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USA Vs Fox, Et Al: Barry Croft Sentencing Memorandum
USA Vs Fox, Et Al: Barry Croft Sentencing Memorandum
____________________________________________________________________________
Barry Croft, Jr., by his counsel, Joshua Blanchard, submits this Sentencing
range. Such a sentence reflects the nature and circumstances of Mr. Croft’s offense
and his history and characteristics, and is “sufficient, but not greater than
INTRODUCTION
¶5, ECF No. 787, PageID.10405: Counsel initially raised this issue in his
objection letter and believed that the issue was withdrawn after discussion with the
probation officer, but perhaps there wasn’t clarity in communication. Mr. Croft
1
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included in ¶12.
¶10, ECF No. 787, PageID.10405: This paragraph should include a statement
regarding the final 30-month sentence imposed upon Mr. Garbin after the Rule 35.
determining the appropriate sentence.” In re Morning Song Bird Food Litig., 831
F.3d 765, 775 (6th Cir. 2016) quoting United States v. Charmer Indus., Inc., 711
F.2d 1164, 1170 (2d Cir. 1983). “[A]ccuracy of sentencing information is important
not only to the defendant but also to effective correctional treatment of a convicted
One of the factors the Court must consider in imposing a sentence for Mr.
Croft is “the need to avoid unwarranted sentence disparities among defendants with
similar records who have been found guilty of similar conduct”. 18 USC §3553(a)(6).
The ultimate sentence imposed upon Mr. Garbin is one data point in conducting the
¶14, ECF No. 787, PageID.10406: During the objection conference and
last sentence in ¶14, but the objection appears to have escaped the revision process
2
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Specifically, the PSR writer alleges that “Mr. Croft and other inmates in his
cell were found to be smoking in violation of jail policies on two occasions.” See PSR
at ¶14, ECF No. 787, PageID.10406. The incident report states that a different
inmate “is seen grabbing something from his bunk in the shape of a homemade
cigarette then go[ing] to the area below their TV, out of camera view”. The report
goes on to explain that inmates including Croft later walked into this unmonitored
to conclude Mr. Croft violated any jail rules. Counsel notes that the Newaygo
County Jail sells e-cigarettes to inmates, including Mr. Croft, through the
when they are readily available. Counsel is informed that the jail sells e-cigarettes
to inmates at the cost of $12.95 per cigarette with a limit of one e-cigarette per day.
description of the Wolverine Watchmen without including the undisputed fact that
Mr. Croft was not a member of the Wolverine Watchmen nor was he involved in
their encrypted chat communications. The manner in which four of the five
about Mr. Croft and Fox could lead a reader to believe that Mr. Croft was a member
of the Wolverine Watchmen. Such unfounded inferences may negatively impact Mr.
there is no outstanding objection to ¶23. The objection raised during the objection
3
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process was resolved by the probation officer adding clarifying language about the
¶24, ECF No. 787, PageID.10416: Counsel requested the Probation Officer
clarify that Mr. Croft did not attend the referenced periodic Wolverine Watchman
¶57, ECF No. 787, PageID.10423: Counsel objected to the first sentence as
factually inaccurate. As the Court is aware from trial testimony1, Mr. Croft’s voice
was never heard on this recording which counsel submits is because he was not
¶92 & 106, ECF No. 787, PageID.10432: Mr. Croft objects to this paragraph
does not appear that the offenses for which Mr. Croft was convicted involved five or
more participants. A total of six men were identified as participants and two were
acquitted. Undercover agents and informants are excluded from the calculation of
participants. §3B1.1 n. 1.
“Factors the court should consider include the exercise of decision making
recruitment of accomplices, the claimed right to a larger share of the fruits of the
crime, the degree of participation in planning or organizing the offense, the nature
1As in the Rule 33 motion, counsel is relying on his best recollection because the
Court has declined to authorize production of transcripts prior to a notice of appeal
being filed.
4
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and scope of the illegal activity, and the degree of control and authority exercised
Mr. Croft did not have decision-making authority. The trial testimony was
that people would become frustrated with Mr. Croft because he was unable to
articulate a plan and just kept talking. He did not recruit any of the charged
individuals. Mr. Croft was not involved in the encrypted chat communications
where details were discussed, and potential plans were floated. He did not exercise
¶104, ECF No. 787, PageID.10435: §2X1.1(b)(2) explains that the offense
completed all the acts the conspirators believed necessary on their part for the
that the conspirators were about to complete all such acts but for apprehension or
The trial testimony was unambiguous that there was no actual plan in place
to kidnap the Governor. During both trials, the Court and Government would often
note that no actual plan was even required to sustain a conviction. Neither of the
cooperating defendants could identify the who, what, when, or where of the plan.
The defendants were not in possession of the tools necessary to carry out such a
plot, including the explosives which formed the basis for count 2 or the varying
number of boats that government witnesses testified would be used to complete the
kidnapping. There was no consensus on how to fund the plan and no funding source
5
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in place. The participants believed that more training was required before any
actions could be taken. As such, Mr. Croft should receive the reduction
contemplated by §2X1.1(b)(2).
¶109, ECF No. 787, PageID.10435: The base offense level should be
that Mr. Croft agreed to use a weapon of mass destruction for the purpose of
“harming and hindering the Governor’s security detail and any responding law
enforcement officers.” While true that Mr. Fox inspected the underside of a bridge
and there may have been text message communications of which Mr. Croft was not
said that there was an attempt to destroy the bridge. No member of the conspiracy
The lack of progress toward any destruction places this case apart from cases
addressing §2K1.4 such as United States v. Gembala, 27 F. App'x 475, 477 (6th Cir.
2001) (scoring under §2K1.4(a)(2) where a defendant attempted to burn down a bar
by throwing a lit Molotov cocktail at the wall); United States v. Johnson, 116 F.3d
163 (6th Cir. 1997) (the defendants burned a cross at a church before attempting to
set it ablaze); United States v. Johnson, 152 F.3d 553 (6th Cir. 1998) (defendant
2 This objection did not benefit from the normal objection conference process as the
scoring was changed by the Probation Officer after the draft PSR was produced in
light of the Court’s observation in the order at ECF No. 783.
6
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actually set church on fire); United States v. Georgia, 279 F.3d 384 (6th Cir. 2002)
§2K1.4(a)(4), the base offense level should be calculated by adding two levels to the
adjustments.
¶111, ECF No. 787, PageID.10435: Mr. Croft objects to the enhancement
2332b(g)(5)(A).
The superseding indictment alleged that “[t]he object of the conspiracy was to
use weapons of mass destruction . . . against persons or property within the United
States. The defendants intended to use the destructive devices to facilitate their
plot to kidnap the Governor, by harming and hindering the Governor’s security
detail and any responding law enforcement officers.” Superseding Indictment, ECF
7
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The indictment does not allege that the WMD conspiracy to was for any
purpose other than to use the WMD in furtherance of the plot to kidnap the
Governor.3 Further, the government tried the case on the theory that Mr. Croft
wanted to spark a civil war or that he believed his actions in this case would touch
off a civil war. To the extent that the behavior was intended to motivate the
populace to act rather than the government, it does not fit within the terrorism
enhancement. See United States v. Parr, 545 F.3d 491, 504 (7th Cir. 2008) (noting
that a threat to commit a bombing was not calculated to influence or affect the
Mr. Croft was convicted following a second jury trial of Conspiracy to Kidnap,
Mr. Croft came to the attention of the federal government after he began
posting anti-law enforcement statements on Facebook. Mr. Croft believed that the
FBI had arranged the murder of his online friend4, Kevin Lyndel “KC” Massey and
he said mean, awful things in response. Mr. Massey was the leader of a Texas anti-
immigration militia called Rusty’s Rangers. Derek Hawkins and Marisa Iati, A
3 To the extent that the enhancement is being applied because the Governor was
targeted in her role as a Government official and her behavior was being influenced,
this would result in impermissible double-counting because her role as a
government official is already counted in §3A1.2(b).
4 While clear that Mr. Croft purported to have been in communication with Mr.
Massey, the extent of their relationship and whether they ever met in person is
unclear.
8
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Texas militia leader went into hiding. Months later, he turned up dead, WASH. POST,
Jan. 13, 2020, https://wapo.st/3YdKhQ3. Massey was eventually found dead in the
posts, agents in Delaware began monitoring Mr. Croft and eventually targeted him
The allegations in this case were that Mr. Croft and others conspired to
kidnap the Governor of Michigan. The government has variously presented motives
for members of the conspiracy such as frustration growing from COVID-19, a desire
Following his arrest in October 2020, Mr. Croft was detained at the Federal
Detention Center in Philadelphia for approximately three months before his transfer
to this District. Since his arrival in the district, Mr. Croft was detained primarily at
the Newaygo County Jail, except for his detention at the Kent County Jail while he
was on trial each time. Contrary to the PSR writer’s assertion that Mr. Croft and his
cellmates violated jail rules regarding smoking, he has not been a management
problem and has complied with jail rules. Throughout the pretrial and trial stages,
Mr. Croft’s history and characteristics suggest that a sentence below the
9
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Probation calls for a total sentence of life in prison. PSR at ¶165, ECF No. 787,
787, PageID.10460.
A considered view of Mr. Croft’s 475 years of life discloses that he has suffered
mental health issue, has engaged in poor decision making, has suffered some
serious setbacks and is someone who was without the appropriate tools to be
productive. However, Mr. Croft’s life shows that he is not a lost cause and, if
equipped with the right tools, can return to live a productive law-abiding life. Mr.
Croft’s redeeming qualities include: a genuine concern for his family, family and
Mr. Croft was born in 1975 in Wilmington, DE to Barry Croft, Sr., and
Rosmarie McGuire. PSR at ¶142, ECF No. 778, PageID.10443. Both of his parents
have struggled with mental health issues throughout their lives. While Mr. Croft
did not report mental illness on his father’s part, he described him as someone who
has “always been sort of an odd duck” and “reads books about aliens”. PSR at ¶142,
ECF No. 787, PageID.10443. However, Mr. Croft’s paternal aunt explained that her
brother (Mr. Croft’s father) was “cold and detached” noting that he “was almost
entirely uninvolved in the defendant’s life”. She further explained that Mr. Croft’s
5Mr. Croft will turn 47-years-old in between filing and sentencing. See PSR, ECF
No. 787, PageID.10403.
10
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father “puts aluminum foil on the ceiling of his bedroom so aliens cannot access his
brain waves.” Id. She went on to describe that as a child Mr. Croft “longed for his
father’s approval but never received it because his father was incapable of
Similarly, Mr. Croft’s mother has suffered from mental health issues serious
enough that she receives social security disability payments as a result. PSR at
¶143, ECF No. 787, PageID.10443. Mr. Croft’s paternal aunt reports that only
recently has his mother begun to stabilize and adhere to a medication regime. Id.
She further noted that Mr. Croft’s mother is also “prone to conspiracy theories” and
she suspects that Mr. Croft also suffers from similar mental health issues. Id.
In 1990, at age 14, Mr. Croft was admitted to the Rockford Center, an
with mixed features of emotions and conduct. Rule out bipolar disorder. Passive
concern. See Rockford Center Records, Ex. B. The justification for admitting Mr.
Croft to the hospital was that he had suffered from “[d]eteriorating psychotic
condition over the last three weeks.” Id. In the weeks leading up to his admission,
he was experiencing serious mood swings and didn’t understand the cause. Id. at p.
2. He was experiencing nightmares and night terrors. Id. The clinician noted that
Mr. Croft had been struggling in school and had been cited many times for not being
11
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The clinician noted that fourteen-year-old Croft was “preoccupied with his
feeling of not being wanted.” Id. During therapy, the clinicians noted that Mr. Croft
“remained anxious and nervous and talked about being afraid of ‘things’ at his
window and having a difficult time dealing with his mother.” Id.
depressive disorder) 50mg and later 75mg, Tegretol (an anti-convulsant used in
treating schizophrenia and bi-polar) 200mg twice daily, and Triavil 2-10 and 4-10
with a recommendation of therapy in the Newark area and a prescription for Triavil
2-10, one in the morning, two at bedtime. Id. Counsel has found no indication that
Almost three years later, Mr. Croft was back at the Rockford Center. Id. His
several aspirins, but he denied it was a suicide attempt. Id. However, Mr. Croft was
only discharged from the Rockford Center when it “was decided then that the
Other than continuing to suggest that affective disorder and bipolar be ruled
out, the second admission records make no reference to the mental health issues
which warranted the prior admission, the prior prescription for Triavil 2-10, and
12
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This appears to have been Mr. Croft’s last interaction with the mental health
system.
Mr. Croft’s parents divorced when he was four years old. PSR at ¶145, ECF
No. 787, PageID.10443. He resided with his father until around age 15 when his
father abruptly decided to move the family to Pennsylvania to live with a girlfriend.
Id. This prompted Mr. Croft to run away from home. Id.
Mr. Croft’s aunt reports that it was around this time that Mr. Croft
developed a serious heroin addiction. Id. She further opined that Mr. Croft’s
criminal history as a young man was to fund his drug habit, which seems consistent
with the description of the offenses. PSR at ¶156, ECF No. 787, PageID.10446. Ms.
Croft was proud of Mr. Croft “overcoming his [drug] addiction” but she did not
Mr. Croft reports using heroin, cocaine, and PCP in his late teens. PSR at
¶156, ECF No. 787, PageID.10446. He began using marijuana heavily by age 13. Id.
By the time of this offense, according to his fiancé, Mr. Croft was smoking
marijuana “more than twice a day” as “sort of a constant thing”. Chasity Knight Tr.
(March 30, 2022), ECF No. 663, PageID.8274. Mr. Croft reported using 2 ounces per
week, equivalent to roughly 16 one-half gram joints per day, every day. PSR at
13
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at ¶132, 133.
Trial Exhibit depicting Mr. Croft and his daughters at an "old time photo
Mr. Croft is the father to three gallery" during the weekend of the Cambria FTX.
daughters. Prior to his incarceration on this offense, Mr. Croft had primary custody
of his daughters. While the government makes much of Mr. Croft taking his
daughters to the Cambria event and telling his daughter to step away when he was
making “explosives”, he loves his children very much, worked hard to be involved in
their lives and tried to provide the love his father was incapable of providing to him.
6As noted by the PSR, these convictions were the subject of a pardon by the
Governor of Delaware.
14
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As the Court is well aware, §3553(a)(2)(A) requires the Court to consider “the
need for the sentence imposed…to reflect the seriousness of the offense, to promote
respect for the law, and provide just punishment for the offense.” These sentencing
Richard S. Frase, Excessive Prison Sentences, Punishment Goals, and the Eighth
Mr. Croft understands the seriousness of the offense for which he has been
attempting to place Mr. Croft’s actions on the continuum of behavior that can be
prosecuted under 18 USC §1201(c) or §2332a, it is worth considering that this was
an inchoate offense, while the statutes also capture completed kidnapping and
15
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It is also worth noting that Mr. Croft did not supply funding to the group, he
did not provide training to the group, he was not involved in most of the “FTX”
events, nor was he involved in the encrypted chat conversations. Simply put, to the
extent that the jury determined he was a participant, as they necessarily did, he
was a participant to a lesser degree than others. The testimony was clear that Mr.
Croft had less contact with the other defendants than anyone else and virtually no
When it came time to arrest everyone, Mr. Croft wasn’t even in the state. Not
because he was trying to evade capture, but because he was driving a semi-tractor
to support his children. When the FBI arrested Mr. Croft, he did not run, fight,
argue, or resist. In fact, he sat down for a long post-arrest interview where he ate a
cheeseburger and answered the agents’ questions. From his arrest through present,
Mr. Croft has been polite, cooperative, and respectful of the process.
Section 3553(a)(2)(B) requires the court to consider “the need for the sentence
federal sentencing is debunking the myth that lengthy sentences have a deterrent
Indeed, while many believe that the higher the sentence, the greater the
effect in deterring others, the empirical research shows no relationship
between sentence length and deterrence. The general research finding
is that “deterrence works,” in the sense that there is less crime with a
criminal justice system than there would be without one. But the
question for the judge is “marginal deterrence,” i.e., whether any
particular quantum of punishment results in increased deterrence and
thus decreased crime. Here the findings are uniformly negative: there is
16
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Amy Baron Evans, Sentencing By the Statute (April 27, 2009, revised December 21,
2010),https://www.fd.org/sites/default/files/criminal_defense_topics/essential_topics/
sentencing_resources/sentencing-by-the-statute.pdf.
sentence and general deterrence. More important is that people who commit crimes
be held accountable. Mr. Croft will be held accountable: he has been apprehended,
he has already been incarcerated for over two years, he faces a significant prison
The advisory guideline range here calls for Mr. Croft to spend the rest of his
life in prison. That is simply longer than is necessary to effect specific or general
deterrence.
Mr. Croft had a long period without significant criminality. His youthful,
while a different drug was at play here, there is a connection between his substance
The public can be sufficiently protected from potential future crimes by Mr.
Croft through ensuring that he remains 1) sober and 2) under supervision of a United
17
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Based on Mr. Croft’s true Criminal History Points, the United States
recidivate:
Based on his current age, regardless of the sentence imposed by the Court, on
release Mr. Croft would be in one of the lowest age groups to re-offend:
18
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Mr. Croft is presently 47 years old. While he holds a CDL and has a solid
employment history, he could benefit from learning a new trade, perhaps one where
Both of Mr. Croft’s biological parents appear to suffer from significant mental
illness. Mr. Croft was twice hospitalized as a child. The record is replete with
references to Mr. Croft smoking copious amount of marijuana. Counsel suspects that
minimum, Mr. Croft could benefit from comprehensive substance abuse treatment
Any sentence fashioned by the Court should consider Mr. Croft’s history of
Mr. Garbin was originally sentenced to 75 months custody. His sentence was
and his ultimate sentence accounted for a Rule 35 reduction. Mr. Franks received a
19
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Mr. Garbin and Mr. Franks testified that their roles in this conspiracy were
to be operators on a kill squad. They testified that trained and agreed to carry out a
kidnapping and to kill people in the process. Mr. Franks hoped to die in the process
of killing others. Mr. Garbin supplied the property on which to train and
differences between Mr. Croft and Mr. Garbin or Mr. Franks in not providing
disparity.
Courts are not required to impose a sentence within the range recommended
by the United States Sentencing Guidelines. United States v. Booker, 543 U.S. 220,
125 S.Ct. 738 (2005). The Guidelines, “formerly mandatory, now serve as one factor
Kimbrough v. United States, 128 S.Ct. 558, 564 (2007) (internal quotations omitted);
Gall v. United States, 128 S.Ct. 586, 602 (2007) (same). Courts “may vary [from the
When a Court disagrees with the Guidelines, the courts of appeal may not
“grant greater factfinding leeway to [the Commission] than to [the] district judge.”
Rita v. United States, 127 S.Ct. 2456, 2465, 2468 (2007). The Guidelines deserve
20
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some level of deference from the Court when they are based on (1) empirical
light of judicial decisions, sentencing data, and comments from participants and
experts in the field. Rita, 127 S.Ct. at 2464-65. However, as the Supreme Court
noted, “not all of the Guidelines are tied to this empirical evidence.” Gall, 128 S.Ct.
at 594 n.2. When a guideline is not the product of “empirical data and national
purposes of sentencing, as set forth in 18 U.S.C. § 3553(a), even in the average case.
Because the “Guidelines are not the only consideration,” the Court, “after
giving both parties an opportunity to argue for whatever sentence they deem
appropriate,” “should then consider all of the § 3553(a) factors to determine whether
they support the sentence requested by the party.” Gall at 596. The Court must
“impose a sentence sufficient, but not greater than necessary” to achieve the goals of
sentencing. Id at 597. In doing so, the Court must independently evaluate the
should not apply on general policy grounds or case specific grounds, but “may not
presume that the Guidelines range is reasonable.” Rita, 127 S.Ct. at 2463, 2465,
Guidelines are not tied to empirical evidence to support the recommended sentence
21
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and, consequently, (b) result in a sentence that is too harsh or “greater than
including the terrorism enhancement which both adds 12 offense levels and
of the guidelines.
IV. CONCLUSION
but not greater than necessary” to accomplish the goals of sentencing under 18 U.S.C.
§ 3553(a), Mr. Croft requests a downward variance to a sentence that is sufficient but
Respectfully submitted:
BLANCHARD LAW
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