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Court doc released in alleged plot to kidnap Whitmer detail defense's case for entrapment

Court documents reveal statements by the FBI and defense attorneys say they will use to make the case that the men charged with plotting kidnap and kill the governor were entrapped by the government.
Kidnap Conspiracy Web Pic
Posted at 2:08 PM, Dec 17, 2021
and last updated 2021-12-17 18:11:16-05

GRAND RAPIDS, Mich. — Newly filed court documents detail the role federal undercover agents and their FBI handlers played in the alleged plot to kidnap Governor Gretchen Whitmer.

Defense attorneys for the five men charged in the kidnapping plot are alleging that the government is guilty of entrapment.

Attorneys representing the suspects accused of plotting to kidnap the governor filed a motion in federal court Friday.

FOX 17 just received the documents and our crews are going through them now.

The documents outline the defense’s main argument: entrapment.

The motion seeks to have the court allow for the admission at trial of certain out-of-court statements, mainly audio recordings and text messages.

The defense says its discovered “a significant number of statements” that they will use to make the case that suspects were entrapped. The defense categories the statements as:

  • Statements FBI agents made to their confidential human sources (CHSs)
  • Statements the CHSs made to defendants as the CHSs pushed the FBI’s plan
  • Statements by the defendants that show the defendants did not intend to kidnap Governor Whitmer.  

The defense argues in the new documents, “The agents here drove the informants’ communications with the defendants, and the agents shaped the informants’ assertions, statements, and claims.”

In the documents, the defense argues that had the FBI not told the confidential informant what to do, there would not have been a plot to kidnap Whitmer to begin with. The defense claims the men charged didn't start it. Instead, they claim the government did.

The defense says Adam Fox, who prosecutors say was the leader of the group behind the plot, never intended to kidnap or kill Governor Whitmer.

The documents state that Fox could not have been the leader of the group because his messages indicate Fox believed the FBI’s informant was the true leader, arguing messages and recordings show Fox looked up to the informant.

The defense claims that confidential informants were working together which shows collusion.

The defense also states Fox had no intention of kidnapping the governor but instead wanted to legally pursue action against Whitmer, using the quote to argue their case: “I’ve got a guy right now drawing up the paperwork to f****** legitimatize this shit and actually charge Whitmer with her charges that she violated the Constitution. How she has violated our constitutional rights and the f****** laws that she has broken. So, I have a guy working on that right now.

The defense is filing this motion in order to go over the amount of out-of-court communication they can have per local rules. It’s an unusual thing for the defense to submit motions this early on.

* The documents below include adult language that may be offensive to some readers.

Motion Regarding Admission of Out of Court Statement 1 by WXMI on Scribd

Motion Regarding Admission of Out of Court Statement by WXMI on Scribd

Motion Regarding Admission of Out of Court Statement Attachment by WXMI on Scribd

Here’s everything we know so far about the alleged plot to kidnap the governor.

How it started

In October 2020, the FBI announced agents had foiled a stunning plot to kidnap Governor Gretchen Whitmer.

The FBI revealed details of the scheme, claiming it involved months of planning and even rehearsals to kidnap her from her vacation home in Antrim County.

Six men were charged in federal court with conspiring to kidnap the governor in reaction to what they viewed as her “uncontrolled power” after coronavirus restrictions closed down businesses and mask mandates were issued.

Adam Fox, Barry Croft, Ty Garbin, Kaleb Franks, Daniel Harris and Brandon Caserta were all named in the complaint. Croft is from Delaware; the rest are Michigan residents.

Seven others were charged in state court, accused of seeking to storm the Michigan Capitol and seek a “civil war.” Those seven were linked to a paramilitary group called the Wolverine Watchmen and were identified as Paul Bellar of Milford; Shawn Fix Belleville; Eric Molitor of Cadillac; Michael Null of Plainwell; William Null of Shelbyville; Pete Musico of Munith and Joseph Morrison of Munith.

According to court documents, the two groups trained together and planned various acts of violence.

A criminal complaint from the FBI claims the six men attempted to recruit members for the operation, which included storming the Capitol building in Lansing and take hostages, including Whitmer. The plan was reportedly supposed to be executed before the November 2020 election.

The militia group reportedly held several meetings over the summer where they participated in firearms training and combat drills; they also attempted to build IED devices, which were faulty and did not detonate as planned, according to the complaint.

The group then reportedly decided to abduct the governor at her vacation home and take her to a secure location in Wisconsin for "trial."

Below is a map showing key locations noted in the case.

What’s happened since the suspects were charged?

Details released in the year since the plot was made public have illustrated how the alleged scheme came together and the role the suspects played in the plan.

Barry Croft Jr.

Images and video released in July 2021 allegedly show one of the defendants, Barry Croft Jr., training with a semi-automatic assault rifle in Wisconsin. It's part of a handful of evidence used in Croft's detention hearing, where the judge ruled that he remain in custody without bond until his trial.

Images of Croft were also released after a coalition of media outlets – including FOX 17's parent company Scripps – petitioned the court for its release.

One image shows Croft with a "We The People" tattoo propping up a Boogaloo flag, another holding a tactical shotgun, and another of Croft's modified rifle. Prosecutors assert that Croft was one of the ringleaders in the plot against the governor.

Adam Fox

Another one of the defendants, Adam Fox, was living below a Grand Rapids area Vacuum shop.

In federal court documents obtained by FOX 17, it is alleged that Adam Fox and approximately 13 others traveled to Dublin, Ohio, to take part in firearms training and combat drills.

It is alleged that Fox and others were planning to kidnap Governor Whitmer while she was either arriving or leaving her summer home in northern Michigan. The documents claim the plan was then to transport the Governor to a secure location in Wisconsin.

Fox is alleged to have held meetings in a basement room he was staying in underneath Vac Shack on Division Avenue in Wyoming. Brian Titus, the store's owner, says he was letting Fox stay there while going through a tough time. Just before Fox was arrested, Titus had told him he needed to find a new place to stay after discovering he had been ordering AR-15 parts through the mail. He said Fox was planning to move into an apartment complex at the beginning of November.

Ty Garbin

Ty Garbin is the only defendant charged in the alleged plot federally to enter into a plea deal with prosecutors. Garbin has agreed to cooperate fully with the government and testify against his co-defendants when their cases eventually end up going to trial.

Garbin was sentenced to six years, and two months in prison in August for his role in the alleged conspiracy.

Kaleb Franks

In July, defendant Kaleb Franks filed a motion to request additional documentation from the government in regard to their use of confidential informants. Franks's defense attorneys wrote in the filing that he will present a defense alleging the government is guilty of entrapment.

“When Kaleb Franks set out to train in weaponry and tactics, enjoy time outdoors, and spend a Midwestern summer trying to find respite from the cares of professional and personal obligations and demands," reads a portion of the motion filed on July 15, 2021. "He had no thoughts of harassing the government, staging a coup, or ending up on the national stage as an alleged terrorist."

In the original criminal complaint filed against the men, the prosecution notes that on July 7, 2020, in the midst of the alleged plot, Franks said in front of a confidential informant that he was "not cool with offensive kidnapping" and that he was "just there for training."

The filing also attempts to point out potentially problematic relationships between confidential informants and their FBI handlers, saying that one has a "decades-long history of acting as a professional snitch for the government."

They note that one informant allegedly received about $54,000 for his cooperation, and a third received an envelope with $2,500 inside.

In September, the motion filed by attorneys for the suspects for more evidence was denied. The motion was seeking to obtain additional text-message correspondence between federal undercover agents who worked the case, their FBI handlers, and the men allegedly involved in the plot. Defense attorneys claim there are more texts they haven’t seen, despite having screenshots of around 300 messages, and U.S. attorneys claim they’ve turned over all their evidence already.

Attorneys for suspects Barry Croft, Kaleb Franks, Daniel Harris, Adam Fox and Brandon Caserta were included on the motion for more evidence.

At times, the argument to obtain that additional evidence was unclear; specifically the defense was trying to get their hands on the actual phone of an undercover agent referred to only as "Dan," claiming there were additional texts that proved their clients were coerced into committing criminal activity. A judge accused the defense of fishing for evidence they weren’t sure even existed. No cameras or cell phones were allowed n the courtroom Thursday.

“Things that need to be disclosed should be disclosed,” said Christopher Gibbons, attorney for defendant Adam Fox. “Whatever communication was occurring between the informants and their handlers, we want to have a full understanding of how those communications were being made and what those communications were, because we think they bear on the whole issue of entrapment.”

The U.S. attorney on the case, Nils R. Kessler, told the court that the defense already has all the correspondence that exists between agents and their FBI handlers, and between the undercover agents and the suspects in the case.

Kessler said some of the messages were sent on encrypted sites and don’t even exist anymore, but even for those instances, the defense was given the agent’s report on their contact with the suspects.

Ultimately, a judge denied the motion for more evidence, saying there appeared nothing left to be turned over and it would be inappropriate to hand over the cell phone of a protected informant.

The idea that federal agents were pulling the strings behind the scenes isn’t a new argument from some of the defendants. Defense attorneys are painting a picture of their clients as being duped into planning the making of pipe bombs and firing shots into the governor’s vacation home, among other illegal acts.

Defense attorneys also made an attempt to paint the FBI agents handling the case and the undercover informants as biased, incompetent and untrustworthy, even going so far as to suggest they hid important evidence, like text messages.

Most prominently, they argued that FBI Special Agent Jason Chambers had something to gain financially from the perpetuation of the kidnapping plot.