Accused Whitmer kidnap plotters lose bid to dismiss criminal case

Robert Snell
The Detroit News

A federal judge Tuesday refused to dismiss the indictment against five members of an alleged plot to kidnap and kill Gov. Gretchen Whitmer, calling defense claims of entrapment and government overreaching a "heavy burden to carry."

U.S. District Judge Robert Jonker filed his order less than two months before the five men are scheduled to stand trial on kidnapping conspiracy and weapons of mass destruction charges that could send them to federal prison for up to life.

Accused ringleader Adam Fox, 38, of Potterville and four others needed to show that evidence demonstrates FBI agents and informants induced them to commit crimes. The defendants also needed to show "a patently clear absence" of evidence that they were predisposed to commit the crimes, the judge wrote.

"Defendants fail to carry their burden because the evidence on both issues is decidedly disputed as it almost inevitably is at this stage of the case," Jonker wrote.

Lawyers for Fox and another accused ringleader, Delaware trucker Barry Croft, 46, could not be reached for comment immediately Tuesday.

A sixth man, Ty Garbin, 26, of Hartland Township, pleaded guilty and is serving a six-year, federal prison sentence.

The judge’s order, six weeks before trial, could prompt additional guilty plea negotiations among prosecutors and lawyers for the five defendants.

“If the defendants were looking for an off ramp, this gives them a green light,” Detroit defense lawyer Bill Swor said. “But this doesn’t mean they can’t raise the same issues in front of a jury. This well could influence the jury.”

According to defense lawyers, FBI agents and federal prosecutors capitalized on discontent with Whitmer's handling of COVID-19 pandemic restrictions, invented a conspiracy and entrapped the five charged in a case that has alleged violent extremism in Michigan.

The original 20-page defense motion, filed Christmas night by all five defense lawyers, asked Jonker to dismiss the conspiracy charge. Doing so would effectively dismantle the government's case and remaining charges, which are intertwined and based on the conspiracy charge, the lawyers wrote.

The request follows a stream of allegations and developments about the government's team involved in the case. That included the convictions of former FBI Special Agent Richard Trask, the government's public face of the investigation who was arrested on a domestic violence charge and later fired and convicted of a misdemeanor; and informant Stephen Robeson, who was dropped by the FBI after being caught illegally possessing a sniper rifle.

Jonker wrote that it is “neither ‘undisputed’ nor ‘patently clear’ that defendants were not predisposed to commit the crimes charged."

Defendants also need to illustrate government agents induced them to commit crimes in order to win an entrapment defense, the judge wrote.

“… simply setting up a ruse — even an extended one — or running a confidential source, or even proposing a criminal act is not enough,” the judge wrote.  “At this pretrial stage, the court concludes the defense has not demonstrated as a matter of law that defendants’ wills were overcome by the actions of the government.”

Defense lawyers have argued government agents initiated the case, knew there was no kidnapping conspiracy and that informants were the “driving force.”

"... informants, of course, not only contacted the defendants face to face but also coaxed, persuaded, cajoled, played on sympathies, cultivated friendships, took advantage of the defendants’ financial conditions, and suggested that the offense they proposed 'would further a greater good,'" the lawyers wrote in an earlier court filing.

"These defendants had no desire whatsoever to kidnap anyone," they added.

Twitter: @robertsnellnews