Entrapment claims, allegations that media tainted the possibility of a fair trial and the arrest of a lead FBI agent who’s now accused of brutally beating his wife following a swingers’ sex party are among the latest developments in the prosecution of 14 men charged with conspiring to kidnap Michigan Gov. Gretchen Whitmer.
One night in September, three vehicles filled with alleged terrorists and undercover FBI informants conducted surveillance on Whitmer’s vacation home.
A group stopped to inspect a bridge that one FBI informant said he could help them detonate in an effort to slow police response should they abduct Whitmer from her Birch Lake cottage near Grand Traverse Bay. Others used night vision goggles to peer in on the politician’s home from across the water at a boat launch.
Related: Ties that bind men accused in Whitmer kidnap plot
The plan, according to the FBI and Michigan Attorney General Dana Nessel, was to kidnap Whitmer and potentially strand her in the lake or transport her to Wisconsin to be tried for treason in the hopes of sparking a civil war, officials have said.
The men were angry over coronavirus lockdown orders that they believed infringed on their rights.
Attorneys for several of the accused conspirators in court filings and during arguments claim this is a case of entrapment, that without the FBI and its at least one dozen paid informants encouraging the men, offering up an explosives expert or paying for hotels and other costs related to meetings and training sessions, the plan would have never hatched.
Entrapment
Portage-based attorney Scott Graham, who represents Kaleb Franks, believes the government is withholding a trove of communications that would prove that argument.
“When Kaleb Franks set out to train in weaponry and tactics, enjoy time outdoors, and spend a midwestern summer trying to find respite from the cares of professional and personal obligations and demands, he had no thoughts of harassing the government, staging a coup, or ending up on the national stage as an alleged terrorist,” Graham wrote in a July 15 federal court filing. “Only through the diligent efforts of government informants and undercover agents did Mr. Franks end up framed as a lawless agitator.”
Graham in a motion is asking Chief U.S. District Judge Robert J. Jonker of the Western District of Michigan to order the FBI to release to the defense all of its communications with and files pertaining to informants.
“Counsel asks the court to order the government to produce all materials related to the confidential human sources used in this case, their qualifications and the vetting they underwent, their performance and their communication with agents, and any instructions and admonishments,” Graham wrote.
Similar accusations were put forth in another motion filed July 12 by attorney Michael D. Hills, who represents Brandon Caserta. Hills points to a brief text-message exchange between an FBI handler and informant that he believes illustrates possible entrapment.
A portion of the conversation appeared in cellphone screen shots that Hills believes the government inadvertently released to the defendants as part if its discovery and evidence release. Now Hill is asking for a full forensic imaging and extraction of the the informant and FBI agent involved in the exchange.
The FBI agent, identified in the filing as Henrick Impola, asked the informant, who used the moniker “Thor,” to “maximize attendance” and invite several of the now defendants, including Daniel Harris, Adam Fox, the alleged ringleader, and Ty Garbin, to conduct reconnaissance at Whitmer’s vacation home.
“In the small window the defense has into communications ... the FBI is encouraging its paid informant, on FBI phones, to actively bring Caserta into a recon to create an overt act in furtherance of conspiracy, or create evidence of an agreement regarding a conspiracy,” Hills wrote. “Thor gets the command from his handler and complies, actively orchestrating and pushing at least one of the overt acts alleged in the superseding indictment, that is attempting to corral as many people into the alleged conspiracy as possible.”
Exhibits entered by the U.S. Attorney's Office during the detention hearing for Gov. Gretchen Whitmer kidnap plot suspect Barry Croft Jr.
Domestic violence
FBI Agent Richard Trask II testified for the prosecution in several federal hearings as one of the lead orchestrators and supervisors of the sting that led to 13 arrests in October.
He’s now facing criminal charges of his own, accused of smashing his wife’s head against a nightstand and choking her at a home in Kalamazoo County’s Oshtemo Township on July 18, according to a criminal complaint filed this week.
On the day of the attack, Trask and his wife drank alcohol while attending a swingers party at a hotel in Oshtemo Township, Trask’s wife told police. She didn’t like the event and the couple fought on the drive home, according to an affidavit in support of the charges against Trask.
In their bedroom at home, the wife was laying down when Trask got on top of her and grabbed the sides of her head, the affidavit said. Trask smashed her head into a nearby nightstand multiple times, the wife told police.
Trask’s wife then tried to grab Trask’s beard to get him off of her, but he started to choke her, the affidavit said. The woman told police she doesn’t think she lost consciousness before she grabbed Trask’s testicles, ending the fight, the affidavit said.
Trask’s wife had multiple cuts on the right side of her head and severe bruising on her neck when police arrived, the affidavit said. She also had blood running out of her head and all over her chest, clothing, arms and hands. Trask grabbed some clothing and fled the house in his wife’s vehicle, according to the affidavit.
Police found Trask in the Meijer parking lot where he was arrested and refused to give a statement. Trask is charged with a felony count of assault with intent to do great bodily harm less than murder, punishable by up to 10 years in prison.
The FBI has acknowledged that it is aware of the charges, but spokesperson Mara Schneider declined further comment. It’s not clear if Trask’s role as a lead witness for the prosecution in the kidnap plot case will continue.
Exhibits entered by the U.S. Attorney's Office during the detention hearing for Gov. Gretchen Whitmer kidnap plot suspect Barry Croft Jr.
Media meddling
The unique circumstances surrounding the Whitmer kidnap plot spurred extraordinary public interest in the case, including national attention from the New York Times and Buzzfeed.
That attention, attorney Hills wrote in a request to change the venue of the trial, tentatively set for Oct. 12 in Grand Rapids, “has corrupted the potential trial atmosphere to the point that Mr. Franks will be denied a fair trial in Michigan.”
If the judge grants the motion, it would be a rare ruling.
Judge Jonker has already taken measures to attempt and ensure public scrutiny doesn’t bias possible jurors. A protective order was issued to ban attorneys from discussing and sharing documents or evidence with the public or media.
Several media companies, including the Detroit News and New York Times, fought for and successfully convinced the court to allow release of certain photos and videos entered into the record as exhibits during a detention hearing for defendant Carry Croft Jr. Photos depict Croft with armed with a military-style gun and shouldering a Boogaloo Boys Hawaiian pattern flag. The video shows croft is seen crouching behind barrels and firing on targets with a rifle while wearing a Continental soldier-styled hat during a Wisconsin training exercise.
Related: Boogaloo Boys not as light hearted as their flowery Hawaiian shirts, FBI agent testifies
The judge, however, denied media requests for audio recordings of Croft that were played at his detention hearing.
“In the audio recordings, defendant Croft expounds in an excited tone about his intent to commit acts of terrorism and claims God has granted him permission to do so,” Jonker wrote in his order denying release of the audio. “In one recording, Croft explicitly discusses kidnapping Governor Whitmer.
“These recordings are more inflammatory in tone than most of the exhibits introduced at the codefendants’ hearings, and they also speak to ultimate issues, which carries the greater danger of tainting the prospective jury pool.”
Jonker acknowledged public interest in the case is “legitimate,” but said he must weigh that against the bias public access to the case could potentially create.
The U.S. Attorney’s Office has indicated it disagrees with the request to move the trial, but has not yet submitted a brief on the subject.
More on MLive:
FBI agent accused of beating wife after swingers’ party
The ties that bind men accused in Whitmer kidnap plot
New charges: ‘Weapons of mass destruction’
Twins charged in kidnap plot to remain tethered
West Michigan brothers accused in Whitmer kidnapping plot now out of jail
Michigan man says he surveilled Gov. Whitmer’s home in kidnap plot
‘He can’t believe he got involved’ in Gov. Whitmer kidnap plot, attorney says
Judge denies bond for alleged leader in Whitmer kidnapping plot, described as ‘violent extremist’
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