Despite the government’s extraordinary efforts to muzzle the defense, a jury in Grand Rapids federal court on Friday acquitted two men on charges including conspiring to kidnap Michigan Gov. Gretchen Whitmer. The jury was unable to reach a verdict on the other two who had been charged.
As a result, Daniel Harris and Brandon Caserta are now free men, while the federal judge overseeing the case called a mistrial on the counts against Adam Fox and Barry Croft. In a written statement after the verdict, Andrew Birge, the US Attorney for the Western District of Michigan, said that Fox and Croft “now await re-trial” although he did not say when that would be.
The outcome of the trial is a stunning rebuke to the prosecution, which at times appeared to view the case — one of the most prominent domestic terror investigations in a generation — as a slam dunk. The split verdict calls into question the Justice Department’s strategy, and beyond that, its entire approach to combating domestic extremism. Defense attorneys in the case, along with observers from across the political spectrum, have argued the FBI’s efforts to make the case, which involved at least a dozen confidential informants, went beyond legitimate law enforcement and into outright entrapment.
It may also leave the two defendants who chose to plead guilty and testify for the government in hopes of leniency, Ty Garbin and Kaleb Franks, wondering whether they made the right choice. Last summer, Garbin was sentenced to 75 months in prison, while Franks, who changed his plea in February, is still awaiting sentencing.
Also up in the air is the fate of eight men charged by Michigan’s Attorney General for providing material support to terrorism for their role in the alleged plot. Three of them face trial in September, but it may be challenging to convince a jury that they aided a plot the very existence of which has not been proven.
“The jury clearly saw what the FBI was doing to create this case,” said Caserta’s attorney, Mike Hills, in an interview after the verdict was announced. “They saw it, and they didn’t like it.”
To make their case, federal prosecutors presented a mountain of evidence: hundreds of audio clips, videos, and text messages, many of which show the men describing violence they would personally like to inflict on the governor, plus the testimony of a confidential informant, two undercover FBI agents, and two defendants who had pleaded guilty and agreed to cooperate with the investigation.
But the most striking thing about the closely watched 15-day trial might be what the jury never got to see.
Both before and during the trial, prosecutors went to extraordinary lengths to exclude evidence and witnesses that might undermine their arguments, while winning the right to bring in almost anything favorable to their own side. As a result, defense attorneys were largely reduced to nibbling at the edges of the government’s case in hopes of instilling doubt in the jurors’ minds, and to making claims about official misconduct with vanishingly few pieces of evidence to support them.
Over and over during the course of the trial, the prosecution objected to any attempts by defendants to provide context for the often shocking soundbites and text messages shown in court — objections sustained by a judge who agreed that such material risked confusing the jury.
The result was, at least from the defense’s point of view, a stunningly one-sided presentation that left the preponderance of evidence out of court and gave jurors precious little to balance against the Justice Department’s claims.
“The government controls the evidence,” Fox’s attorney, Chris Gibbons, said in his closing statement last Friday, “and they can play whatever they want.”
Back on Oct. 8, 2020, when the government announced that the FBI had broken up a violent plot against a sitting governor, the case seemed like a sure thing. In addition to the men accused of kidnapping conspiracy in federal court, Michigan’s attorney general had charged eight additional individuals for providing material assistance to terrorism for their role in aiding the scheme. Months later, the Justice Department tacked on weapons of mass destruction charges, elevating it to a terrorism case as well.
But over the next 17 months, a different and more nuanced version of events began to emerge.
Defense attorneys in both the state and federal cases contended, in a series of court filings and pretrial hearings, that their clients may have been loudmouths, or even anti-government cranks, but they never actually intended to hurt anyone — and couldn’t have pulled off a kidnapping to save their own lives. Fox, the lawyers noted, was so hapless he lived in the basement of a vacuum cleaner store and was forced to go to the Mexican restaurant next door when he needed to use the bathroom. Croft, for his part, ranted about shooting down airships, cutting down every tree on the border between Ohio and Michigan, and setting off electromagnetic pulse weapons that his lawyer, Joshua Blanchard, characterized at trial as “movie stuff.”
Their statements, however nasty they might sound, were just talk, the defense said, and therefore protected by the First Amendment. To the degree that there was any actual plan to kidnap Whitmer, they added, it was the FBI that had cooked it up, while the government’s minions — as many as a dozen confidential informants — lured the defendants into half-heartedly playing along.
They said it was a case of entrapment and that they had hundreds of recordings, text messages, and Facebook posts that would shine a very different light on the government’s narrative. They included exhibits showing informants smoking cannabis with the defendants, plying them with offers of cash, and working them up into a lather with anti-government talk of their own. There was evidence of informants and FBI agents discussing ways to lure more suspects into the case, and extensive audio of defendants discussing absurd schemes involving stolen Blackhawk helicopters, 300-strong armies, and newly minted silver currencies that the defense believed showed the men were simply fantasizing.
But on Feb. 2, Judge Robert J. Jonker ruled that most of the evidence the defense hoped to present could not even be mentioned in court, let alone shown to the jury. Though the exhibits were direct audio recordings or transcriptions, just like much of the prosecution’s evidence, the judge dismissed the material as irrelevant hearsay.
He also ruled that defendants could not inquire about the past conduct of several FBI agents, though the government would be allowed to question the defendants about episodes in their own past.
Five days before trial, Jonker handed the defense a rare victory by ruling that if two undercover FBI agents appeared as witnesses, they had to use their real names. After all the preceding decisions, it was hard to overlook the irony.
“It is time for all guise and pretense to end and for the prosecution to present the evidence in an open forum,” the judge wrote. “Making it crystal clear to the jury and the public that inside the Courtroom, nothing is undercover and everything is out in the open will best ensure fairness during trial and eventual acceptance and respect for whatever the jury ultimately decides.”
On the 13th day of the trial, a stream of potential witnesses arrived in the courtroom. They had all been subpoenaed by the defense. But addressing them one by one, the government warned them to think very carefully before testifying.
One of the prosecutors asked a woman named Taya Plummer pointed questions about her boyfriend, who plays no role whatsoever in the kidnapping case but is a member of an armed militant group in another state. The prosecutor, Jonathan Roth, noted that he wasn’t aware that Plummer herself was in any trouble with the law, but he left the unavoidable impression that could change if she made the wrong decision. As for how things would play out, “I’d leave that to her,” Roth added ominously.
If it was meant as a threat, it worked. Plummer said she would invoke her constitutional right against self-incrimination. Judge Jonker released her subpoena and excused her.
Under similar pressure from the government, six other potential defense witnesses — including Stephen Robeson, a controversial FBI informant at the heart of the investigation — announced that they, too, would prefer to remain silent. And defense attorneys told Judge Jonker that several additional witnesses intended to do the same, so they decided against even calling them to court. At least one of those individuals, a retiree from Virginia named Frank Butler, had been sent a letter by the Justice Department telling him he was the target of an investigation.
The prosecutors’ tactics were so heavy-handed that they could easily have backfired, causing the jury to wonder why it was so important to shut people up.
But the jury never saw any of it. They had been removed from the courtroom before these thinly veiled threats were made. All the jury saw was the result: a piteously threadbare defense.
There were only three witnesses — who collectively testified for scarcely 30 minutes — to bolster the case, compared to the relentless stream of undercover agents, cooperators, informants, experts, associates, and even Barry Croft’s weeping girlfriend that the government was allowed to parade before the jury.
It was so thin, it was almost no defense at all. The prosecution had closed off so many of the defense’s options that last Thursday, Daniel Harris, a 24-year-old ex-Marine with a boyish face and a goofy sense of humor, decided to testify in his own defense, a risky move that, surprisingly, seems to have paid off.
“Daniel told me from day one that he was innocent,” said Julia Kelly, Harris’s attorney, on Friday afternoon. “The jury believed him.”
According to Kelly, both she and Harris broke into tears as the verdict was read. Friday happened to be Caserta’s birthday, and he exclaimed that the jury’s decision was the best birthday present he’d ever gotten.
After almost a year and a half in detention, both men were immediately released and headed home. Fox and Croft, meanwhile, returned to jail pending a potential retrial. Their attorneys could not be reached for comment.
In the government’s telling, the most critical moment in the alleged plot took place late on Sept. 12, 2020, when Fox, Croft, and others piled into three trucks and headed out to conduct nighttime surveillance of Whitmer’s lakeside cottage.
It was not a great success. For one thing, their companions that night included two confidential informants and two undercover agents. Some 10 additional FBI agents followed them en route, and stationary cameras mounted at strategic spots tracked their progress. For another, despite all the careful planning, the men failed to find Whitmer’s house because they had been given the wrong address, and heavy rains made it impossible for them to spot one another from across the lake as they had hoped to do.
Nonetheless, the government seized on the narrative value of that outing, and several times throughout the trial showed the jury a pair of videos reenacting it. Except it looked a little different on the projector screen.
In one of the videos, a confidential informant and two agents sit in a truck parked in Whitmer’s driveway — which none of the defendants ever found. A second video, viewed from across the lake, shows a glowing infrared illuminator held by an FBI agent standing on Whitmer’s boat dock — a vantage point not one of the defendants ever had.
“That’s just dishonest,” Blanchard said in court on Friday. But it certainly made for good viewing.
In the end — and in ways that may be unsatisfying to many of the parties — the case that was tried in Grand Rapids will inevitably reach far beyond the evidence shown in court or even the partial verdict delivered on Friday afternoon.
In a Jan. 26 order, Judge Jonker wrote that one of the challenges of the trial would be ensuring the jurors ignore “extraneous” information about the FBI and its tactics, and focus only on the specific facts of the case. The reality, however, is that other than the prosecutions flowing out of the ongoing Capitol riot probe, the Michigan case stands as the most ambitious and closely watched investigation of domestic extremism in a generation.
Whether they crossed the sharply defined line into entrapment is a matter of legal definitions. But the tactics employed by the FBI to develop its case against the defendants — despite the Justice Department’s best efforts to keep those tactics secret — conform to a growing popular conception of government overreach.
Manipulating people into committing crimes is “unacceptable in America,” Blanchard said in closing arguments carefully calibrated to press that hot button. “That’s not how it works. We don’t make terrorists so we can arrest them.”
Blanchard was mistaken. Using swarms of informants to push suspected radicals toward violence is in fact exactly how it works: The FBI has been doing it for at least half a century, from the Black Panthers in the 1970s to Muslim groups in the wake of 9/11. But because the targets in this case were conservative white men, those tactics touched a nerve with a swath of the population that had never seriously considered the issue before.
The message that law enforcement wanted to send when it announced the sensational arrests back in October 2020 was, as the United States attorney for the Eastern District of Michigan put it in a press conference, that “our state and federal governments are working together to keep us all safe.”
Friday’s verdict, though not conclusive, suggests that the takeaway for many people has a distinctly different tone, one that could reverberate throughout federal law enforcement for years to come. As much as Fox, Croft, Harris, and Caserta were on trial, so were the FBI and the Department of Justice. On the eve of trial, even Judge Jonker conceded as much.
“This case is not about the role of government generally,” he wrote in an order on the Friday before jury selection. But, he added, it will “undoubtedly touch on how the defendants felt about the function of government and about the decisions of government actors.”