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Whitmer kidnap case: Feds plan avalanche of secret recordings in trial

Gov. Gretchen Whitmer
The case against alleged plotters of an attempt to kidnap Gov. Gretchen Whitmer has been undermined by a handful of missteps and and behavior of FBI witnesses but buoyed by two plea deals. (Bridge file photo)

Federal prosecutors plan to present more than a hundred audio recordings, dozens of online chat logs, videos and witnesses at trial next month in their case against four men accused of orchestrating a plot to kidnap Michigan Gov. Gretchen Whitmer.

With jury selection set to start March 8, attorneys on Friday outlined their plans in a final pretrial conference before U.S. District Court Judge Robert Jonker in Grand Rapids.

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He told lawyers he intends to prevent the blockbuster trial from becoming a political circus, despite its connections to right-wing protest movements that arose during the COVID-19 pandemic.

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“I don’t want the trial to become a referendum on whether the trucking convoy in Ottawa is good or bad, or whether what happened on Jan. 6 was an insurrection or genuine political discourse,” said Jonker, who was appointed to the bench by Republican former President George W. Bush.

“I want the focus to be on what happened in this case.”

Experts say the closely watched case will test the government’s ability to combat growing domestic terrorism and homegrown extremism. Because of the nature of the charges, Jonker said Friday he will shield the identity of jurors from the public.

Three Michigan men — Adam Fox of Wyoming, Daniel Harris of Lake Orion and Brandon Caserta of Canton Township — along with Barry Croft of Delaware are accused of conspiring to "seize, confine, kidnap, abduct and carry away” Whitmer, a first-term Democrat, between June and October of 2020.

They maintain their innocence. The charges could imprison them for life.

Federal authorities arrested the men in October 2020, breaking up what they described as an imminent plot to kidnap the governor that had included surveillance of her vacation home. The accused conspirators discussed plans, including putting Whitmer on trial for "treason" or abandoning her on a disabled boat in Lake Michigan, according to prosecutors. 

The prosecution has been complicated by a series of missteps, including the arrest of FBI agent Richard Trask of Kalamazoo, a lead investigator in the kidnapping plot who pleaded no contest to assaulting his wife last summer. 

Trask was fired and will not testify. Nor will two other FBI agents involved in the investigation that defense attorneys have accused of unethical or questionable behavior, claims prosecutors have denied. 

Lawyers for the accused men contend their clients were entrapped by the FBI, coaxed into criminal behavior by confidential informants and undercover agents. The defendants were drawn to the Wolverine Watchmen and related militia groups because of frustration with government pandemic policies — a frustration that was entirely legal, they say.

"There was no conspiracy," defense attorneys argued in December as part of a failed attempt to dismiss the case before trial. 

"The key to the government’s plan was to turn general discontent with Governor Whitmer’s COVID-19 restrictions into a crime that could be prosecuted."

Prosecutors have buoyed their case by securing plea deals from two admitted plotters, who are expected to testify in the case. 

In pleading guilty to conspiracy kidnapping earlier this month, Kaleb Franks of Waterford Township agreed he "was not entrapped or induced to commit any crimes" by either of the main confidential informants working with the FBI, who have been identified only as “Dan” and “Steve.”

Prosecutors wrote in the plea agreement Franks also “knows” none of the other defendants were entrapped and can testify that, over their months together, he never heard any of them "say they were doing anything" because informants had advocated for it. 

Ty Garbin, a Wixom man who reached a plea deal with federal prosecutors last year, is expected to be a “star witness” at trial, his attorney said last fall. 

He received six years in prison, a reduced punishment because of his cooperation, while Franks has yet to be sentenced.

In filings ahead of Friday’s conference, prosecutors laid out plans to introduce 412 exhibits into evidence for use at trial. The evidence list includes 111 audio recordings, 58 online chat logs and 43 videos, including ones prosecutors say will show the defendants, improvised explosive devices and weapons training exercises, among other things. 

Jonker on Friday gave prosecutors permission to bring 12 firearms into the courtroom, under FBI supervision, as evidence. Prosecutors also intend to present zip ties, explosive materials, a stun gun, paramilitary gear and night-vision goggles as evidence. 

“Much of the evidence in this case consists of undercover audio recordings of the defendants discussing the plot,” Assistant U.S. Attorney Nils Kessler wrote in a Thursday filing.

Other planned exhibits include a Confederate Flag, a tri-corner hat associated with the Three Percenters militia movement and five Hawaiian shirts, the unofficial uniform of the Boogaloo movement, whose adherents generally say they are preparing for a second American civil war. 

Prosecutors say they may also call as many as 48 witnesses, including additional FBI agents involved in the investigation, two undercover agents they say infiltrated the militia group that plotted the kidnapping, one or more confidential sources and approximately a dozen civilian witnesses with knowledge of the plot. 

The kidnapping trial will be the first major militia-related case prosecution in Michigan since 2012, when a judge dismissed sedition charges against members of the Hutaree religious sect, ruling prosecutors failed to prove defendants went beyond discussing their hatred for authority.

As part of their plea deals with federal authorities, both Garbin and Franks have described Fox of Wyoming as a ringleader of the kidnapping plot. Croft, the Delaware resident, allegedly devised explosive devices. 

In a Thursday filing, Fox’s defense attorney described his client as a non-violent activist who was coaxed into the kidnapping plot by at least three government informants who were "the binding force and catalyst for every event, impassioned speech, and nearly every suggestion of criminality."

In a June 2020 phone call with one of those FBI informants, Fox discussed seeking "legal charges or a citizen's arrest of the governor, for exceeding the lawful authority of her office," his defense attorney acknowledged. But it was the informant that then steered the conversation toward Whitmer's vacation home, according to attorney Christopher Gibbons.

"Like music producers seeking out young, talented, musicians that can be combined into a money-making act, each of these defendants was selected and groomed by the government’s agents and informants for their role as (a) member of this 'conspiracy,'" Gibbons wrote.

Franks, in his recent guilty plea deal, attested that Fox proposed "assaulting the Capitol" the first time they met. And he “heard Fox and co-defendant Barry Croft initiate conversations about fighting government authority and kidnapping the governor without prompting,” according to court filings.

Daniel Harris of Lake Orion and Brandon Caserta of Canton Township were allegedly part of weapons training and planning meetings but were left behind on a group surveillance mission at Whitmer’s vacation home because "they had been drinking" that night, according to the Franks plea agreement. 

The FBI says Harris, a former Marine, used an encrypted chat with other defendants to suggest killing Whitmer, proposing one person go to the governor’s house, knock on the door “and when she answers it just cap her.”

According to his plea agreement, Franks first connected with members of the Wolverine Watchmen militia through a Facebook group in the spring of 2020. He then met Harris at a protest in Lake Orion, where Harris invited him to join the encrypted chat, pending vetting.

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The militia activists settled on the kidnapping plot in late July 2020, according to paperwork in the Franks plea deal. Fox surveilled Whitmer's vacation home alone on Aug. 29 before colleagues joined him for the second mission on Sept. 12.

At Friday’s hearing, Fox’s attorney indicated he may call a militia expert to the stand in an attempt to help jurors understand that weapons training exercises and other militia activities are not illegal nor necessarily uncommon in rural Michigan. 

The defendants “are proponents of what they call ‘the Boog,’” Gibbons told the federal judge, referring to the Boogaloo movement. 

“It is an ideology, not necessarily a group. It is not racist. It is not exclusive, though it does have some connotations that I think would be different than people might make assumptions about.”

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