Whitmer Kidnap ‘Plotters’ Acquitted

A Michigan jury believed the FBI created the crime.

Detroit Free Press (“2 Whitmer kidnap plot suspects found not guilty; mistrial declared for other 2“):

The historic Gretchen Whitmer kidnap plot case ended with no convictions Friday, delivering a blow to the government as it failed to convince a jury that four militia members were domestic terrorists determined to harm the governor because of her COVID-19 restrictions.

The jury declared two of those men not guilty, but deadlocked on the charges against the other two, who will be retried.

Defendant Daniel Harris — the only one who testified at the trial — was acquitted on all four counts, with the judge telling the 24-year-old Lake Orion man he would be free to go Friday afternoon.

Brandon Caserta, 33, of Canton, was acquitted on the only count he faced: kidnapping conspiracy. He, like Harris, was freed Friday — which is also his birthday — after more than 18 months in jail following his arrest in an FBI sting outside an Ypsilanti warehouse.

“What the FBI did was unconscionable,” Caserta’s lawyer, Michael Hills, said outside the courthouse. He has long argued that his client and the others were entrapped by rogue FBI informants and agents, including one who ran a cybersecurity company while investigating the case.

“To me, this was a signal,” Hills said of the verdict. “A rogue FBI agent trying to line his own pockets with his own cybersecurity company, pushing a conspiracy that just never was, never was going to be. Our governor was never in any danger. And I think the jury — they didn’t get all of it — but they smelled enough of it.”

Family members gasped and broke into tears as Chief U.S. District Judge Robert Jonker read the not guilty verdicts. Caserta’s sister declined to answer questions as she left the courthouse, but smiled and told reporters that Friday was Caserta’s 34th birthday.

Caserta and Harris thanked their lawyers after the verdict was read, then embraced one another.

The jury deadlocked on all counts against Adam Fox, 39, of Potterville, and Barry Croft, 46, of Delaware — whom the prosecution described as the ringleaders — so a mistrial was declared.

BuzzFeed News (“A Stunning Surprise In The Michigan Kidnapping Case Calls The Government’s Domestic Terror Strategy Into Question“):

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.

I have written next to nothing about the case since my initial October 2020 post “Michigan Coup Averted.” It carried the prescient subhed “A right-wing militia’s hair-brained scheme to kidnap Gretchen Whitmer has been foiled.” My analysis:

It’s never quite obvious to me with these foiled plots how close we came to fruition. That is, it’s not clear how serious these people were, much less whether they had the manpower, expertise, and capability to get past statehouse security, kidnap the governor, and seize control of the government.

Or, indeed, what that would even look like. Armed yahoos holding the governor hostage would be a big deal, of course. But who would take their orders? And, of course, one imagines that even President Trump would order the state’s National Guard federalized and have the junta dispatched.

For once, the commentariat largely agreed.

@gVOR08 observed, “As with many supposed terrorist plots, I wonder how much of this was real and how much essentially entrapment by the informer. I raise the possibility because I have trouble picturing these militia types as having either the organizational ability or the stones to actually do something like this.”

@Hal_10000 concurred, “Gonna hold off comment until I see if this was an actual plot or the Federal Playbook on Muslims: finding some idiot, creating the plot for him, giving all the materials and then arresting him.”

I haven’t followed the case particularly closely but the little I’ve caught has reinforced that initial sense that these were a bunch of yahoos who would not have committed this particular crime absent the active encouragement of the FBI.

That said, I nonetheless agree with lots of other commenters on that post that the defendants—like the overwhelming number of members of these so-called “militia” groups that first came to my awareness with Timothy McVeigh—are a net negative to society. The nature of our criminal justice system is that we can’t lock them up until they actually commit crimes and, alas, also that we do a much better job of punishing criminals after the fact than preventing them from committing crimes to begin with.

Still, it’s one thing to infiltrate these groups and catch them in the act of plotting and another, indeed, to entrap them into committing crimes they were unlikely to even think of on their own. One hopes that the FBI agents who perpetrated this scheme are stripped of their badges.

Beyond that, the BuzzFeed description of the nature of the trail is downright scary:

“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.

It’s my longstanding view that judges should bend over backwards in allowing the defense to bring in exculpatory evidence while being very suspicious of the government, which has the upper hand in both resources and control of the evidence-finding machinery. The judge apparently did the opposite here.

FILED UNDER: Crime, Law and the Courts, Terrorism, , , , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. CSK says:

    Mug shots don’t generally represent people at their best, but these guys appear to be an unusually dimwitted quartet.

    6
  2. James Joyner says:

    @CSK: With rare exceptions, the most ardent white supremacists are a direct refutation of their position.

    14
  3. CSK says:

    @James Joyner:
    Yes, I’ve noticed that. The guy in the upper left corner looks particularly cretinous.

  4. Mikey says:

    I haven’t followed the case particularly closely but the little I’ve caught has reinforced that initial sense that these were a bunch of yahoos who would not have committed this particular crime absent the active encouragement of the FBI.

    Most people wouldn’t have committed this particular crime either way. These guys didn’t need much nudging from the FBI to proceed down a path they had already chosen for themselves.

    2
  5. gVOR08 says:

    What you quote Hal_10000 saying,

    the Federal Playbook on Muslims: finding some idiot, creating the plot for him, giving all the materials and then arresting him.

    Worked well (for the FBI) on Muslims, and on Blacks. Lots of agents and prosecutors got points for indictments and convictions. Understandable they’d try the same plan with militia types. But for some reason it apparently doesn’t work as well.Maybe legal scholars should take a critical look at this and try to come up with some theory as to why race matters. And, as Amon Buddy seems to be back in the news, where does entrapment end and jury nullification begin?

    5
  6. Sleeping Dog says:

    Long before this trial started, civil liberties types were expressing the concern that the FBI drifted close to entrapment. Indeed to borrow from Hal, the Federal Playbook on Muslims didn’t work on white Christianists, thought the DoJ should have none that due to the failure to convict Bundy and friends at Malhuer.

    Good ol’ boys are always going to get special consideration from juries than the ‘other.’

    8
  7. mike says:

    Lots of jaded progressives on this site.

  8. Gustopher says:

    I’ve not followed the case enough to know the specifics, but in general I’m fine with the FBI dangling a nice, juicey criminal plot in front of people stupid and dangerous enough to go along with it.

    If the FBI doesn’t do it, some bad actor will.

    Clearly the jury felt the FBI went too far with that, but c’est la vie. Hopefully they scale it back a little next time.

    3
  9. de stijl says:

    @CSK:
    @James Joyner:

    I like upper right guy’s beard a lot. It’s pretty bad-ass.

    I can’t do a big beard, myself. Well, I physically could, but it would annoy the crap out of me. One night I would shave it off out of pique and annoyance. Same with long hair – especially on my forehead. Drives me freaking nuts.

  10. de stijl says:

    @Gustopher:

    Entrapment is bad.

    Most big talkers do nothing when push comes to shove. We all know the type. Blowhards. Idiots. Assholes. Jackasses.

    We have enough actual RW nutters out in the wild doing actual crimes. I am perfectly okay on nailing them for weapons or tax charges they are already guilty of. I got no problem monitoring them and inserting plants or turning some (within reason), but inducing new action by suggestion is off-limits. Or near enough to render the resulting charge dismissable by a jury.

    Why is Aamon Bundy not incarcerated? By any measure, he should be.

    Yes, I am an ACLU contributor. Proud of it, too. The bug / feature of the ACLU is that sometimes you have to side with people you vehemently disagree with.

    Entrapment is bad. I’ve read Philip K. Dick’s Minority Report.

    2
  11. Mister Bluster says:

    @de stijl:..Why is Aamon Bundy not incarcerated? By any measure, he should be.

    DATELINE: Thursday April 7, 2022
    Ammon Bundy sentenced to jail, fined for contempt of court
    BOISE — Idaho gubernatorial candidate and antigovernment activist Ammon Bundy on Thursday was fined $3,000 and sentenced to 10 days in jail for contempt of court.
    Bundy was immediately handcuffed in Fourth District Court in Boise and taken to the Ada County Jail.

    “Bundy argued his work for his campaign for governor counted toward the 40 hours of community service.”

    What a moron!

    3
  12. de stijl says:

    @Mister Bluster:

    For this I am grateful. I will take the administrative punishment. Gladly. But….

    Dude and his moron minions occupied a national wildlife refuge center and dared the feds to come at them.

    Imagine if a BLM group had done the same. They’d get the Nat Turner treatment.

    Both Bundy’s should be in federal prison for decades by their actions. Why they are wandering about creating new traitorous chaos I cannot fathom. Jury nullification? Prosecuturial ineptitude / bias. White guy loophole?

    Isn’t armed insurrection a pretty big-ass federal crime? Why was it not prosecuted as such?

    1
  13. Gustopher says:

    @de stijl: There’s a fine line between entrapment and giving the loons the opportunity to do what they want to. I’m ok with the latter.

    I haven’t followed this case enough to know where it falls on the spectrum. Presumably the jury did.

    I let my (cat’s) ACLU membership lapse after Citizen’s United. Also, that cat died.

    Besides, I’m more of a “let the nazis defend themselves” kind of guy these days. Too many people acting in bad faith — if the right wing enabling brigade is going to be outraged at the persecution of people for their deeply held religious beliefs about whites being the master race and Jews being lizard people or what not, let them fight for it.

    Upper right dude does have a great beard though. If he’s not the supreme white supremacist, then I don’t know what their criteria are.

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  14. Just nutha ignint cracker says:

    @de stijl:

    Entrapment is bad.

    Well, our system is bad. Congress has the power and authority to start doing things to fix our system, but seems to lack the will to address the shortcomings. With that being the case, I’d just as soon that the system be bad for everybody as for the few, the poor, and the colored. And it’s still better than extrajudicial violence against “capitol tourists” who happen to visit on the wrong day (intentionally or unintentionally)–which was my first go to solution on Jan 6.

    As bad as entrapment may be, count on somebody to come up with something even worse. (And the bad actors will approach these people if the FBI doesn’t do it first.)

  15. Just nutha ignint cracker says:

    @de stijl: “Isn’t armed insurrection a pretty big-ass federal crime? Why was it not prosecuted as such?”

    The Feds couldn’t manage to prosecute him on the charges they filed. In fwking blue as lapis lazuli Portland, no less. And the charges were so badly prosecuted that not even I would have voted to convict–and I wanted to send in people who would make sure that they all died in a shoot out (women and children, too 🙁 ), so the prosecution was REALLY sad.

    1
  16. IdaHokie says:

    @gVOR08: Ammon Bundy is never NOT in the news for those of us who live in Idaho. He’s constantly attempting to intimidate officials at their homes, offices, damaging property at the statehouse, and he’s running for governor. He’ll get arrested again after his 10-day sentence ends. Don’t worry. This judge last week sentencing him to jail time is a first though. I hope there are more like her.

    2
  17. de stijl says:

    @Gustopher:

    If loons decide to do crimes, prosecute ’em. Full stop. Prosecute away. Hard.

    Works both ways. If LW loons go criminal they should be be prosecuted.(1)

    Don’t dangle a possible crime in front of them and ask them to bite the hook. There is enough bad behavior in the world; inducing more is bad mojo and, to a weird extent, normalizes it. We have become conditioned to expect it. Making it more normal encourages it.

    We *should* expect civility and decency.

    Inducing bad people to go from blowhards to terrorists is a waste of resources. Monitor bad people. Track them. Get as close to violating their civil rights as the courts allow. Pounce when appropriate.

    Inducing them to get active is a really bad idea that will blossom in other militia groups and proto-insurrectionists. A self-fulfilling prophecy. They got off basically scot-free on this so what is the disincentive for the next?

    What message do these verdicts convey?

    A backfire. A self-goal. They made it worse by trying to make it better in a fucked up way.

    Entrapment is bad.

    (1) Jaywalking and street protests are not illegal.

  18. de stijl says:

    Upper left guy. I try pretty hard to not be negative lookist, but a chin strap beard strikes me as just so goofy. Not something I would ever do. Ymmv.

    It’s performative facial hair. “Look at me!”