GRAND RAPIDS, Mich. — Opening statements were given Wednesday morning in the retrial of two men facing charges for allegedly plotting to kidnap and kill Michigan Governor Gretchen Whitmer. Adam Fox and Barry Croft are on trial for the second time facing charges of conspiracy to kidnap, possession of weapons of mass destruction, and possession of a dangerous device.
The jury in their previous trial, which ended back in April, was unable to return verdicts on any of their charges.
Daniel Harris and Brandon Caserta, co-defendants in the first trial, were acquitted on all of their charges.
A jury was sworn in for the retrial late Tuesday afternoon, with opening statements beginning first thing Wednesday morning.
Assistant US Attorney for the Western District of Michigan, Chris O'Connor, gave the opening statement for the Government.
"This wasn’t just talk. You will see these defendants and others took specific steps, planning and training... they first determined where she (Governor Whitmer) lived, they performed reconnaissance on her summer cottage up north on two different occasions, they assembled the equipment they need, body armor, ammunition, flex cuffs... they trained in what they called shoot or kill houses," O'Connor said.
"But when they started to try and obtain explosives for their plan, the FBI stepped in and arrested the defendants before anyone could be harmed."
The defense will argue that it was undercover FBI agents and confidential human sources that entrapped the men into any alleged conspiracy.
O'Connor focused heavily on the notion that the FBI had been investigating Croft and Fox before undercovers had infiltrated their group.
"This case doesn’t start because of COVID-19, this kidnapping is not just because of COVID-19 when it hit our shores in March 2020. It starts several years before that," O'Connor said.
"They wanted to kidnap and hang governors long before they wanted to kidnap Michigan's governor."
He explained to the jury that they will see and hear multiple video and audio recordings collected by undercover informants and undercover FBI agents between June and October 2020.
Ty Garbin and Kaleb Franks, the two other co-defendants who entered into plea deals with the government prior to the start of the first trial, are expected to testify on behalf of the prosecution during the retrial.
"They will come into this courtroom and will tell you that they agreed with Adam Fox and Barry Croft, they agreed to kidnap the governor. They will tell you how real this plot is, tell you why they wanted to kidnap a governor, and tell you they’re going to prison for what they did," O'Connor explained.
Ty Garbin was sentenced to just over 6 years in prison for his role in the alleged plot. Kaleb Franks will not be sentenced until the retrial is complete.
Both men testified for the government in the first trial as well.
There was no mention of Daniel Harris or Brandon Caserta in the government's opening statement.
Chris Gibbons, attorney for Adam Fox, was up next.
"After 2-3 months of following and surveilling this group, the FBI had not yet uncovered any criminal activity," Gibbons said.
"In June, due to lack of criminal activity, the FBI and informants turned up the heat by putting big talkers together, having meetings, trainings, putting together chat groups, so they could interact and exchange their big talk ideas."
Gibbons said that one of the government's most involved undercover informants, "Big" Dan Chappel, took matters into his own hands to try and push the men to enter into criminal acts.
"Big Dan is the beginning, middle, and end of this case," he explained.
"From March 16, 2020 to October 7, 2020, Big Dan is at nearly every event that is of merit or issue. Every training, every chat group, sends thousands of texts to Adam Fox and others... recorded hundreds of hours of meeting, training with Fox and others."
He said that FBI Special Agent Jayson Chambers, the case agent, told Dan on June 23 to "get Adam focused".
Gibbons spoke about several photos the government has put forward showing Adam Fox drawing a map of the area around the governor's Elk Rapids cottage, saying Big Dan told him to draw it, and provided the paper and pen to do so.
"The talk, no matter how ugly, is not a crime. It is not a crime to engage in heated rhetoric, it's not a crime to say outrageous things, it's not a crime to not like your government, it's not a crime to not like your governor, your president, or anyone else who sits in elected office," Gibbons said.
"Big talk, without more, is nothing."
Barry Croft's attorney, Joshua Blanchard, began his opening statement by explaining how Croft first appeared on the FBI's radar.
He said that the FBI had been trying to find KC Massey, the "leader of a Texas anti-immigrant militia", when they found Croft communicating with him.
Massey was later found dead in Van Zandt County, Texas.
He said they continued watching Croft after Massey's death, but after about a year's time, had not "found anything to arrest Barry for".
"One day they learn he’s (Croft) going to a meeting where Fox will be present, and the FBI knows about the investigation going in Michigan," Blanchard explained.
"They know if they can get Barry into this group this might be their chance to arrest him... They know in order to take Barry down, they need him to agree to do something illegal."
He said Croft did have online communications with Fox, but "they don’t really know each other".
According to Blanchard, an FBI special agent sent a text message to one of their confidential human sources, Jenny Plunk, saying, "For a guy who acts like he’s itching for a fight, he sure does act like a coward. He just needs to be called a p—y. Ask Barry if he’s a puss."
Blanchard said the agents and undercover informant would call Croft a moron, idiot, and bonehead.
He also played an audio recording of FBI Special Agent Henrik Impola apparently saying, "don’t let the facts get in the way of a good story, right."
"They overlooked the truth in this case, because they weren’t willing to let the facts get in a way of a good story they wanted to tell," Blanchard said.
"Tell the FBI that the truth matters."
Following opening statements, the government began presenting their case by calling FBI Special Agent Todd Reineck, who works out of their Ann Arbor office, to the stand.
Reineck has a history of working cases involving domestic terrorism.
"Would the FBI open a case on a private militia just because they are a militia?," Assistant US Attorney Nils Kessler asked Reineck.
"No," he responded.
Reineck explained that there are certain criteria that must be met for them to open an investigation into a group, particularly a militia group.
He claimed there must be a potential for use of force and violence, there must be a belief system in place, and there must be a violation of federal law.
Much of the testimony was going over terms specific to this case, and explaining tactics the FBI used to collect evidence, such as encrypted chat logs and Facebook conversations.
PROSECUTOR'S NEW APPROACH
Unlike in the first trial, the government is now saying that Fox and Croft were planning some sort of violent "second revolution" for years before the FBI or any undercover informants showed up.
They played several audio and video recordings in court Wednesday of both Fox and Croft seemingly talking about their disdain for the government.
Adam Fox is seen in one video from April 30, 2020, at the state capitol in Lansing.
He is wearing a Hawaiin shirt in the video, a clothing choice prosecutors say shows his embrace of the Boogaloo movement.
According to the Anti-Defamation League, "Boogaloo" is a "slang reference to a future civil war, a concept boogalooers anticipate and even embrace."
The ADL says the group was formed in 2019 as an "anti-government extremist movement".
They also played videos that Fox posted to his Facebook page talking about the Boogaloo.
FOX 17 asked defense attorneys Chris Gibbons and Joshua Blanchard about this new tactic as they were leaving the courthouse Wednesday afternoon.
"Yes, we have a brand new militia we didn’t hear about in the first trial," Gibbons said, almost sarcastically.
"Did you client break up with mine, Is that what happened?," Blanchard added in a similar tone.
Gibbons continued, "So the 2nd Continental Michigan Regiment, I guess, my client was in in June, shortly before he... decided to man the post for the Michigan 3% Militia that was offered to him by the federal government.”
When asked about the handful of audio and video recordings the government played in court Wednesday, Blanchard said, "It's the same game they played last time, Right? They put in little snippets... you heard from, I think, Agent Reineck today that there’s over 1,000 hours of recordings, and they’re putting in 15- 20 second clips.”
Testimony resumes Thursday morning at 8:30 a.m. at the federal courthouse in downtown Grand Rapids.