Defense continues attack in Whitmer kidnap case, asks to move trial

Robert Snell
The Detroit News

A paid FBI informant entrapped a Michigan man accused of plotting to kidnap and harm Gov. Gretchen Whitmer, according to a federal court filing Monday as defense lawyers leveled a broader attack on the foundation of a high-profile case involving alleged violent extremism.

A lawyer for Canton Township resident Brandon Caserta wants access to the informant's phone to determine the informant's role in encouraging the conspiracy and persuading others to commit federal crimes.

The request came amid a flurry of motions that provided a view into defense strategy that involves suppressing evidence, attacking the work of FBI agents and claiming FBI informants entrapped men accused in the conspiracy. Five men are awaiting an October trial in federal court in Grand Rapids, though one defendant asked U.S. District Judge Robert Jonker on Monday to move the trial out of Michigan, arguing media conduct and coverage had "corrupted the potential trial atmosphere."

"Given the very personal way the media and the governor have couched the supposed 'threats' to women, individuals, and democracy here, one can easily presume prejudice," wrote Scott Graham, an attorney for Waterford Township resident Kaleb Franks, 27.

Such requests are rarely granted in Michigan.

In 1987, U.S. District Judge Anna Diggs Taylor granted what's believed to be the only venue change in the Eastern District of Michigan. That decision came in the case of Ronald Ebens, who was convicted of a civil rights violation in the death of Chinese American Vincent Chin.

The informant filing in the Whitmer case was prompted by what Caserta's lawyer, Michael Hills, said appears to be an accidental disclosure of text messages among FBI agents and the informant, known as "Dan." The informant is referred to in court filings as "CHS-2," short for confidential human source 2.

In one exchange, FBI Special Agent Henrik Impola encouraged the informant to invite Caserta to stake out Whitmer's vacation home in northern Michigan, the lawyer wrote.

"Do you think Caserta would be down for recon too?" Impola wrote in one text message in August 2020.

"I think he would be," the informant wrote.

"I default to getting as many other guys as possible, so whatever works to maximize attendance," the agent wrote.

The text messages are revelatory and the chats appear to have been accidentally provided by the government to defense lawyers as part of a broader sharing of evidence gathered in the case, Caserta's attorney wrote.

The government has refused to give defense lawyers access to the informant's and Impola's phones, Hills wrote.

"In the small window the defense has into the communications between (Special Agent) Impola and CHS-2, the F.B.I. is encouraging its paid informant, on F.B.I. phones, to actively bring Caserta into a recon to create an overt act in furtherance of a conspiracy, or create evidence of an agreement regarding a conspiracy," the lawyer wrote.

The FBI paid the informant at least $54,000, including $6,000 in expenses for a computer, phone and other electronics, according to court records.

The filing is the second time in two days Impola has come under scrutiny in the case. On Sunday, a lawyer for co-defendant Barry Croft raised questions about whether Impola was trying to sabotage defense teams.

An FBI spokeswoman declined to comment Monday.

The government has identified at least 12 informants involved in the case who worked with undercover FBI agents, Franks's lawyer wrote.

Franks' lawyer on Monday also raised the possibility he would use an entrapment defense. The attorney wrote that he wants access to the government's files on the 12 informants, including the informants' qualifications and vetting, details about their performance, communications with agents and "instructions and admonishments they received."

"Kaleb never agreed to participate in a kidnapping plan and will defend the case at trial on that basis," Graham wrote.

Caserta, meanwhile, asked the judge to prevent jurors from seeing videos sent to co-conspirators. One video cited in a court filing Monday shows Caserta expressing frustration with law enforcement and the government after being ticketed during a traffic stop in fall 2020.

In the video, Caserta tells co-conspirators “that if they encountered police during a reconnaissance, they should give the officers one opportunity to leave, and kill them if they did not comply.”

The statements are irrelevant and unfairly prejudicial, Caserta’s lawyer wrote.

Twitter: @robertsnellnews