How the defense plans to clear suspects in Gov. Whitmer kidnap trial

He was referred to as "Captain Autism," the accused ringleader in the alleged plot to kidnap Gov. Gretchen Whitmer.

But with a nickname like that, the defense argues, it's clear the man's codefendants didn't take him seriously, or believe that he could commit a crime — like hatch a plan to snatch and kill the governor.

That was entirely the FBI's doing, the defense maintains, not Adam Fox's.

"No one would have conspired with Adam Fox because no one believed he had any ability to form, much less carry out, a plan," the defense argues in a new court filing that outlines how it plans to fight the government in the upcoming trial that highlights the growth of extremism in America.

With the trial three months away, the defense this week asked the court for permission to let jurors hear 258 statements that it believes will prove the FBI planted the kidnapping idea in the suspects' heads, egged them on with hateful comments about Whitmer and her COVID-19 mandates, and choreographed all the events that led to their arrests at a warehouse in October 2020.

The statements at issue involve mostly audio recordings of FBI agents, undercover informants and the defendants, and text messages. The prosecution could argue that they are hearsay, though the defense disagrees.

Fox, the alleged ringleader, and four others go to trial March 8 in federal court in Grand Rapids on kidnapping conspiracy charges that could send them to prison for life if convicted. Prosecutors say the men cased Whitmer's vacation house at night, planned to blow up a nearby bridge to slow down police, drew up a map and bought night goggles, and talked about taking her out on a boat and stranding her in Lake Michigan — and even scooping her up in a helicopter and flying her away to some unidentified location.

None of that is believable, the defense has argued, maintaining that the defendants were merely engaged in tough talk and fantasy play, and had no real plan to harm the governor. The FBI hatched the kidnapping idea, and used paid informants to manipulate the defendants into carrying out a scheme that they never came up with or agreed to be a part of, the defense maintains.

Among the statements the defense wants the jury to hear is a comment that an FBI agent made while interrogating an undercover informant from Wisconsin who had embedded himself in the group.

“We have a saying in my office. Don’t let the facts get in the way of a good story,” the agent allegedly said in the Dec. 10, 2020 conversation. The defense said this comment shows the FBI disregarded the defendants' "unequivocal objections" to a kidnap plan.

The defense also wants jurors to see this text message that an FBI agent sent to an undercover informant named Dan: “Mission is to kill the governor specifically.”

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That text was sent on Sept. 5, 2020 — nearly two months before five suspects were arrested in a sting at an Ypsilanti warehouse.

The defense alleges that the FBI agent who sent the text was "manufacturing a mission" by the government and "calling the shots."

This, the defense argues, amounts to entrapment. But the government says the agent's text was a question, not a statement, and that the defense took it out of context.

The defense also wants jurors to hear a comment from one of Fox's codefendants, Ty Garbin, who in July 2020 allegedly said, “Captain Autism can't make up his mind.”

Garbin, who previously pleaded guilty to his role in the scheme and is serving a six-year prison sentence, was referring to Fox.

"(W)ith the “Captain Autism” remark ... The meaning of it lies in the defendants’ recognition that Adam Fox had no actual disposition toward truly committing wrongdoing . . . with a true plan and viability," the defense states.

The defense also wants jurors to hear statements that it says show the suspects were opposed to the kidnapping scheme.

"Perhaps none is more direct than a statement by (defendant) Daniel Harris, who told the lead informant and others: 'No snatch and grab. I swear to ...God.'"

The defense also wants jurors to hear a July 7, 2020, conversation, when someone in the group of defendants said they were “not cool with offensive kidnapping” and others agreed.

The defendants are: Fox, 38, of Potterville; Barry Croft, 46, of Bear, Delaware; Kaleb Franks, 27, of Waterford; Daniel Harris, 24, of Lake Orion; and Brandon Caserta, 33, of Canton. A sixth man, Ty Garbin, 26, of Hartland Township, pleaded guilty to his role and is serving a six-year prison sentence.

In court documents, federal prosecutors have argued that the defendants were not entrapped, but rather met for months in secret, held training exercises at various locations across the country, and plotted an attack on Whitmer out of anger over COVID-19 restrictions.

“Months before any of them began suggesting (entrapment) ... Garbin testified that (Barry) Croft and (Adam) Fox were the ringleaders of the plot, and that he and the other conspirators joined it willfully," Assistant U.S. Attorney Nils Kessler has previously argued in court documents.

The government has scoffed at the entrapment claims, stating in court documents:

"It is helpful to understand, at the outset, that the defendants were predisposed to join the kidnapping and explosives conspiracies, and therefore will not be able to prove entrapment."

For example, the government alleges that on June 6, 2020, Fox and Croft attended a meeting with “militia” activists from multiple states, where they proposed attacking the governors of Michigan, Ohio and Virginia.

Croft came prepared to the meeting, prosecutors said, alleging he had brought an improvised explosive device he had built for the purpose, and "referred to himself as a 'terrorist' who was going to 'burn mother f------ houses down, blow shit up.' "

At that meeting, prosecutors maintain, Fox had not yet met with the undercover agent who joined the group. That didn't happen until almost a month later, when Fox met for the first time with the undercover agent,allegedly telling him at a July 3, 2020 meeting about the group's plans.

FOX: "we’re movin’ forward man, we’re actively planning some missions right now."

Undercover agent: "Okay"

FOX: "Um. The consensus is as of right now is takin’ the f----- capitol. By force. Like, with extreme heavy fuckin’ prejudice toward our f----- governing officials. I mean obviously we’re not just talkin’ about goin’ to murder a bunch of cops and shit, but they got a choice to make."

Meanwhile, the defense has asked the court to dismiss the indictment altogether, alleging in a Christmas Day filing that the FBI used multiple confidential informants "to manipulate" people across the U.S., including the defendants, and in the end entrapped them all.

For example, the defense plans to argue to the jury that when the five defendants were arrested in a sting by the FBI at an Ypsilanti warehouse, they had only gone there thinking they were buying equipment. The government claimed the purpose of the meeting was to make a down payment on a bomb, the defense says, but what really happened is that the FBI's lead informant tricked the defendants into thinking they were going to buy training equipment from someone named "Red."

"Always hungry to get new 'gear' and often unable to afford it, some of the

defendants went with this informant in order to meet 'Red,'" defense lawyers state in Wednesday's filing.

"As this case has progressed toward trial ... the defendants have discovered a significant number of statements they will seek to present at trial to establish that they never conspired to kidnap Governor Whitmer and, in the alternative, that they were entrapped," the defense filing states.

The defense also wants to use statements by a paid informant who allegedly reported to the FBI that he was making no progress, stating: " 'Right, but yea, and I keep trying to push, press on them where are you guys wanting to go with this? Because I’m wanting (to) know are you wasting my time in a sense?' "

Still, the defense maintains, "the FBI continued to push its plan" in telling its informants to prod the defendants into carrying out a plan that involved a "human target" — not just attacking a brick-and-mortar structure.

For example, on June 6, 2020, an informant embedded in the group told others: “You can’t just grab brick and mortar. Without a ... human to go

with it, you’ve done nothing but grab brick and mortar.”

What's important about this statement, the defense argues, is it shows the informant directing others to go beyond "grabbing brick and mortar.”

The defense also wants jurors to hear fantasy talk, including this comment allegedly made by Fox as he discusses what they say is an imaginary plan to get the governor:

"Because if we do this, it’s going to have to go down like, it’s going to have to be like movie-type shit man. And we come in on motherf------ boats and get the bitch, take her on a boat in the middle of the lake load her up on a helicopter and get her to the middle of that f------ area."

The defense wants to share this statement at trial to show that Fox" is expressing

fantastical ideas that were not a credible threat and have no basis in reality. He

has no boat and no access to a Blackhawk Helicopter."

The defense says the statement shows that some of the alleged conspirators " lived in a dream world where they fantasized about being real-life combat operators."

Fox also expressed concerns about doing anything wrong and stated that he didn't want to kidnap the governor, argues the defense, which wants jurors to hear this statement by Fox:

"I just, I don’t know. I start thinking about out doing it, it’s just like all the things like you know, like we could do that but at the end of the day it’s going to — it’s going to — it will wreak havoc on the community. Even if we don’t hurt nobody, just the action alone is going to devastate that community."

The defense believes that role playing is a central issue in this case. That's why it wants to introduce the defendants' statements about helicopters, boats, and movie-type shenanigans "to show the full picture of what happened here."

Contact Tresa Baldas: tbaldas@freepress.com

This article originally appeared on Detroit Free Press: Defense: Suspect didn't mastermind Whitmer kidnap plot. The FBI did