Jurors acquitted two accused plotters and deadlocked on two alleged ringleaders after defense lawyers raised questions about FBI agents misconduct and informants who were credited with thwarting the plot.
The verdicts came one year after the first whiff of trouble in the high-profile case, the indictment of rogue FBI informant Stephen Robeson on a gun crime. The Wisconsin man's legal problems were followed by defense lawyers alleging FBI agents and informants orchestrated the conspiracy and entrapped a ragtag band of outcasts who harbored antigovernment views and anger over Whitmer's COVID-19 restrictions.
Prosecutors Friday vowed to retry accused ringleaders Adam Fox, 38, of Potterville and Barry Croft, 46, of Delaware, who remained in jail Friday. Their acquitted co-defendants, Lake Orion resident Daniel Harris, 24, and Brandon Caserta, 34, of Canton Township left federal court in downtown Grand Rapids free for the first time in 18 months following what Caserta's lawyer called "the conspiracy that just never was."
“Never was, never was going to be," his lawyer, Michael Hills, told reporters. "Our governor was never in any danger.
"I think the jury, even though they didn’t get all of it,” Hills added, “they smelled enough of it.”
The four men in the Whitmer kidnapping case faced kidnapping conspiracy charges, a felony punishable by up to life in prison. Three faced multiple charges, including conspiracy to use a weapon of mass destruction.
For Caserta, the acquittal came on his birthday.
"Best birthday gift ever," he told supporters as relatives yelled "Happy Birthday" inside Chief U.S. District Judge Robert Jonker's courtroom.
The west Michigan trial coincided with jurors in federal court in Washington, D.C., hearing the first cases involving people charged in the Jan. 6 riot at the U.S. Capitol. Together, the trials provided the first tests of federal laws being used to punish extremist behavior that erupted nationally in 2020 and 2021 around the presidential election and pandemic.
The trial lasted 20 days, including 13 days of testimony and approximately 38 hours of jury deliberations spanning five days. Anonymous jurors — six men, six women, all white — heard hours of closing arguments and instructions last week after testimony and a multimedia case from the government.
“We thought the jury would convict beyond reasonable doubt based on the evidence we put forward,” U.S. Attorney Andrew Birge told reporters outside the courthouse. “We believe in the jury system. We have two defendants awaiting trial.”
Defense lawyers and legal experts analyzed what went wrong for the government in what was considered a can't-miss case involving violent extremism. The defeat followed a decadelong string of successes for the Justice Department in high-profile cases in Michigan, everything from the trial of underwear bomber Umar Farouk Abdulmutallab to the corruption conviction of former Detroit Mayor Kwame Kilpatrick.
Defense lawyers insisted there was no plot, just manipulations by a team of FBI agents who were opportunistic, and troubled.
"I think the trial here has demonstrated that there’s some serious shortcomings in the case,” Fox's lawyer, Christopher Gibbons, said outside court Friday. “Obviously with acquittals occurring with Mr. Caserta and Mr. Harris, that says a lot about what is going on in the case.”
FBI Special Agent Richard Trask served as the FBI's public face in the Whitmer case, testifying in federal court about the investigation, until he was arrested in July, accused of beating his wife after a swingers party, fired and convicted of assault.
Trask was not called as a government witness during the trial. Neither were FBI Special Agent Henrik Impola, who has faced unproven perjury allegations in an unrelated case, and FBI Special Agent Jayson Chambers. He was accused by defense lawyers of trying to profit off the case by creating a cybersecurity firm while working for the FBI.
“To me, this was a signal. A rogue FBI agent trying to line his own pockets with his own cybersecurity company and then pushing the conspiracy that just never was,” Hills told reporters.
Still, prosecutors insisted as recently as Friday that the four defendants didn’t just talk about wanting to kidnap and kill Whitmer, they planned, prepared and armed themselves to spark a second civil war.
The government was armed with what legal experts considered overwhelming evidence amassed during a roughly five-month investigation that culminated in October 2020. The trial included testimony from convicted plotters Ty Garbin and Kaleb Franks, who told jurors the conspiracy originated with the plotters.
Eight others are awaiting trial on state charges.
The federal trial also featured a multimedia presentation from the government that included secret recordings of the defendants building bombs in Wisconsin, firing weapons in rural Michigan, going on a night surveillance run past the governor's cottage and griping about tyrannical government officials during a hotel meeting in Ohio.
Defense lawyers, however, pinned blame on the FBI agents and informants, including "Big" Dan Chappel. He orchestrated the conspiracy, manipulating the defendants from spring 2020 and into the fall, they argued.
“When I look at what happened in this case, I am ashamed of the behavior of the leading law enforcement agency in the United States,” Croft's lawyer, Josh Blanchard, told jurors. “The investigation was an embarrassment. There was no plan and there was no agreement.”
There was no immediate comment from an FBI spokesperson Friday.
JoAnne Huls, the governor's chief of staff, called the plot the result of violent, divisive rhetoric that is "all too common across our country."
“Today, Michiganders and Americans — especially our children — are living through the normalization of political violence," Huls said in a statement. "There must be accountability and consequences for those who commit heinous crimes. Without accountability, extremists will be emboldened."
Jurors, whose identities were shielded from the public by a judge concerned about publicity, left court Friday without explaining their verdicts.
“The ultimate question will be did the jury come to the conclusion that the mess of informants and the amount of (stuff) the defense threw up was enough to muddy the waters,” said Jon Lewis, a research fellow at the Program on Extremism at George Washington University.
Barbara McQuade, a former U.S. Attorney for the Eastern District of Michigan and now a University of Michigan law professor, expected the defendants would be found guilty, considering the preparations the defendants took to kidnap Whitmer and the guilty pleas of two codefendants.
“The evidence that we heard about conducting surveillance on her vacation home, building a shoot house with human silhouettes and practicing how to extract her from her security detail, surveilling the undergirding of a bridge,” she said. “All that, to me, seems like overwhelming evidence that this wasn’t just idle talk.”
McQuade said she would like to know how the jury split when it came to an impasse about Fox and Croft. It could have been one person who held on to a guilty or not guilty verdict, or the split could have been closer to the middle.
“I think it’s so important to hold people accountable who are threatening to kill public officials,” she said. “We’ve seen such a disturbing trend in this country with threats against public officials. It’s becoming really dangerous to hold office, and I think if we want to have a country where we respect democracy and we resolve our disputes at the ballot box and the courts, then we can’t let this go unaddressed.”
The verdicts appeared to be influenced by arguments that the government team was driving the conspiracy, said defense lawyer Keith Corbett, a former assistant U.S. Attorney who was chief of the federal Organized Crime Strike Force in Detroit.
“It’s not enough to simply say these guys went along with whatever the agents suggested,” Corbett said. “You have to show they were predisposed to engage in this conduct on their own.”
That’s a common challenge in cases against fringe groups, Corbett said. Investigators have to embed with them without seeming out of place. They have to find ways to participate without becoming the party galvanizing the crime.
Trying the case again against Fox and Croft will be more challenging for prosecutors, Corbett said. Defense attorneys know exactly what witnesses will say and jurors are likely to be aware that the first trial resulted in an impasse.
He said prosecutors should try to ask jurors why they didn’t side with the government.
“I would want to know from the juries what they found most objectionable,” Corbett said. “I’d like to ask the juries that acquitted people ‘what was it about this case that made you think these people were not guilty?’”
The verdicts came almost exactly 10 years after the acquittals of five members of the Hutaree militia following a trial in Detroit.
Hutaree members were accused of talking about killing law enforcement officers and using weapons of mass destruction to attack the funeral procession. They were acquitted of seditious conspiracy following the 2012 trial, marking one of the landmark losses for federal prosecutors in Michigan in recent history.
Defense lawyer Michael Rataj secured an acquittal in the Hutaree case. On Friday, he was not surprised by the Whitmer kidnap trial outcome.
Politics likely helped, he said, since jurors were drawn from the Republican-leaning western and northern portions of Michigan and more likely to agree with defense arguments.
“Yes, Gov. Whitmer carried Kent County, but outside of Kent County, this is the part of our state where people don’t get vaccinated, there is distrust for the government, dislike for the governor, and I think some of those elements came to play in this case,” he said.
Rataj said he did not see parallels between the kidnapping conspiracy and Hutaree cases but said people — and juries — should consider the facts of every domestic terrorism case individually.
Conspiracy charges are common, former federal prosecutor Mike Bullotta said. And while they don’t have to be paired with an actual crime, it’s much harder for prosecutors to prove someone intended to commit a crime when no crime actually occurred.
That’s what made this kidnapping case so challenging, he said. It was conceptual. Prosecutors had to convince jurors that none of the defendants would have chickened out at the last minute.
“The charge is conspiring to kidnap the governor of Michigan, and they did not kidnap the governor of Michigan,” he said. “There is no completed crime that goes to support the conspiracy charge. So really, what the jurors had to decide was whether each of those four defendants really intended to go through with kidnapping the governor.”
Some of the more outlandish details in the defendants’ plan might have made the conspiracy charges an even harder sell, Bullotta said.
“It didn’t help the government that some of these plans were sort of comical,” Bullotta said. “Like taking the governor out on a boat in the middle of the lake and leaving her there, hoping no other boat would come by and pick her up. That’s kind of like a TV Batman episode.”
Defense lawyers portrayed their clients as outcasts on the fringes of society. Fox was no ringleader, his lawyer said, noting that at least one member of the group dubbed him "Captain Autism" while Croft's lawyer called the Delaware trucker a "stoned crazy pirate."
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