 2, 8

viii
Federal Rules of Evidence, Rule 801(d)(2)(C) ..................................................... 2, 8, 29

Federal Rules of Evidence, Rule 801(d)(2)(D)..................................................... passim

Federal Rules of Evidence, Rule 801(d)(2)(E) ................................................... 2, 28, 29

Other Authorities

T. Barrabi, Michigan Gov. Whitmer was aware of kidnapping plot,

state AG says, FOX NEWS (Oct. 9, 2020)................................................................... 21

Christopher B. Mueller & Laird C. Kirkpatrick, 4 FEDERAL EVIDENCE

(4th ed. May 2021).................................................................................................... 28

Anne B. Poulin, Party Admissions in Criminal Cases: Should the Government

Have to Eat Its Words?, 87 MINN. L. REV. 401, 456 (2002) ......................... 26, 27, 28

The Truman Show (movie) ........................................................................................ 8, 9

ix
 PETITION FOR A WRIT OF CERTIORARI

Petitioner Barry G. Croft, Jr. respectfully petitions for a writ of certiorari to

review the judgment of the U.S. Court of Appeals for the Sixth Circuit, dated April 1,

2025, in United States v. Barry G. Croft, Jr., Case No. 23-1029, 134 F.4th 348, 2025

U.S. App. LEXIS 7570 (6th Cir. April 1, 2025).

OPINIONS BELOW

The opinion of the Sixth Circuit for which Petitioner seeks a writ of certiorari

is reported at United States v. Barry G. Croft, Jr., Case No. 23-1029, 134 F.4th 348,

2025 U.S. App. LEXIS 7570 (6th Cir. April 1, 2025) (Appx 001).

The opinions of the U.S. District Court for the Western District of Michigan,

which denied the defense motion in limine in relevant part on February 2, 2022 (R.

439), and denied renewal of that motion in limine on July 28, 2022 (R. 692), are

unreported. (Appx 045, Appx 072).

The judgment of conviction and sentence in Petitioner’s criminal case, as

entered in the Western District of Michigan on December 28, 2022 (R. 804), is

unreported. (Appx 075).

JURISDICTION

The Sixth Circuit issued its opinion and judgment on April 1, 2025. (Appx 001.)

The time for filing Petitioner’s petition for a writ of certiorari was extended by the

Honorable Brett Kavanaugh, Associate Justice of this Court and Circuit Justice for

the Sixth Circuit, to July 30, 2025. The jurisdiction of this Court is invoked under 28

U.S.C. §1254(1).

1
 CONSTITUTIONAL PROVISIONS AND RULES INVOLVED

The Fifth Amendment, which provides in part:

No person shall be held to answer for a capital, or otherwise infamous

crime, unless on a presentment or indictment of a grand jury, . . . ;
nor shall any person be subject for the same offense to be twice put
in jeopardy of life or limb; nor shall be compelled in any criminal case
to be a witness against himself, nor be deprived of life, liberty, or
property, without due process of law; nor shall private property be
taken for public use, without just compensation.

The Sixth Amendment, which provides in part:

In all criminal prosecutions, the accused shall enjoy the right to a

speedy and public trial, by an impartial jury . . . , and to be informed
of the nature and cause of the accusation; to be confronted with the
witnesses against him; to have compulsory process for obtaining
witnesses in his favor, and to have the assistance of counsel for his
defense.

Rule 801(d)(2) of the Federal Rules of Evidence, which provides:

(d) Statements That Are Not Hearsay. A statement that meets the
following conditions is not hearsay:
....
(2) An Opposing Party’s Statement. The statement is offered
against an opposing party and:

(A) was made by the party in an individual or representative

capacity;
(B) is one the party manifested that it adopted or believed to
be true;
(C) was made by a person whom the party authorized to make
a statement on the subject;
(D) was made by the party’s agent or employee on a matter
within the scope of that relationship and while it existed;
or
(E) was made by the party’s coconspirator during and in
furtherance of the conspiracy.

The statement must be considered but does not by itself establish the
declarant’s authority under (C); the existence or scope of the
relationship under (D); or the existence of the conspiracy or

2
 participation in it under (E).

If a party’s claim, defense, or potential liability is directly derived

from a declarant or the declarant’s principal, a statement that would
be admissible against the declarant or the principal under this rule
is also admissible against the party.

STATEMENT OF CASE

A. Introduction and summary of case.

Croft’s case involves charges that, during the Covid pandemic in 2020, he was

part of a “conspiracy” to kidnap the governor of Michigan in violation of 18 U.S.C.

1201(a), and to use a “weapon of mass destruction” in violation of 2332a(a)(2). Much

of the case was founded on Croft having a big mouth, being a showoff who loudly

spouted anti-government sentiments, and talking a lot of nonsense to likeminded

people who were likewise disgusted by the Covid lockdowns, the glaring hypocrisy of

elected officials about Covid restrictions, and the violent “mostly peaceful” George

Floyd-inspired riots which then dominated the news and so many people’s emotions.

No one was injured or endangered by Croft’s alleged crimes, which were the

result of an orchestrated government hoax which targeted Croft and others. Croft did

not, for example, actually commit acts of violence. That distinguishes him from the

hundreds if not thousands of people who engaged in violence, committed assaults,

torched police and other property, and burned buildings, all as memorably

characterized the traumatic Summer of 2020. Croft only talked a big game, and,

unluckily for him, did so unwittingly into government microphones of the confidential

agents/informants whose assignment from the FBI was to rile him up and secretly

record his rantings for later prosecution, landing him in prison for 235 months.

3
 It was Croft’s angry talk with men like Adam Fox which got them on the FBI’s

radar, allegedly because it raised concerns of domestic terrorism and thus supposedly

warranted a “terrorism enterprise investigation,” or “TEI,” the highest level within

the FBI. The “TEI” designation enabled law enforcement’s use of virtually unlimited

resources against these fellow citizens. Leading this TEI against Croft, Fox, and

others were FBI Special Agents Jayson Chambers and his colleague Henrik Impola.

SA’s Chambers and Impola put together a large team of FBI agents/employees for

their TEI. This included FBI undercover agent Tim Bates, known as “Red,” who went

undercover, pretending to be a “bomb maker”; and undercover agent Mark Schweers,

who pretended to be “Mark Woods” and recruited Fox to join a Michigan militia group.

SA’s Chambers and Impola also assembled and supervised, as part of their

TEI, a group of several paid confidential agents/informants––not employees of the

FBI, per se, but informants who worked directly for Chambers and Impola and under

their supervision. Their job for the FBI, like that of Schweers, was to befriend these

confused and angry men and infiltrate their activities, become involved in their daily

lives, suggest crazy things for them to do and how and when to do it, encourage them

to say incriminating things about their “plans,” and all the while secretly record what

they’ve said and pass it along to Chambers and Impola who were, for most recorded

activities, also listening in “real time” to the work product of their informants.

Among the most active of the confidential agents/informants in this case were

Dan Chappel, Jennifer Plunk, and Steve Robeson. Chappel, for example, sent

hundreds of texts to Fox during the period from March 2020 until October 2020, when

4
the arrests were made, with at least 400 each in August and September 2020. During

this same period, Chappel texted with FBI’s Chambers, for instructions and to report

back, some 3,236 times, an average of 16 messages a day. Plunk, from Tennessee,

was dispatched by FBI to Croft’s Delaware home to be sure he attended one of the

“field training exercises” (“FTX”) which the FBI had helped organize and arrange,

and she thus rode with Croft and his three young daughters to the FTX in Cambria,

Wisconsin, staying with them in their hotel room. (TT2, PageID#14857-62, 15427-

28.) Robeson, already a felon, was used by the FBI to promote a “free money” scam

that was to make credit cards available, with $5,000 limits, to lure the FBI’s targets.

Robeson was eventually terminated as an agent/informant in November 2020, after

these arrests, due to his commission of still more felonies during the TEI. (TT2,

PageID#14690-92, 15537-38, 15811-20; R.396, USA Opp. at 9-10 (PageID#2728-29).)

In these and other ways, the TEI’s instigation of its kidnapping “plot” against

Governor Whitmer was audacious in its production and planning. So much of it, at

its core, was stridently, disturbingly, and imperiously un-American. That includes:

• The FBI team’s targeting and spinning up of angry citizens, during the already
traumatic Covid/Floyd time, with nearly constant surveillance and recording.

• The FBI team’s use of subterfuge by FBI agents pretending, for example, to be
“bomb makers,” and the FBI creating “bomb” videos to elicit the targeted men’s
recorded reactions to the FBI’s hoaxed-up work.

• The FBI itself organizing and orchestrating all key events, such as the FTX’s
and the two drive-by viewings of Gov. Whitmer’s Michigan cottage where the
“kidnapping” would supposedly occur, all at times/dates convenient for her and
when she would be away, because she was in on this hoax and never in danger.

• The FBI team conducting the arrests in early October 2020, just in time for a
big pre-election political splash which was the apparent motivation all along.

5
 There were two trials against Croft and co-defendants on this indictment in

the Western District of Michigan. The first was in March/April 2022, against Croft,

Fox, Daniel Harris, and Brandon Caserta, shortly after co-defendant Kaleb Franks

pleaded guilty (he later got 48 months). (Co-defendant Ty Garbin had earlier pleaded

guilty). That first trial resulted in the acquittals of Harris and Caserta; but the jury

was unable to reach verdicts as to Croft and Fox. The second trial was on August 9-

23, 2022. Croft and Fox were convicted on all counts. Croft was sentenced to 235

months; Fox got 192 months.

Croft wanted to defend principally on the basis of entrapment by the FBI and

its agents/informants. The district court’s application of the evidence rules shut much

of that down, as addressed next.

B. The district court’s adverse ruling on the evidence of the

statements by the FBI’s agents/informants.

Believing he had been unwittingly ensnared by such overwhelming

government resources directed at him, Croft (and Fox) sought to defend in part by

demonstrating the oppressive government inducement and a lack of predisposition

for the “conspiracy” scam the FBI and its agents pushed. Croft wanted to present, for

example, numerous relevant texts, recorded statements, and other communications

by and between Chambers, Impola, Schweers, Bates/“Red,” Chappel, Robeson, and/or

Plunk, and likewise between these agents/informants and the alleged “conspirators,”

all as admissions of the government and for truth under Evid.R. 801(d)(2)(D). The

trial court shut down much of that evidence.

Many of the relevant communications—texts and audio-recorded statements—

6
which were barred to the defense as substantive evidence under 801(d)(2)(D) by the

district court’s ruling were identified by the defense in a spreadsheet that was

included with pretrial motions they filed before Trial 1. That spreadsheet included

some 258 entries of relevant communications. (R. 383-1, PageID#2575-262.)

In its order before Trial 1, the district court recognized the reasons the defense

wanted to present to the jury, as party admissions, the communications in the

spreadsheet:

[In order to] advance [defendants’] case, both on the entrapment

theory and in otherwise defending against the conspiracy charged,
the defense seeks to admit approximately two hundred fifty-eight
out-of-court statements. (ECF No. 383). The statements are taken
from proposed transcriptions of recorded conversations and originate
either from the defendants themselves, federal agents, or
confidential human sources (CHSs).

(R. 439, Order, PageID#2996-97.)

The defense sought to admit most of these statements as non-hearsay

substantive evidence of admissions by a party opponent under Rule 801(d)(2)(D).

That rule provides that a statement is not hearsay where it is “offered against an

opposing party” and “was made by the party’s agent or employee on a matter within

the scope of that relationship and while it existed.” Id.

The district court denied admission of the statements as non-hearsay

substantive evidence, ruling that:

… Rule 801(d)(2)(D) covers only those situations where an

informant’s words and actions are directly and expressly authorized
by a government agent. Thus, where the informant’s statement
merely regurgitates words that were fed by a government agent, then
(provided the offering party can establish relevance) the statement
might be admissible.

7
(R. 439, Order, PageID#3013 (Appx 062).) The district court concluded its ruling by

noting that “[S]cripted words…, which are directly authorized and closely

supervised by government agents fairly fall within the party-opponent

exception.” (Id., PageID#3014 (Appx 063).) This was the court’s rubric which it

adopted by analogy from the movie “The Truman Show.” (Id.; R. 487, Trans. 1/18/22

at 54-55, PageID#3706-07.) The court sometimes referred to the rule as the “Christof

rule,” from the film’s character, “Christof” (played by Ed Harris). Christof was the

“director” of the live reality TV show in which Truman (played by Jim Carey), was—

unbeknownst to Truman as he lived what he believed was his ordinary life—the main

character for the global audience who were addicted to the show.

The issue was litigated again before Trial 2, with incorporation of many of the

same filings including the spreadsheet. Unpersuaded again, the district court made

the same ruling as in Trial 1, and it applied the ruling in Trial 2 the same way as it

had done in Trial 1. (See R. 692, Order 07/28/22 (PageID#8686-88) (Appx 072); R. 696,

FPT at 12-15 (PageID#8721-24).)

As such, the effect of the district court’s ruling and its associated “Truman

Show” rubric, was that the court eliminated 801(d)(2)(D) from the trial as an evidence

rule which could be used to benefit Croft and Fox. Instead, the court collapsed

801(d)(2)(D) into 801(d)(2)(B) and (C), such that Croft and Fox would get the benefit

of Evid.R. 801(d)(2) only for statements which they sought to present against the

government which were expressly authorized––even dictated by––the FBI agents in

charge of the investigation (Chambers and/or Impola), in a manner like Christof as

8
he fed lines to the characters in the Truman Show.

The Sixth Circuit below, after oral argument, requested supplemental briefing

from all parties on the issue of the excluded admissions and the impact on the trial.

In that brief, Croft presented the following chart to summarize some of the key topics

on which the defense wanted to develop, with these party admissions, to help

demonstrate the entrapment:

Topics which the defense wanted to develop to Item Numbers of

help demonstrate entrapment relevant evidence
• Chambers, Robeson, Chappel, et al., organized 2, 19, 41, 45, 85, 87-89,
the Cambria and Luther FTXs and promoted them 143
to the group, and they recruited attendance by
Croft
• Chambers, Robeson, Chappel and other agents 92, 93, 94, 96-100
promoted and ran the Peebles event
• Chambers, Chappel, Robeson, and other 11, 25-26, 29, 32, 34,
government agents engaged in a persistent and 36, 46, 48, 58, 73-76,
continuous push for “conspirators” to come up with 81, 83, 89, 92, 98, 99,
a “plan” or “objective,” and they pushed a plan 100, 101, 118, 122-24,
132
• Chambers, Chappel, Robeson, Plunk, and other 7, 17, 21-22, 24-28, 39-
agents engaged in continuous efforts to lead and 41, 52, 57, 73-76, 80,
guide thinking of “conspirators” about activities & 81-85, 89, 92, 96, 99-
goals, persuade them to be involved & vouching for 100, 104-14, 116-17,
Fox and/or his ideas 119-20, 129, 131, 146,
157-61
• Chambers, Robeson, Chappel, and other 20, 23, 24, 45, 55, 67,
informants promoted availability of “free” money to 90, 101, 103, 115, 118,
help “fund” the group’s goals 121
• Chambers, Chappel, Robeson, Chambers, 8, 15
Plunk knew that other “conspirators” did not
like/trust Croft and/or believed he was not
interested
• Chambers and Chappel planned, organized, 30, 31, 112-13, 115,
promoted, and conducted the 8/29/20 drive-by of the 117-18, 129-30, 133,
governor’s cottage and trip to Bull Tavern 228-33

9
 • Chambers and Chappel planned, organized, 1-5, 16, 32, 50-51, 53,
promoted, and conducted the 9/12/20 nighttime 130, 135-43, 147-54,
drive-by and the trip to the bridge 161, 234-39, 241
• Chambers, Bates/Red, Chappel etc. promoted 27, 113-14, 119, 127,
the use of explosives including the FBI’s “bomb” 128, 155-57, 158, 162-
video 67
• Chambers, Chappel pushed for action before 45, 144
“spring,” and wanted events “sooner”
• Chambers, Chappel, and Bates/Red planned, 56, 162-67
organized, promoted, and conducted the Ypsilanti
ruse trip on 10/7/20

The district court’s limitation on the use of the government’s 801(d)(2)(D)

admissions was most dramatic with Steve Robeson and Jennifer Plunk, both of whom

did not testify and, in Robeson’s case, invoked his Fifth Amendment right not to do

so. (TT2, PageID#14737, 15537-38, 15811, 15820-21.) As such, the defense was denied

the ability to use most of the party admissions of Robeson and Plunk, as made to the

alleged “conspirators” as part of Robeson and/or Plunk’s efforts on behalf of the

government to develop a “trusting relationship” with defendants. The defense was

likewise denied use of the admissions as revealed in communications between Plunk

and/or Robeson, on the one hand, and the FBI employee-agents (Chambers, Impola,

Schweers, etc.), on the other, who provided them with their directions.

The same limitation was also very significant as to many of the substantive-

evidence non-hearsay admissions by Dan Chappel even though Chappel did testify,

and especially his texts and other communications with the alleged “conspirators”

and his responsive texts and other communications with Chambers and Impola.

10
 C. The trial evidence nonetheless suggested a strong case for
Croft’s acquittal; the barred evidence would have made the
difference in his favor.

The trial evidence underscores the extent of the inducement and oppressive

involvement by the FBI and its agents/informants in all aspects of this hoax. Like a

Broadway show, government agents served as producer, director, script writer,

choreographer, photographer, principal actors, and dancers. Even the supposed

“victim” was in on the act. It is not necessary, nor is there space, to detail all the

evidence here. Nonetheless, a summary of the several key events which allegedly

reflected the “conspiracy” confirms the degree to which this was a government

operation, not an organic “conspiracy.” Of these key events, Croft only attended four:

(1) Dublin, Ohio, (2) Peebles, Ohio, (3) Cambria, Wisconsin, and (4) Luther, Michigan.

1. Dublin, Ohio

Fox and Croft might have never met in person, except for the FBI’s

orchestration of a meeting in Dublin, Ohio on June 6, 2020. Robeson had made

himself president of the “national board” for III% Patriot Militia and was promoting

Dublin as a national meeting. FBI agent Kris Long drove from Baltimore to Ohio to

instruct Robeson on how to record the meeting, which Robeson did.

Fox and Croft were among the attendees who engaged in stoned/drunken trash

talk, including about taking a governor in exchange for a capitol building. Robeson

ran the meeting and, to incite attendees, he did a lot of talking (much barred by the

court’s rulings). He told them they needed a plan. (TT2, PageID#14574-78, 14751-75,

14793, 14822-24, 14855-56, 15219-20; GX 35 (audio).) But there was only talk at

Dublin. No plans.

11
 2. Vac Shack meetings on June 20 and July 3, 2020

Fox, in his 30’s, resided in Grand Rapids in the basement of a vacuum store

(the “Vac Shack”). Shortly after Dublin, Fox asked members of the Michigan militia

group, the Wolverine Watchmen, to visit him at the Vac Shack on June 20, 2020. The

handful of attendees included Garbin and FBI informant Chappel, who had become

the Watchmen’s XO, and was ordered by FBI’s Chambers to maintain ongoing

recorded contact with Fox. Chappel drove them to the Vac Shack on the FBI’s dime;

he also wore a live wire to broadcast back to Chambers/Impola in real time.

This was the first time Chappel met Fox. (TT2, PageID#14621, 15081-85,

15402-04.) Fox discussed an idea to assault the Michigan Capitol with 200 individuals

and execute the governor. There was also talk of firebombing Michigan police cars.

Their ideas were ridiculous and were going nowhere. Nonetheless, as Robeson had

done in Dublin, Chappel pushed Fox to come up with an objective. (Id.,

PageID#15229-30.) But, still, there was only big talk at the Vac Shack. Croft wasn’t

involved; he wasn’t at the Vac Shack meeting.

Lamenting that it was only talk, Chambers, after the meeting, texted Chappel

that he had to get Fox “focused” on expressing specific plans. (Id., PageID#15230-32;

DX 1008-09.) What good is a TEI if the FBI can’t get its targets to act like the

“terrorists” the FBI is inciting?

Chappel thus began communicating incessantly with Fox at the FBI’s

direction, with dogged persistence, and at least daily. Most of Chappel’s

communications were on live wires to Chambers/Impola and secretly recorded to boot;

12
Chappel also exchanged hundreds if not thousands of text messages with Fox, which

were also real-timed back to Chambers. (TT2, PageID#15226-29.) Many of these

communications were barred at trial by the judge’s rulings.

Chappel and Chambers’ relentless snooping on Fox wasn’t enough for the FBI’s

sharks looking to create “conspiracies.” In late June, they deployed undercover agent

Mark Schweers. Pretending to be “Mark Woods,” Schweers approached Fox to be the

third member of Michigan III%. Like Chappel, Schweers made a pilgrimage to the

Vac Shack, on July 3, and secretly recorded Fox ranting about his idea to attack

Michigan’s capitol building. (TT2, PageID#14907-12, 14952-58.)

3. FTX in Cambria, WI

FTX’s are traditional events of military/militia units, from ROTC to National

Guard, and they often mix field training with weekend fun, and did here. Croft

attended the FTX in Cambria, Wisconsin during the weekend of July 10-12, 2020.

The Cambria FTX was organized by the FBI, via Robeson, who had been promoting

it since Dublin’s event. Chappel drove Watchmen members Garbin, Harris, Franks,

and Caserta to Cambria, and back, all on the FBI’s tab. (TT2, PageID#15255-57.)

This was the FTX for which the FBI deployed Plunk to Delaware to be sure

Croft showed up. When the FBI is producing and directing a scammed-up

“conspiracy,” it can’t have the targets failing to show up to be incited and entrapped.

Thus, Plunk went to Delaware as instructed and travelled with Croft to Wisconsin.

As typically, FBI’s Robeson led the FTX and addressed the group at the

beginning. Some attendees participated in military exercises which included the use

13
of a plywood-constructed “shoot house,” a routine aspect of militia training and used

in prior FTX’s run by Robeson. (TT2, PageID#14864-66.) Most of the FTX, though,

was devoted to sunshine, cookouts, and family fun. (Id., PageID#14863-65, 15088-89,

15251-59, 16020-23.) Croft took a day trip with his three young daughters.

Croft enjoys tinkering with fireworks to make small explosives. He spent one

of the afternoons with ex-Marine Harris—who was acquitted in Trial 1—trying to

make a small explosive with a firework. But it didn’t work. (GX 97.)

After a day of sunshine on Cambria’s Saturday, many attendees went to dinner

at a local restaurant. Croft is heard on one of the FBI’s hidden recorders talking about

wanting to arrest the governor and put her on trial for treason. (GX 93/106 (audio).)

He talked ridiculously about “shoot[ing] down every air ship that breaches the f***ing

airspace” and “chop[ping] trees down at every f***ing road that crosses from Ohio

and Indiana into Michigan.” (GX 106 (audio).) Nonsensical talk; stoned out of his

mind. Despite the FBI’s best efforts, there was no plan at Cambria to do anything.

4. Peebles, Ohio

The next event—also promoted by the FBI—was on July 18 in Peebles, Ohio.

It lasted a few hours. Once again, Robeson ran the meeting; its purpose was for the

FBI’s assets to try to solidify a “plan” before the election.

As ordered by Chambers, Chappel challenged the Peebles attendees that

FTX’s, while fun, are not enough: the group must get a direction! (TT2,

PageID#15260-66, 15435-36.) But, lo and behold, Chambers’ crime-instigators were

disappointed once again. Predictably, Croft raged about storming state capitols and

14
blowing up police cars, blah, blah, blah, which was a yawner to the FBI’s assets who

knew it was nonsensical talk. (TT2, PageID#15512-14, 15703-04.) The trash talking

by Croft and others went nowhere because, as Chappel admitted, the group was

aimless and had no direction by conclusion of the Peebles event. (Id., PageID#15435.)

This “TEI” was going nowhere. Chambers/Chappel and their team thus

accelerated their efforts to justify their TEI.

5. July through September 2020: chats, texts, and

other activities, but not with Croft

After Peebles on July 18, 2020, Croft had little to do with Chappel, Robeson,

Schweers, Fox, or the Watchmen for almost two months. Had the FBI not persisted

in creating “conspiracies,” the blustery relationship between Croft and Michigan’s

militia members, including Fox, would have . . . . . faded . . . . . . away . . . . . .

One of the FBI’s problems was that Fox and the Watchmen despised Croft and

were happy he remained in Delaware. For example, when the Watchmen conducted

their fun-filled FTX’s in Munith in June, Fowlerville in July, and Munith, Michigan

again in August 2020, Croft was not present at, or invited to, any of those or similar

Watchmen activities. (TT2, PageID#14703-08, 15392-421, 15590-92, 15610, 15655-

59, 15746-78.) The FBI was at them, but not Croft. Nor was Croft involved in the

incessant texting/“chatting,” including during July-September 2020, which occurred

by and between Chappel, Schweers, Robeson, Plunk, Fox, the Watchmen (e.g., Harris,

Caserta, Garbin and/or Franks), and others.

Unknown to Croft, therefore, Chambers, Schweers, and Chappel were inciting

Fox in July/August 2020 to express his wild ideas for FBI-involved chat rooms and

15
recordings. (TT2, PageID#14610, 15319-20.) In one, on August 1, Fox told Schweers

that he’d like to do a recon of Whitmer’s locations in Lansing, Traverse City, and

Mackinaw; Schweers agreed to check it out. (TT2, PageID#14925-27, 14991-97.)

6. Daytime drive-by of the Michigan cottage on

August 29, 2020

Chappel and Schweers’ idea to do a recon of the governor’s cottage was front-

and-center for Chambers’ TEI for most of August 2020. Croft had nothing to do with

that “recon” and was not even aware of it. It was an FBI operation with Fox as patsy.

Chambers ordered Chappel to start hounding people to get it lined up and he

directed Chappel whom to invite. Nearly everyone Chappel asked—e.g., Harris,

Caserta, Garbin—begged off. It wound up being only Chappel, Fox, and one other

(Eric Molitor). (TT2, PageID#15314-35; DX 1019-28 (6th Cir. Appx. 0143-0152).)

FBI’s Chambers and Chappel set the date. Chambers coordinated with the

governor and her staff so that the date and time were convenient. (TT2,

PageID#14626-27, 14642, 15116-139, 15320-30.) Thus, on Saturday afternoon,

August 29, Chappel drove Fox and Molitor, on the FBI’s dime, for a viewing that went

past the governor’s cottage in Elk Rapids. (TT2, PageID#15116-20, 15320-30, 15415-

16.) FBI surveillance teams took pictures; pole cameras were in place. Even the

pretend “victim”-governor and her “detail” were in on this “overt act,” but not Croft.

After the drive-by, Chappel bought lunch for Fox and Molitor, at the aptly

named Bull Tavern. During lunch Chappel gave Fox a pen and paper and told Fox to

draw a map of where they’d been, all while the FBI photographed Fox from another

booth so they could use it against Fox at trial. (PageID#15329-41; GX187, DX1055.)

16
 After lunch, Chappel drove Fox and Molitor to the boat launch––a small

concrete slab––across Birch Lake from the cottage. There, Fox smoked pot and

enjoyed the afternoon with a young woman he met there. Meanwhile, Chappel

connived to take photos of Fox to be used against Fox when he was prosecuted for the

FBI-orchestrated hoax. (TT2, PageID#15335-36, 15440-41; DX 1058-59.)

The very next day, Chappel texted one of the purported “conspirators” (Garbin)

to push the idea that they might want to get some explosives to “blow up” the bridge

on I-31 in Elk Rapids, not far from the cottage; this would supposedly delay police

response. (TT2, PageID#15340-43, 15594-97.) This was a genesis of the ridiculous

“weapons of mass destruction” charge manufactured against two guys––Fox and

Croft––who couldn’t “blow up” a cardboard target if their lives depended on it, much

less a concrete interstate bridge. (GX 232.)

And with eyes likely on the election calendar, Chambers in August directed

Chappel to start promoting with Fox the FBI’s planned nighttime drive-by of the

cottage. Chambers wanted this “overt act” to occur during the FBI’s long-planned

FTX in Luther, Michigan on September 11-13, 2020. (TT2, PageID#15342-46; DX

1031-32.) Chappel told Fox to invite Croft, all as part of Chambers/Chappel/Plunk’s

efforts to overcome the group’s distrust of Croft.

7. FTX in Luther, MI

The Luther FTX was on September 11-13, 2020. (TT2, PageID#15520, 15709.)

It was planned back in July by Robeson and Chappel, during Robeson’s Cambria FTX.

(Id., PageID#15443-44.) Croft drove from Delaware with his girlfriend for another

17
weekend of family fun and harmless militia training.

There were at least five of the FBI’s scammers at Luther to egg on the FBI’s

floundering kidnapping plot against its cooperating pretend “victim.” This included

Chappel, Robeson, Schweers, Plunk, and the “bomber,” Bates/“Red.” (TT2,

PageID#14928-30, 15148, 15776-77, 15829-31.)

As during Cambria weekend, Croft enjoyed making a small explosive from a

firework, adding pennies to act like shrapnel. (TT2, PageID#14745-46, 15926-29.) It

went “boom,” with green and purple, like a firework. (Id., PageID#15184, 15654-55,

15728-29.) Demonstrating Croft’s hobbyist purpose—but inept technique—the

pennies were later found, by FBI experts, to have travelled 2-3 feet from the small

boom’s center. (Id., PageID#15928.) “Weapons of mass destruction.” What a farce!

The FBI undercover agent Bates, pretending to be Chappel’s friend “Red,” let

the attendees know he could supply explosives. To lure Fox into the FBI’s “WMD”

hoax, Chambers et al. made a snazzy promo video for Bates/“Red” which showed a

small improvised explosive device (IED) blowing up a car. (TT2, PageID#15854-55,

15884-85; GX 224-25 (video).) No one had asked Bates to do so, but he insisted on

showing a group of attendees, including Croft, this FBI-made video on his cellphone.

Robeson and Plunk loudly raved about it as per their instructions to lure their targets

to talk for the secret recordings. Croft was described as “excited” to see the video.

Nonetheless, the video showed a small IED for enflaming a car. It would be

useless against the concrete I-31 bridge suggested by Chappel.

18
 8. Nighttime drive-by of the Michigan cottage on
September 12, 2020

One of Chambers’ goals for Luther weekend was to conduct the FBI’s second

preplanned drive-by of the governor’s cottage, this one at night. Chappel and

Chambers had been planning it since before the FBI’s first drive-by on August 29.

(TT2, PageID#15342-46, 15890-91.) As on August 29, Chambers would have again

coordinated with the pretend “victim” and her “detail.”

Not wanting such a sparse turnout as August 29, the FBI arranged for three

cars to participate this time, all driven by FBI assets or their associates. Chappel

lined people up to go. (TT2, PageID#15046-48, 15524-27, 15602.) It took place at 10

p.m. on 9/12/20. The FBI’s assets drove 45 minutes south from Luther to pick up Croft

at his hotel and bring him back north for the excursion to Elk Ridge. All three people

in the car which fetched Croft were FBI plotters: Chappel, Bates/“Red,” Robeson.

The three cars met up at a VFW, where each was given a task. The car driven

by Chappel was to go to the boat launch; the one driven by Brian Higgins (Robeson’s

right-hand from Wisconsin) was to drive past the governor’s cottage; the one driven

by Schweers was to drive around the area. (TT2, PageID#14931-33, 15047-49, 15148-

56, 15363-69, 15443-47.) For his part, Croft was shuffled into the back seat of

Chappel’s car with Robeson and Fox; Bates was in the front seat with driver Chappel.

As per the FBI’s plan, Chappel stopped at the I-31 bridge, where Bates led Fox down

a tourist walkway to the bridge’s underside. Bates told Fox to bring his phone so he

could take a photo, to later use against Fox at trial; they were there for a minute.

19
Croft never left the car’s backseat as Chappel circled the block to pick up Bates and

Fox. (TT2, PageID#15150-51, 15444-47.)

The car with Higgins, Garbin, and Franks tried to find the cottage, but they

had the wrong address and never did. That made the trip a “waste of time.” (TT2,

PageID#15526-31, 15719.)

The next day, back at the Luther FTX, Fox spoke with some of the group about

perhaps getting an explosive, of undetermined type, from “Red”/Bates whose cost,

“Red” promoted, might be $4,000. (TT2, PageID#14697-98, 15160-63, 15874-76.) Croft

made no commitment, suggested his eyes were “poppin” at the cost, and never

provided so much as a dime. (TT2, PageID#14710-12, 15602-05, 15899-901.)

Some of the FBI’s agents/informants, Fox, and others––but not Croft, whom

they thought was a “fed”––talked about having another FTX in November 2020. They

disagreed about whether that would be before or after the election. (TT2,

PageID#15162-64.) Later in September/October 2020, they continued those

discussions in their texts/chats. But Croft was never part of those chats.

9. The FBI’s ruse to get free gear enables the October

2020 arrests

Following the failure of the September 12th “drive by,” Chappel and Chambers

enhanced the pressure to avoid collapse of their incipient “kidnapping” scheme, as

exemplified to them by apathetic and distracted Croft. Croft was back home in

Delaware. Summer’s over, his daughters were back in school, and he was driving his

Amazon truck. He had no plans to be in Michigan again, much less to “kidnap”

anyone. (TT2, PageID#15163-71.) If there were any communications with Croft by

20
any alleged “conspirator” or FBI scammer, after Luther, they were trivial.

Thus, by the end of September 2020, with the air rushing out of the FBI’s plan,

FBI’s Chambers instructed FBI’s Chappel to have Fox meet soon with FBI’s

Bates/“Red” in Ypsilanti, Michigan, with the hope Fox would bring Bates a small

“good faith” deposit for the explosive Bates had promoted at Luther. To lure Fox to

Ypsilanti, Chappel told Fox that Bates/“Red” would provide free tactical gear for the

men and they’d get free lunch/beers at BW3. (TT2, PageID#15455-57.)

On October 7, 2020, Chappel drove Fox (and Garbin, Franks, Harris) to

Ypsilanti to collect the free gear. Instead of free gear and chicken wings, Fox, Garbin,

Franks, and Harris were all arrested. (TT2, PageID#15168-71, 15460-62, 15558-60.)

Croft was not part of this ruse Michigan trip and knew nothing about it. He

was arrested the next day in New Jersey at a Wawa gas station. (Id., PageID#14710-

12, 14746, 14893.)

The day after the arrests, the politicians bragged about the trap they’d set for

these Americans. The FBI’s purported “victim,” Whitmer, was never in danger; she

knew about the FBI’s “kidnapping” hoax and received regular updates for months.

She blamed President Trump. 1

D. The Sixth Circuit affirms.

Croft appealed to the Sixth Circuit. Among other errors, he alleged that his

constitutional right to present a defense and cross-examine witnesses against him

1 T. Barrabi, Michigan Gov. Whitmer was aware of kidnapping plot, state AG

says, FOX NEWS (Oct. 9, 2020) (at: https://www.foxnews.com/politics/michigan-gov-
whitmer-aware-kidnapping-plot-militia).

21
was denied by the district court’s rulings which barred Croft’s use as substantive

evidence the non-hearsay statements by and between Chambers, Impola, Schweers,

Long, Bates/“Red,” Chappel, Robeson, and/or Plunk, and likewise between the

agents/informants and the alleged “conspirators,” all as party admissions and for

truth under Evid.R. 801(d)(2)(D).

The Sixth Circuit agreed that the district court erred in limiting 801(d)(2)(D)

to “cover[] only those situations where an informant’s words and actions are directly

and expressly authorized by a government agent.” (Appx 036 (emphasis in original).)

However, the court rejected Croft’s contention that the error was a constitutional

error, stating that “erroneous evidentiary rulings rarely constitute a violation of a

defendant’s right to present a defense.” (Appx 037.) “We have found that the

erroneous exclusion of evidence does not ‘cause . . . constitutional injury’ when ‘[a]

variety of avenues [are] available to [the defendant] to present his defense, including

his own testimony.’” (Appx 037 (citation omitted).) Because Croft could have testified

in support of the entrapment defense but did not––and, as to any statements which

the district court’s orders would have barred him from testifying about, he could have

explored through cross-examination of the confidential informants––the appellate

court found the availability of those other avenues for presenting the evidence

defeated any claim of a constitutional injury. (Appx 038.)

With the trial error thus deemed to not be a “constitutional” one, the court

rejected Croft’s contention that, on the issue of whether the error is harmless or not,

the government had to satisfy the exacting beyond-reasonable-doubt standard of

22
Chapman v. California, 386 U.S. 18, 24 (1967). The court, instead, applied the more

lenient, government-favorable standard of Kotteakos v. United States, 328 U.S. 750

(1946), and concluded the error was harmless under that standard. (Appx 038-043.)

REASONS FOR GRANTING THE WRIT

I. The district court denied Petitioner’s constitutional right to

present a defense, and committed a trial error of constitutional
dimension, when the court applied the Federal Rules of
Evidence in such an arbitrary manner as to effectively remove
Evid. Rule 801(d)(2)(D) from the evidence rules which Petitioner
was permitted to utilize in presenting his entrapment defense to
the government’s conspiracy charges.

The Constitution guarantees the accused the right to a meaningful opportunity

to present a complete defense and to a jury’s determination of his guilt or innocence,

all as essential to due process and a fair trial. Chambers v. Mississippi, 410 U.S. 284,

294, 302 (1973); Crane v. Kentucky, 476 U.S. 683, 690 (1986); Green v. Georgia, 442

U.S. 95, 97 (1979); Holmes v. South Carolina, 547 U.S. 319, 324 (2006). It likewise

forbids trial courts from applying arbitrary rules of evidence that exclude important

defense evidence. Holmes v. South Carolina, 547 U.S. at 324; Washington v. Texas,

388 U.S. 14 (1967). These rights stem from Fifth Amendment’s guarantee of due

process and the Sixth Amendment’s confrontation and compulsory process clauses.

The Constitution, it is true, does not grant a criminal defendant an “unfettered

right to offer testimony that is incompetent, privileged, or otherwise inadmissible

under standard rules of evidence.” Taylor v. Illinois, 484 U.S. 400, 410 (1988). The

defense, no less than the government, must comply with “established rules of

procedure and evidence designed to assure both fairness and reliability in the

23
ascertainment of guilt and innocence.” Chambers, 410 U.S. at 301. And, when those

rules are applied fairly and without arbitrariness, it is generally true that an

unfavorable evidentiary ruling will rarely take on constitutional dimensions. See

Appx 037; see also United States v. Perkins, 937 F.2d 1397, 1401 (4th Cir. 1991).

Nonetheless, it is equally fundamental that the Rules of Evidence cannot be

applied to “infring[e] upon a weighty interest of the accused” or in a manner which is

“arbitrary or disproportionate to the purposes they are designed to serve.” Holmes, at

324-25. See also United States v. Scheffer, 523 U.S. 303, 308-09 (1998). What the

Constitution prohibits is the exclusion of critical, trustworthy defense evidence,

particularly where the evidence refutes the government’s allegations or directly

supports the defendant’s affirmative defense. See Holmes (rejecting as arbitrary a

state rule excluding evidence of a third party’s commission of the charged crime

where the rule made admissibility of such evidence turn on the strength of only the

prosecution’s evidence); Crane v. Kentucky (blanket exclusion of defense evidence

concerning the circumstances surrounding defendant’s confession violated right to

present a defense where his sole defense was that there was no physical evidence

otherwise linking him to crime and that his confession was unreliable); Chambers,

(arbitrary application of Mississippi’s “voucher” rule and hearsay rule, which

effectively prevented the defendant from presenting evidence of a witness’s

confessions to the murder and from impeaching the witness on the basis of his

confessions); Washington v. Texas, 388 U.S. at 23 (arbitrary application of procedural

statute preventing co-defendants or co-participants from testifying for one another

24
violated right to present a defense by excluding “a witness who was physically and

mentally capable of testifying to events that he had personally observed.”). When the

rules of evidence are applied in such an arbitrary and unfair manner, the accused’s

rights under the Fifth and Sixth Amendments are denied and the error is one of

constitutional dimension. Scheffer, 523 U.S. at 308; Rock v. Arkansas, 483 U.S. 44,

56 (1987).

The district court’s application of Evid.R. 801(d)(2), by eliminating subdivision

(D) entirely with the district court’s creation of its unfounded “Christof rule,” was

arbitrary, disproportionate, and directly contrary to Evid.R. 801(d)(2). Rule

801(d)(2)(D) itself could not be any clearer that it applies to allow admission against

the opposing party/government, as non-hearsay substantive evidence, the relevant

statements of the government’s retained agents/informants when those statements

are within the scope of the agents/informants’ assignment, and regardless of whether

the FBI employee(s) working with the agents/informants had “approved” the

statements much less “scripted them” in Christof fashion.

Rule 801(d)(2) excludes admissions of a party-opponent from the definition of

hearsay. “There is no question that . . . ‘the Federal Rules clearly contemplate

that the federal government is a party-opponent of the defendant in criminal

cases.’” United States v. Mirabal, 98 F.4th 981, 986 (9th Cir. 2024) (emphasis

supplied), citing United States v. Morgan, 581 F.2d 933, 937 n.10 (D.C. Cir. 1978).

See also United States v. Branham, 97 F.3d 835, 851 (6th Cir. 1996); United States

v. Kattar, 840 F.2d 118, 130 (1st Cir. 1988).

25
 Under 801(d)(2)(D), statements of government employees and non-employee

agents, within the scope of their work, are admissible against the government for

their truth in a criminal case. “[T]he paradigm of the non-employee agent is the

confidential informant who works with law enforcement agents in developing a case

against a target.” Anne B. Poulin, Party Admissions in Criminal Cases: Should the

Government Have to Eat Its Words?, 87 MINN. L. REV. 401, 456 (2002). That is exactly

what Chappel, Plunk, and Robeson were doing, for many months, from March 2020

until the arrests on October 7-8, 2020. The Sixth Circuit correctly applied 801(d)(2)(D)

in Branham, 97 F.3d at 851, concluding that an informant was the government’s

“agent” under 801(d)(2)(D) with respect to statements he made in order to establish

a relationship with the target/defendant. See also United States v. Reed, 167 F.3d

984, 988-89 (6th Cir. 1999); Lippay v. Christos, 996 F.2d 1490, 1499 (3rd Cir. 1993).

Rule 801(d)(2)(D), as properly applied in Branham and similar cases, allows

admission of statements by the government’s agent/informant for their truth as

admissions of the government, even though the agent/informant is not authorized to

speak, so long as the agent/informant is speaking about matters within the scope of

the project. That rule is properly “applied against the government in criminal cases.”

Poulin, 87 MINN. L. REV. at 414-15. See also Morgan, 581 F.2d at 938; Mirabal, 98

F.4th at 986. The application of the rule against the government is especially

applicable where entrapment has been alleged by the defense. Branham, indeed, was

an entrapment case. Moreover, this Court has held that, for purposes of entrapment,

a confidential informant is an agent of the government. Sherman v. United States,

26
356 U.S. 369, 373-76 (1958); United States v. Luisi, 482 F.3d 43, 53 (1st Cir. 2007);

Poulin, 87 MINN. L. REV. at 458 & n.326.

Chappel, Robeson, and Plunk were all agents of the government for any and

all purposes relevant to 801(d)(2)(D), and especially as to Croft’s entrapment defense.

They were each under the close and continuous direction and supervision of at least

two special agents of the FBI (Chambers and Impola); they were all required to abide

by FBI rules and admonishments; they needed and received FBI approval to break

the law in the course of their duties (i.e., to engage in “otherwise illegal activity”);

they were important, active, and contributing members of the FBI’s team on the

“Whitmer” case; and they were compensated, and in Chappel’s case exorbitantly. 2 As

to these three, it is not a close call that, at all relevant times, they were the FBI’s

agents/servants in the Whitmer/Watchmen/Croft/Fox investigation.

This conclusion is compelled by the plain meaning of 801(d)(2)(D), by the

purpose and intent of that rule, and by this Court’s reasoning in Sherman. The

relevant statements of Chappel, Robeson, and Plunk, just like those of Chambers et

al., were all admissible against the government under 801(d)(2)(D) because they were

all agents/servants of the government at the time the statements were made and the

statements related to matters within the scope of their duties. They were admissible

even if not “approved” by the principal, and “even though contrary to the principal’s

interest, as party admissions often are.” Poulin, 87 MINN. L. REV. at 462 & n.350.

Their admission is also compelled because, under Rule 801(d), what’s good for

2 The FBI paid Chappel some $54,000, mostly in cash, plus a $4,000 laptop.

27
the goose is good for the gander. The government freely used, against Croft,

801(d)(2)(E)’s provision, which made the statements of his alleged co-conspirators

admissible for truth against him on the theory that the declarant/co-conspirator is

supposedly his “agent.” There is no coherent application of 801(d)(2)(D) which would

then somehow shield admission against the government of statements by its own

agents/informants on the same basis, especially when those agents/informants are

the ones who were drumming up the alleged “conspiracy” under which the

801(d)(2)(E) statements were admitted against Croft.

Rather than comply with 801(d)(2)(D)’s plain meaning and this Court’s

reasoning in Sherman, the district court chose to follow poorly reasoned case law from

other circuits which have refused to give 801(d)(2)(D) the broad scope the rule

commands. 3 The reasoning of those cases is “unsound,” Poulin, 87 MINN. L. REV. at

417, especially where entrapment is the critical issue and where the law thus already

holds that informants are the government’s agents. Sherman, 356 U.S. at 376.

The district court’s adoption of its “Christof rule” did not result in merely an

occasional erroneous application of Evid.R. 801(d)(2). It was much worse than that

because its effect was to decree––for Croft’s trial and as to his efforts to defend himself

by showing the government’s entrapment via the words of the government’s own

closely supervised paid agents––that Croft would not be permitted to use Evid.R.

801(d)(2)(D) at all. It was not merely an error wherein the district court made an

3See, e.g., United States v. Yildiz, 355 F.3d 80, 82 (2nd Cir. 2004); Lippay v.
Christos, 996 F.2d 1490, 1499 (3d Cir. 1993); Christopher B. Mueller & Laird C.
Kirkpatrick, 4 FEDERAL EVIDENCE § 8:56 (4th ed. May 2021).

28
occasional trial “mistake” in its application of 801(d)(2)(D) to admit, or not admit,

particular pieces of evidence. Here, by contrast, the district court effectively removed

801(d)(2)(D) altogether from the arsenal of federal evidence rules that were available

to the defendants in their trial (by collapsing 801(d)(2)(D) into (B) and (C)), while, at

the same time, fully enforcing against the defendants, and for the government’s

benefit, the co-conspirator non-hearsay rules of 801(d)(2)(E). If that distinctly

arbitrary and legally unmoored application of the Rules of Evidence does not deny

the accused in an allegedly government-involved “conspiracy” case his constitutional

right to present his defense, then that constitutional right has been sapped of any

meaning.

The sheer volume of barred admissions was extensive, as detailed in the 258-

entry spreadsheet presented by the defense at trial and summarized above at pp. 9-

10. (R. 383-1, PageID#2575-620.) And these are only the barred admissions which

were known to the defense because they were reflected in texts/recordings. The result

was a trial about entrapment with defendants’ hands tied behind their backs and the

jury blindfolded to critical relevant facts.

The subject ruling is precisely the type of arbitrary application of the Rules of

Evidence which is prohibited under Chambers and violative of the accused’s

constitutional right to present a defense. It violated the Constitution for the district

court to apply the Rules of Evidence in such an arbitrary way. The Sixth Circuit was

thus correct to find that the district court erred in its application of 801(d)(2)(D) (Appx

038), but that court was wrong to conclude that the error was not of a constitutional

29
dimension (Appx 038), when it plainly was. The district court’s “Christof rule” denied

Croft’s right to a fair trial in accord with fundamental standards of due process,

wherein the jury, in considering Croft’s entrapment defense, would be able to

“examine the conduct of the government agent[s].” Sherman, 356 U.S. at 373. Instead,

the district court’s error facilitated the government’s tactics to “disown [its

agent/informants] and insist it is not responsible for [their] actions.” Sherman, 356

U.S. at 373. It disallowed entire categories of government admissions which would

have helped Croft demonstrate the entrapment.

II. Because the district court’s error in removing Evid. Rule

801(d)(2)(D) from the evidence rules which Petitioner was
permitted to utilize in presenting his entrapment defense is a
constitutional error, the error is subject to the Chapman
harmless error standard which requires the government to
prove that the error was harmless “beyond a reasonable doubt,”
a standard the government cannot meet in the circumstances of
this very close case.

Because the district court’s error in Croft’s trial was one of constitutional

dimension, the error is subject to Chapman’s harmless error standard under which

the government must prove the error to be harmless “beyond a reasonable doubt.”

See Chapman, 386 U.S. at 24; Neder v. United States, 527 U.S. 1, 15-16 (1999). The

government’s burden for constitutional errors is “considerably more onerous” than its

burden for non-constitutional errors. United States v. Lane, 474 U.S. 438, 446 n.9

(1986); United States v. Kettles, 970 F.3d 637, 643 (6th Cir. 2020).

For this constitutional error to be harmless, the government was required to

establish, beyond a reasonable doubt, “that a rational jury would have found the

defendant guilty absent the error.” Neder, 527 U.S. at 18. There must be proof beyond

30
a reasonable doubt “that the error complained of did not contribute to the verdict

obtained.” Chapman, 386 U.S. at 24. “Harmless beyond a reasonable doubt” is an

“exacting standard indeed.” Ellis v. United States, 941 A.2d 1042, 1048-49 (D.C. App.

2008). “The properly admitted evidence against the defendant must be

‘overwhelming.’” Id. The “inquiry [under Chapman] . . . is not whether, in a trial that

occurred without the error, a guilty verdict would surely have been rendered, but

whether the guilty verdict actually rendered in this trial was surely unattributable

to the error.” Sullivan v. Louisiana, 508 U.S. 275, 279 (1993) (emphasis in original).

Reviewing courts are particularly reluctant to find that the government has

met its harmlessness burden when the subject trial error, as here, resulted in barring

evidence which would have helped to establish the defendant’s principal defense. See,

e.g., United States v. Harris, 733 F.2d 994, 1005 (2d Cir. 1984) (“[C]ourts are

particularly reluctant to deem error harmless where. . . the error precludes or impairs

the presentation of an accused’s sole means of defense.”); United States v. Corona, 41

Fed. Appx. 33, 34 (9th Cir. 2002) (error was not harmless because informant’s

statements were probative on the issue of government inducement and the error

prevented Corona from supporting his claim of entrapment); United States v. Evans,

728 F.3d 953, 956, 967 (9th Cir. 2013) (trial court’s erroneous exclusion of the “central

piece of evidence” for Evans’ “main defense” and which went to the “very heart” of the

dispute could not be harmless); United States v. Carter, 491 F.2d 625, 630 (5th Cir.

1974).

When the defendant’s guilt was “genuinely contested,” and there is evidence

31
upon which a jury “could have reached a contrary finding, the error is not harmless.”

United States v. Rhynes, 218 F.3d 310, 323 (4th Cir. 2000) (en banc). Thus, even

though the Sixth Circuit found that the evidence at Croft’s trial satisfies the much

lower sufficiency-of-evidence standard under Jackson v. Virginia, 443 U.S. 307 (1979)

(Appx 012-026), that does not mean the evidence also satisfies the considerably more

stringent standard for determining harmless error under Chapman. Mere sufficiency

of the evidence does not dictate a finding of harmless error, particularly where the

government’s evidence was not overwhelming. In cases of “genuinely contested” guilt,

and lack of overwhelming evidence, as here, reviewing courts must be “less tolerant

of the idea that errors committed during the trial of [the] case are acceptable because

they are harmless.” United States v. Ignasiak, 667 F.3d 1217, 1236-37 (11th Cir.

2012). See also Strickland v. Washington, 466 U.S. 668, 696 (1984) (“a verdict or

conclusion only weakly supported by the record is more likely to have been affected

by errors than one with overwhelming record support”); United States v. Molt, 615

F.2d 141, 145-46 (3rd Cir. 1980) (“Of course, the closer the case, and the more

important and persuasive the evidence wrongfully admitted or excluded, the less

likely it is that a court will find the error harmless.”).

This was a very close case, one in which Croft believes the government failed

to even meet the Jackson standard as to the counts which charged the alleged

“conspiracy.” Two of Croft’s co-defendants in Trial 1 were acquitted outright, and the

jury in that trial was unable to reach verdicts as to Croft and Fox. With a proper

application of 801(d)(2)(D) in Trial 2, one which respected defendants’ rights to due

32
process and a fair trial, there is a reasonable probability the result in Trial 2 would

have likewise been acquittals because the government’s admissions at issue, had they

been admitted for the jury’s consideration, were strongly supportive of Croft’s

entrapment defense. They would have placed the case in an entirely different light,

with the many substantive-evidence and non-hearsay examples––in the written

and/or spoken words of the agents/informants’ themselves––to show the Chambers

team’s close coordination and collusion; their aggressive strategizing to exploit their

targets’ vulnerabilities and to overcome them; their incessant inducements at every

key step of the way, to and including the Ypsilanti arrests on October 7; and their

cavalier use of unethical if not illegal acts to ensnare their targets, and only taking

action against such behavior after its benefits had already been reaped and despite

the Chambers’ team’s toleration and encouragement of it while it was occurring.

The FBI team’s use of illegal activity is particularly jarring and would have

been so to the jury. The barred 801(d)(2)(D) recordings showed, for example, that

Chappel, Robeson, Plunk worked closely together and coordinated efforts against the

“targets” including by participating in recorded phone calls to which Chambers/

Impola had access and/or listened in real time. They discussed in these calls their

“inducement” of illegal activity and that doing so may be necessary. For example:

• 9/17/20, recorded call with Chappel, Robeson, Plunk: [Robeson]: “I am not

going to induce any fuc*** illegal activity that we don’t have to. Okay, I’m
not above doin anything that has to be done brother, period. 100%
till the fuc**** wheels fall off.” (Item #158, PageID#2607.) “Last thing I
want is any of us getting jammed up on just a storytelling, you know what
I mean?” (Item #159, PageID#2607.) “I’m not going to, certainly not going
to put your boy in that spot, Dan [Chappel], you know what I mean? That’s
absolutely unnecessary verbage for him to even consider it as far as I am

33
 concerned. We’re supposed to be insulating him.” (Item #160,
PageID#2607.)

Chambers applauded this sleaze-infested phone call of his chosen operatives:

• 9/17/20, Chambers to Chappel: “Good call with Steve [Robeson] and jen
[Plunk].” (Item #157, PageID#2607.)

This and other evidence demonstrates coordination and collusion and an

openly-admitted toleration of illegal or unethical activities as may be necessary––in

the judgment of the likes of Robeson, as squarely within his government-informant

duties––to induce the “targets” to fall for the scam being run against them by these

overzealous government agents. These and other party admissions only highlight

how wrong it was for the trial court to bar Croft from presenting the evidence about

Robeson’s later firing from the Chambers team and the reasons for that firing as

revealed in the exhibits that were presented to the district court, but were disallowed,

i.e., Exhibits 1041-42. (TT2, PageID#15808-17, 15904-06.)

Those documents make clear that the FBI’s discharge of Robeson, for cause, on

November 17, 2020, was in large part for conduct of which Chambers, Chappel, et al.

were fully aware, encouraged, and participated in throughout Robeson’s activities as

one of Chambers’ key operatives in this case:

[Robeson] was a noncompliant informant and an unreliable

declarant. As with all informants, before cooperating with the FBI,
he agreed to a number of rules and terms. Those included following
agent direction, not committing unsanctioned crimes, candid
disclosure to his handling agents, and others. [Robeson] violated
those rules, ending his cooperation and relationship with the FBI.
His violations included the following undisclosed and unauthorized
acts:

- offering use of 501(c) charity funds to purchase weapons for

34
 attacks;

- obtaining and possessing weapons while prohibited from

doing so because he was a felon;

- offering personal equipment, like the use of a drone, to aid in

acts of domestic terrorism.

[Robeson] also failed to record, and to disclose the presence of

existing recordings of, pertinent conversations and events.

(Proffered Defense Exh. 1042 at pp. 9-10; see also R. 396, PageID #2728-29.)

The conclusion of non-harmlessness is further compelled when the barred

801(d)(2)(D) admissions are viewed through the lens of what Croft’s jury had been

instructed about the entrapment defense and the government’s burden of proof

thereunder. The jury was instructed that the government has “the burden of proving

beyond a reasonable doubt that the Defendant was already willing to commit the

crime prior to first being approached by government agents or other persons acting

for the government,” and that the factors the jury “may consider in deciding whether

the government has proved this” include:

Ask yourself what the evidence shows about the Defendants’

character and reputation? Ask yourself if the idea of committing the
crime originated with or came from the government? Ask yourself if
the Defendant took part in the crime for profit? And ask yourself if
the Defendant took part in any similar criminal activity with anyone
else before or afterwards? Ask yourself if the Defendant showed any
reluctance to commit the crime, and if he did, whether he was
overcome by government persuasion? And ask yourself what kind of
persuasion and how much persuasion the government used?

(TT2, PageID#16173-74.) The jury was also instructed on inducement that:

“Government actions that could amount to inducement include persuasion,

fraudulent representations, threats, coercive tactics, harassment, promises of reward

35
or pleas based on need, sympathy or friendship.” (TT2, PageID#16172.)

The barred admissions, as detailed above and in the table at pp. 9-10, are in

the wheelhouse of factors the jury was required to consider, on both of entrapment’s

elements (inducement and predisposition), and the barred admissions supported

Croft’s defense. The evidence would have made it significantly more difficult for the

government to meet its beyond-a-reasonable doubt burden on inducement and

predisposition, and easier for Croft to prevail on his defense. The barred admissions

provided evidence, in their own words, of Chappel, Robeson, Plunk, et al., that:

• Ideas for committing the crime originated with them and were aggressively
pushed by them.

• They worked, as a team, to strategize about and work aggressively to overcome

Croft’s and Fox’s respective reluctance, and they pushed a fast timeline with a
purpose to overwhelm any resistance.

• Their “persuasion” was strategic, planned, and collusive, and included illegal
and unethical acts.

• Their “persuasion” was unrelenting and was applied to nearly every event and
every detail, including who would be invited to which events (alleged “overt”
acts), ensuring attendance at those events, and even such details as seating at
events so as to facilitate their audio capture of incriminating “statements”
which they aggressively sought to induce.

• Their “persuasion” included fraudulent representations, coercive tactics,

harassment, and promises of reward.

There are dozens of barred 801(d)(2)(D) admissions. There is a reasonable

probability that any one or more would have tipped the jury’s verdict, in this close

case, to acquittals (as in Trial 1), or at least another hung jury reflective of the

government’s failure to achieve the required unanimity that it met its burden. The

allowance of all the improperly barred admissions certainly would have done so.

36
 Finally, the error’s prejudicial impact on Croft’s ability to pursue his

entrapment defense infested the entire trial, further affirming that it was not

harmless under the Chapman standard. Croft should have been permitted to use all

the Rules of Evidence in pursuing his defense and to rely on the precedent of Sherman

and Branham. Instead, the district court cancelled 801(d)(2)(D) and it disregarded

Sherman and Branham, thereby both facilitating the government’s efforts to disable

any meaningful examination of the conduct of the government’s agents-informants

and furthering the government’s trial strategy to “disown [its agent/informants] and

insist it is not responsible for [their] actions.” Sherman, 356 U.S. at 373.

It is, of course, possible (although highly unlikely) that Croft may have still

been convicted even if the district court’s errors had not occurred and even if the

above-listed admissions had all been allowed as substantive evidence for the jury’s

consideration. “The existence of such a possibility, however, is not equivalent to proof

that the error was harmless beyond a reasonable doubt.” Ellis, 941 A.2d at 1051.

III. The Sixth Circuit impermissibly burdened Petitioner’s

exercise of his Fifth Amendment right not to testify at his trial,
and otherwise violated his rights, when––in determining
whether the district court’s error was harmless or not when it
barred Petitioner from presenting the 801(d)(2)(D) statements–
–the appellate court held that Petitioner’s failure to testify in his
own defense relegated the district court’s error to review for
harmlessness under the government-favorable Kotteakos
standard and not the more rigorous Chapman standard.

A criminal defendant cannot be compelled to forfeit one constitutional right in

order to assert another. Simmons v. United States, 390 U.S. 377, 393-94 (1968);

Kercheval v. United States, 274 U.S. 220, 223-24 (1927). But that is the impact of the

37
Sixth Circuit’s decision to subject the error which occurred in Croft’s trial to the

Kotteakos harmlessness standard, which is much easier for the government to meet

and thus more likely to excuse the trial error as “harmless,” merely because Croft

exercised his Fifth Amendment privilege not to testify. The Sixth Circuit’s reasoning

only amplified the constitutional error at Croft’s trial: The district court committed

an error of constitutional dimension by applying 801(d)(2) in such an arbitrary and

unfair manner (see I, II, above), yet, on appeal, the appellate court refused to review

that error as the constitutional error that it is, and refused to hold the government to

its heightened Chapman burden in reviewing that error, on the basis that the accused

could have testified to some of the barred evidence but failed to do so by standing on

his Fifth Amendment privilege. The Constitution prohibits such an intolerable choice.

The unconstitutional choice in Simmons was between a criminal defendant’s

Fourth and Fifth Amendment rights based on potentially incriminating uses of his

suppression hearing testimony at trial. Simmons, 390 U.S. at 393-94. That situation

created a Sophie’s choice: If the defendant did not want the prosecution to use his

motion hearing testimony at trial, he would have to give up his Fourth Amendment

right to challenge the search; if he wanted to establish that he had standing for

purposes of his Fourth Amendment motion, he had to give up his Fifth Amendment

right for the purposes of his trial. Forced to choose, the defendant testified at his

suppression hearing and, when the motion was denied, the prosecution used his

testimony against him to obtain a conviction at trial.

In holding that the suppression-hearing testimony was not admissible at trial

38
to establish guilt, Simmons rested first on a deterrence concern, that allowing the

suppression-hearing evidence would chill a defendant’s exercise of his Fourth

Amendment rights. Id. at 393. But the Court also recognized that allowing admission

of suppression-hearing testimony “imposes a condition of a kind to which this Court

has always been peculiarly sensitive. For a defendant who wishes to [assert his

Fourth Amendment right] must do so at the risk that the words which he utters may

later be used to incriminate him.” Id. at 393. For those reasons, the Court found it

“intolerable that one constitutional right should have to be surrendered in order to

assert another.” Id. at 394. See also Lefkowitz v. Cunningham, 431 U.S. 801 (1977).

The rule and reasoning of Simmons, Lefkowitz, and related cases are

consistent with the broader principle that the government may not “burden[] the

Constitution’s enumerated rights by coercively withholding benefits from those who

exercise them.” Koontz v. St. Johns River Water Mgmt., 570 U.S. 595, 606 (2013).

These principles were violated in Croft’s case by the Sixth Circuit’s reasoning

and its decision to treat the subject trial error as a non-constitutional error subject

only to the more lenient Kotteakos harmlessness standard. The appellate court

unconstitutionally penalized Croft for not sacrificing his Fifth Amendment privilege

so that he could thereby preserve his Sixth Amendment right to present his defense

and his associated right, if the Sixth Amendment right was denied, to have that

denial be reviewed under the Chapman standard applicable to constitutional errors.

“Whether the defendant is to testify is an important tactical decision as well

as a matter of constitutional right.” Brooks v. Tennessee, 406 U.S. 605, 612 (1972).

39
The accused’s Sixth Amendment right to present a defense is no less weighty and no

less constitutionally guaranteed when that defense does not include, for tactical or

other reasons under the Fifth Amendment, the accused’s own testimony. The Sixth

Circuit’s reasoning forces the defendant to choose between these rights, and, when he

stands on both, it penalizes him for doing so. He must give up his Fifth Amendment

right in order to preserve his Sixth Amendment right, despite the existence of an on-

point evidence rule (Evid.R. 801(d)(2)(D)) which would not require that choice if the

rule is properly applied, and, if he failed to do so, the attendant violation of his Sixth

Amendment right is subjected to a government-favorable standard on direct appeal

that is much more likely to result (and did here) in a determination of harmless error.

“The rule, in other words, ‘cuts down on the privilege [to remain silent] by

making its assertion costly.’” Brooks, 406 U.S. at 611 (quoting Griffin v. California,

380 U.S. 609, 614 (1965)).

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully Submitted,

/s/ Timothy F. Sweeney

Timothy F. Sweeney (OH 0040027)*

MEMBER OF THE BAR OF THIS COURT
LAW OFFICE OF TIMOTHY F. SWEENEY
The 820 Building, Suite 430
820 West Superior Ave.
Cleveland, Ohio 44113-1800
Phone: (216) 241-5003
Email: [email protected]
*COUNSEL OF RECORD
Counsel for Petitioner Barry G. Croft, Jr.

40