When the trial of five men accused of plotting to kidnap Michigan Gov. Gretchen Whitmer begins next month, the defendants will be barred from discussing a security firm owned by a key FBI agent in the case, as well as whether a second agent perjured himself, a federal judge has ruled.
The decision, handed down by Judge Robert J. Jonker on Wednesday, is a significant blow to the defendants’ core strategy of claiming they were entrapped by overzealous government operatives. The prosecution has said it does not intend to call those agents as witnesses, but defendants are expected to do so, and they had hoped to raise questions about their motives for opening the probe and for pushing it forward.
Last year, BuzzFeed News revealed that while working for the FBI, agent Jayson Chambers had incorporated a security company called Exeintel, and that just months before the kidnapping investigation began he had touted his government counterterrorism work while trying to land a private contract valued at as much as $6 million. Defense attorneys queried whether his work on the Michigan case was driven in part by his business interests.
His partner, agent Henrik Impola, meanwhile, was accused of perjuring himself on the stand in an unrelated case several years ago. It’s unclear if the perjury charge was fully investigated or if Impola was ever disciplined, but defendants believed it could help undermine evidence he gathered during the investigation.
In his ruling, Judge Jonker wrote that the Exeintel question was irrelevant and that there was no indication Chambers “is trying to leverage his existing role as FBI agent, or the resources of the FBI more broadly, in any way.” As for Impola, the judge ruled that there was minimal evidence supporting the perjury claim and that the opportunity to raise it in court could confuse the jury and turn the kidnapping case into a “minitrial on public perceptions of the FBI.”
Making matters more complicated for the defendants, Jonker also ruled that the defendants could not cite dozens of their own statements, which were captured in recordings or in text messages, and which they say show that they didn’t want to take part in the alleged violent plot.
Attorneys for the defendants could not immediately be reached or declined to comment.
The defendants — Barry Croft, Adam Fox, Kaleb Franks, Daniel Harris, and Brandon Caserta — were arrested in October 2020 and are accused of plotting to snatch the sitting governor from her lakeside vacation home and potentially carry her out of state for trial. A sixth defendant, Ty Garbin, pleaded guilty over a year ago and is cooperating with the prosecution. Eight other men stand accused of related crimes in state court, and three of them also are claiming entrapment.
A bid to get the entire case dismissed prior to trial failed last month. And now, with trial just weeks away, the five remaining defendants asked to use their own out-of-court statements to help bolster their entrapment claims. That strategy depends on proving the men were not only induced by the government to participate in the conspiracy but also that they were not predisposed to criminal acts.
Defense attorneys had hoped to share those statements to the jury without having to call their clients to testify, an always risky (and rarely employed) gambit given that they’d face cross-examination by the prosecution.
At the same time, Jonker said he would permit out-of-court statements by FBI agents who worked on the case.
“The statements of government agents, made within the scope of their duties as FBI agents on a matter within the scope of their official duties are admissible for the defense,” the judge wrote. He also ruled that some statements made by the confidential informants in the case, specifically those that were “directly and expressly authorized by a government agent,” can be admitted when trial begins on March 8 in federal court in Grand Rapids.
That apparent legal victory for the defense may be Pyrrhic, however. That’s because defense lawyers intend to call the FBI agents and informants to testify and to ask them directly about those statements and their conduct throughout the case.
While prosecutors said last month that both Chambers and Impola were prepared to testify if called, the status of a primary informant in the case is far less clear. Stephen Robeson, a Wisconsin asphalt contractor who worked for the FBI for a year starting in October 2019, played a pivotal role in building the case, but was twice charged with engaging in criminal acts while under FBI supervision.
In December, prosecutors in Sauk County, Wisconsin, charged him with fraud in a case that’s still pending. And in September, Robeson pleaded guilty to possessing a firearm despite having prior felony convictions. Although he struck a favorable plea agreement involving no jail time in that case, he has since been accused of violating the terms of that agreement and risks losing his deal. Last month, prosecutors in the kidnapping case moved to distance themselves from Robeson, accusing him of being a “double agent” who had secretly aided the kidnapping plot.
Robeson is due to be sentenced on the gun charge on Thursday in federal court in Wisconsin. Depending on the outcome, as well as the pending fraud charge, Robeson may attempt to invoke his Fifth Amendment right against self-incrimination at trial, making it impossible for defendants to ask him if they were entrapped.
In part due to that uncertainty, one defendant, Franks, filed a motion asking the court to order the Department of Justice to grant Robeson and other potential witnesses immunity from prosecution to allow them testify. Jonker denied that request “because a district court does not have authority to compel the government to grant use immunity to a witness.”
Prosecutors, meanwhile, were handed more potential ammunition to overcome the allegation of entrapment. In his new ruling, Jonker said that they could introduce evidence of prior offenses by three of the defendants to support their claims that the men were predisposed to criminal behavior.
Although defense attorneys note that some of the crimes took place nearly three decades ago and were later pardoned by a governor, while others were of a completely different nature than those in the alleged kidnapping plot, they are relevant to the case, Jonker ruled.
“In a charged conspiracy to kidnap Michigan’s Governor from her home, the evidence the government seeks to introduce would show the defendants were predisposed: to commit home invasion; to use violence; and to use guns in an unlawful way,” he wrote. That “evidence is permissible for the purposes in which the government seeks to use it.”