Judge Tosses Whitmer Kidnapping Defendants’ Motion to Dismiss

Judge Tosses Whitmer Kidnapping Defendants’ Motion to Dismiss
Gov. Gretchen Whitmer addresses the state during a speech in Lansing, Mich., on March 2, 2021. (Michigan Office of the Governor via AP)

The men who say they were ensnared in a government entrapment scheme to kidnap Michigan’s governor will have to prove their case in trial after a federal judge denied their motion to dismiss the charges.

U.S. District Judge Robert Jonker made his ruling Jan. 25, setting the stage for defendants Adam Fox, Barry Croft, Kaleb Franks, Daniel Harris, and Brandon Caserta to stand trial on March 8 in one of the most high-profile domestic terrorism cases in decades.

In separate orders a day later, Jonker also denied defendant Franks’ motions to provide FBI agents and informants with sovereign immunity, as well as to introduce evidence related to the presence of federal informants at the Jan. 6, 2021, Capitol Hill riots.
The defendants had moved to dismiss the charges against them in a Dec. 25 motion, arguing that the FBI’s use of at least 12 informants amounted to entrapment.

The defendants’ 20-page motion offered numerous examples to support their claims that they had no intention to kidnap Michigan Gov. Gretchen Whitmer and that they were prodded on by informants.

For instance, multiple defendants and others were allegedly together on July 7, 2020, when someone suggested kidnapping Whitmer. According to the motion, someone in the group immediately said they were “not cool with offensive kidnapping”—a sentiment echoed by Franks and Harris.

Michigan Gov. Gretchen Whitmer (C) and legislative candidate Dan O'Neil (L) greet Rachel White in Traverse City, Mich., Oct. 9, 2020. Whitmer visited the area the day after police announced a foiled plot to kidnap the governor. (John Flesher/AP Photo)
Michigan Gov. Gretchen Whitmer (C) and legislative candidate Dan O'Neil (L) greet Rachel White in Traverse City, Mich., Oct. 9, 2020. Whitmer visited the area the day after police announced a foiled plot to kidnap the governor. (John Flesher/AP Photo)

The defendants’ motion also includes testimony from an FBI agent who allegedly said during discovery that defendants had a “negative reaction” to proposals from informants to kidnap Whitmer.

Additionally, the motion included examples of what defendants say was “emotional manipulation” by FBI informants to entice them into staying involved with the scheme.

One FBI informant allegedly used his untreated hernia as a device to gain sympathy with Fox and others.

“He claimed that the V.A. [Department of Veterans Affairs] would not provide him proper treatment after his years of combat service in the Army. … [The FBI informant] would tell Adam Fox that he was ‘waiting to die,’” the motion states.

“Feeling the emotional pull of such a confession, Adam Fox told Dan that Dan needed to get surgical treatment as a priority over any of the ‘mission plans’ Dan, in his [FBI informant] role, was pushing.”

Government responded to the motion to dismiss on Jan. 21, arguing that the defendants have not proven that FBI informants induced them to commit a crime.

“More importantly, the government has yet to put its ample evidence of predisposition to the finder of fact,” prosecutors said.

“At trial the government will present substantial evidence that the plot originated with Croft and Fox, that the conspirators all joined the plot voluntarily, and that they were all predisposed to commit the crimes with which they are charged.”

In his Jan. 25 ruling, Judge Jonker agreed the case should go to trial.

Jonker explained that preliminary motions are typically made to determine questions of law, not fact. The defendants’ motion to dismiss largely rests on questions of fact, he said.

“The vast majority of courts which have considered the issue have not favored the pretrial resolution of entrapment motions.

“The reasons for such a preference are grounded in the fact that the defense of entrapment is intertwined with the issue of intent and is typically based upon credibility determinations, an area traditionally reserved for jury resolution,” Jonker wrote, citing Sixth Circuit appeal court decisions.

“Applying this framework, simply setting up a ruse—even an extended one—or running a confidential source, or even proposing a criminal act is not enough. At this pretrial stage, the court concludes the defense has not demonstrated as a matter of law that defendants’ wills were overcome by the actions of the government.”

In separate orders on Jan. 26, Jonker also denied Franks’ motion to provide sovereign immunity to FBI informants and agents and to introduce evidence about undercover informants present at the Capitol Hill riots.

Franks had sought immunity for the feds so they would be able to testify freely about the alleged entrapment plot and to introduce Capitol Hill riot-related evidence as part of a larger discussion on the FBI’s use of informants.

Jonker wrote in his Jan. 26 orders that district courts don’t have the power to compel the government to grant immunity to a witness and that evidence related to Jan. 6, 2021, would be inappropriate for jurors in the Michigan kidnapping case.

Meanwhile, an entrapment hearing is set for Feb. 23 for the three men facing state charges related to the alleged Whitmer kidnapping plot.

Joseph Morrison, Pete Musico, and Paul Bellar face the state charge of providing material support to a terrorist plot, a felony punishable by up to 20 years in prison.