Did the district court deny Petitioner's constitutional right to present a defense by arbitrarily removing Evidence Rule 801(d)(2)(D) from the available evidence rules in an entrapment defense case?

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 a n FBIpromoted “ conspiracy ” to “kidnap” M ichigan’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 th e 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, t he 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 qualif ied under Evid. R. 801(d)(2)(B) or (C) as statements expressly authorized by the ir FBI bosses as “scripted words.” In so doing, the court f orced Petitioner to present his entrap ment defense wi thout being allowed to use the one evidence r ule most s uited 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 a n arbitrary manner as ii to effectively remove Evid. R. 801(d)(2)(D) from the evidence r ules 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 stand ard and not the more rigo rous Chap man stand ard?