(CN) — Co-defendants who faced two trials and were ultimately convicted for their roles in a conspiracy to kidnap Michigan Governor Gretchen Whitmer argued Thursday a federal court abused its discretion when it excluded thousands of text messages between federal agents and informants.
Adam Fox, a Michigan resident, and Barry Croft Jr., who is from Delaware, also claim the trial court failed to properly investigate misconduct that included one juror who told co-workers he intended to find the men guilty regardless of the evidence.
The men were convicted on Aug. 23, 2022, in U.S. District Court for the Western District of Michigan, following an initial trial earlier in the year that saw two other defendants, Daniel Harris and Brandon Caserta, acquitted of conspiracy charges.
Fourteen people were charged with either state or federal crimes in connection to the plot to kidnap Whitmer in the wake of unpopular Covid-19 restrictions mandated in Michigan; five were ultimately convicted.
The unsuccessful plan involving Fox and Croft included "live-fire" military-style training operations and scouting missions to Whitmer's vacation home in northern Michigan, and began with Facebook and other social media messages between members of the conspiracy.
The final trial related to the kidnapping plot ended in September 2023 with acquittals for three men, two of whom testified in their own defense and admitted traveling to Whitmer's vacation home.
In his brief to the Sixth Circuit, Fox argues the trial court violated his constitutional rights when it failed to hold a hearing after his attorney learned a juror told a co-worker before the trial "the defendants were guilty and he'd make sure those guys were going to hang."
Although the court questioned the juror about potential misconduct in a closed meeting and he denied making such a statement, Fox's attorney was excluded, a move he claims deprived him of a fair hearing. Fox says he deserves a new trial.
Fox's attorney, Steven Nolder of Columbus, Ohio, cited the Seventh Circuit's decision in the 1998 case United States v. Stafford, in which the appeals court ruled a midtrial meeting over juror misconduct should only be held "when there is a strong indicator of bias."
The trial court's decision to hold such a meeting in this case, according to Nolder, meant there was a "colorable claim" for bias that required the presence of the defendants' counsel.
U.S. Circuit Judge Stephanie Davis, a Joe Biden appointee, was skeptical.
"I don't read 'strong indicator' and 'colorable' as the same," she told the attorney.
Nolder emphasized that further investigation after the trial bolstered the claim.
Assistant U.S. Attorney Nils Kessler, who tried the initial case and also argued on behalf of the government at Thursday's appeal, disagreed.
"The later information made the claim less credible," Kessler told the court. "You didn't have three people who heard [the juror's statement], you had a longer chain of transmission [that amounted to] triple hearsay and no one who would come forward."
Croft focuses his brief on the lack of evidence presented by the prosecution and labels the charges a "farce" that stemmed from a plot "orchestrated [by] the FBI and its tightly controlled informants." Croft says the trial court improperly excluded messages between FBI agents and several confidential informants.
Croft's attorney, Tim Sweeney of Cleveland, Ohio, emphasized on Thursday that proof of entrapment was "critical" to his client's case and that the messages were not hearsay and "should be treated as admissions of the government's conduct."
U.S. Circuit Judge Joan Larsen, an appointee of Donald Trump, asked if evidentiary rules should be interpreted so broadly and, specifically, whether any confidential informant's communications are admissible.
"These were people who were working as part of the team," Sweeney answered. "They did not just come in off the street with information; they're working within the scope of the agency."
Kessler stressed to the panel that if the defendants were predisposed to commit criminal activity, the excluded evidence "doesn't matter."
Larsen pushed back with several questions and pointed out a theme in the informants' messages to Croft and Fox that urged them to make definitive plans for the kidnapping.
"There are no statements that put that kind of pressure on them, it has to be more than just friendship," Kessler countered. "They have a burden to identify with specificity messages that should have come in, and they didn't do it.
"Pushing the defendants to disclose their plans is not the same as saying, 'we need to go kidnap the governor,'" he added.
Sweeney centered his rebuttal on the excluded evidence and said the messages would have had a substantial impact on the jury's eventual decision.
"Trials are about being able to persuade, and the exclusions really did matter here," the attorney said. "The evidence highlights the conduct of the government agents [and proves] it was going on relentlessly. Those were admissions of government agents and how they were leading the defendants along."
U.S. Circuit Judge Chad Readler, a Trump appointee, rounded out the panel.
Thursday's arguments were held in Nashville instead of the normal location of Cincinnati and were streamed on the court's website.
The court did not set a timetable for its decision.
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