January 18, 2022 — We at Patriots’ Soapbox have been following the case USA vs Fox, et al aka the so-called “Whitmer Kidnapping Plot,” currently wending its way through the legal system. This is one of the most controversial “domestic terror” cases of the decade, raising many questions regarding the use of Confidential Informants and the conduct of their FBI handlers. If you are not familiar with this case, please see our many prior articles that go into more detail. I wanted to provide a brief update on the latest happenings with regard to the upcoming trial. Today there was a hearing on evidence that may be used at trial. Attorneys for Kaleb Franks filed a number of motions; the government also is making a filing.
The focus of today’s hearings was regarding hearsay, out-of-court statements and evidence which both sides will seek to introduce at the upcoming hearing in March. The proceedings suffered from technical difficulties, with some attorneys appearing by video and wearing masks, making it hard to ascertain what they were saying. Judge Jonker began by saying he wanted to hear both the prosecution and the defense positions on key evidentiary issues. Jonker brought up the defendants’ own statements, the out of court statements made by FBI agents and Confidential Human Sources (CHS) which have been brought up in recent Motions before the court. He asked where both parties stand on predisposition evidence which will come into play if the entrapment defense is raised.
The defense seeks to admit over 2oo out of court statements from undercover audio recordings, text messages and encrypted messages. Defense will claim these statements show that it was the government who drove and orchestrated the plot, and that defendants often shot down the CHS’s requests to engage in illegal acts like “offensive kidnapping.” The government prosecution claims the statements are not “relevant” and does not want them admitted at trial. Once admitted, the government would likely call for sworn cross examination the witnesses who made the statements.
The lead prosecutor for the case, Mr. Kessler confirmed at today’s hearing that he plans on calling CHS Dan, the main informant who the defense alleges drove the plot. He has indicated in the past that he does not plan to call the three lead FBI agents and the second main informant CHS Steve Robeson. The defense will likely attempt to call the FBI agents as well as the two main informants in the case. A recent filing by attorneys for defendant Kaleb Franks seeks immunity for both FBI agents and CHSs in return for their testimony at trial.
The government has tried to distance itself from CHS Steve Robeson, hitting him with charges for things he was doing with the full knowledge of the FBI and claiming in a recent filing that he was a “double agent.” The defense has made the argument that the government only did this when they realized what a disaster he would be with regard to an entrapment defense.
The defense also brought up the conduct of FBI agents, which the government claims is not relevant. They specifically mentioned the conduct by Special Agent Jayson Chambers who created a private “intelligence firm” that was seeking to profit financially from the case, even as he was working as a lead agent on it. Chambers initially denied involvement with the business and didn’t officially dissolve it until October of 2021 when Buzzfeed News first broke the story of its existence. The defense argued since he opened this business three months before the case, he might have been using the case and driving the plot to drum up business.
Mr. Kessler simply laughed off the idea, without presenting any counter evidence to down shoot the allegations. He tried to claim this was a “red herring” to distract from the conspiracy case that was being thrown out by the defense.
Judge Jonker did not rule from the bench today regarding these Motions, but it seems from the discussion that occurred with both sides that he certainly seems open to having some admitted and some not. We will find out soon enough.
Recent filings in the case seem to show that the defense plans on calling FBI agents and informants.
The motion, filed among a flurry by the lawyer for defendant Kaleb Franks before a deadline last night, argues that their testimony is essential to the defense's entrapment claims, but is concerned they won't talk for fear of self-incrimination.
— Ken Bensinger (@kenbensinger) January 15, 2022
This could well be very important to the defense.
He also claims that 3 FBI agents whom the DoJ said it won't call as witnesses should get immunity so they can "establish exactly what they did to violate FBI rules and what they did to orchestrate the activity set forth in the superseding indictment."https://t.co/J3AtA4w82o
— Ken Bensinger (@kenbensinger) January 15, 2022
This claim is of particular interest to me as has been my theory for why the government burned Robeson as an informant. It seemed to me they were concerned about what he might say about their own misconduct in the case. This defense has argued that if the court does grant immunity but then DOJ declines to grant it, then the first count in the indictment of kidnapping conspiracy should be thrown out.
“Normally, these people would testify at trial and would answer questions posed by both sides to the case. It is now apparent that a number of both the agents and sources have reason to refuse to testify by invoking their Fifth Amendment rights against self-incrimination.”
— Julie Kelly 🇺🇸 (@julie_kelly2) January 18, 2022
This is certainly a unique case, with very bizarre and disturbing circumstances.
The Detroit News recently reported on an interview defendant Barry Croft gave to a YouTube channel where he discussed the case:
Barry Croft, the accused bombmaker for a group charged with plotting to kidnap and kill Michigan Gov. Gretchen Whitmer, criticized the federal judge handling his case on the eve of a key court hearing that will decide which evidence will be shown to jurors.
Croft faulted the fairness of U.S. District Judge Robert Jonker and called for the impeachment of prejudiced judges during a wide-ranging phone call Friday from the Newaygo County Jail to “The Free Men Report,” a YouTube show by self-described “pro-liberty activists.”
During the wide-ranging interview, Croft, 46, of Bear, Delaware, denied conspiring with five others to kidnap Whitmer. He pinned the blame on as many as 12 informants and undercover agents, and claimed he was entrapped and betrayed by the government.
“Nobody really conspired to do this thing they’re accusing us of,” Croft told hosts Thomas Leager and Jeremy Deeter. “Judge Jonker hasn’t been very fair to us, you know, to date. He’s denied … every one of our motions, and I don’t know how in the interest of a fair trial you can deny everything when you’re able to see the motions the defense has filed.
“It’s really a messy ordeal. It’s really sloppy, and I know that me and the guys here are really worried that we’re going to get a fair trial.”
Croft and four others accused in the kidnapping plot are scheduled to appear at 10 a.m. Tuesday in federal court in Grand Rapids for a hearing to decide whether jurors will be shown certain pieces of evidence during trial starting March 8.
A sixth man, Ty Garbin of Hartland Township, pleaded guilty, is serving six years in federal prison and is expected to be the government’s star witness.
The group is facing charges that could send them to prison for life in a case tthat has focused attention on violent extremism in Michigan. Defense lawyers contend there was no conspiracy and that the case was driven by informants and FBI agents who entrapped the men while committing other misconduct.
“My lawyer seems to think that the case isn’t going to be dismissed by entrapment as a matter of law but the evidence in the case unequivocally equates to the government’s preponderance of the entire criminal enterprise,” Croft said during the interview. – Detroit News
Here are the most recent filings in the case:
These filings come from lawyers for Kaleb Franks.
This will be a key note for the defense.
We will continue to follow this case, please check back for updates.