DOJ's Response To Barry Croft/Adam Fox Appeal

Case: 23-1029 Document: 38 Filed: 12/13/2023 Page: 1
IN THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT
____________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ADAM DEAN FOX and 23-1014

BARRY GORDON CROFT, JR., 23-1029
Defendants-Appellants.
____________________________
On Appeal from the United States District Court

for the Western District of Michigan
No. 1:20-CR-183
____________________________
BRIEF FOR APPELLEE

____________________________
ANDREW BYERLY BIRGE

Attorney for the United States
Acting under Authority Conferred by
28 U.S.C. § 515
NILS R. KESSLER
Assistant United States Attorney
Post Office Box 208
Grand Rapids, Michigan 49501-0208
(616) 456-2404
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .................................................................... iii
STATEMENT REGARDING ORAL ARGUMENT .................................. x
STATEMENT OF JURISDICTION .......................................................... 1
ISSUES PRESENTED .............................................................................. 2
STATEMENT OF THE CASE .................................................................. 3
SUMMARY OF THE ARGUMENT ........................................................ 62
ARGUMENT ........................................................................................... 67
I. Viewed in the light most favorable to the prosecution, the

evidence was sufficient for a rational jury to have found the
defendants guilty................................................................... 67
II. The District Court Did Not Abuse Its Discretion When It
Declined to Allow Defense Counsel to Interrogate a Juror
Mid-trial Based on Hearsay Allegations Attributed to an
Anonymous Individual Who, When Found, Said He Would
Deny Them If Called as a Witness. ...................................... 85
III. The District Court Did Not Abuse its Discretion When, After
Repeated Warnings, It Placed a Time Limit (But No Content
Limits) On The Cross Examination of One Corroborating
Witness. ................................................................................. 92
IV. The District Court Did Not Abuse Its Discretion When It
Allowed The Defendants to Introduce The Statements of
Sworn Federal Agents as Non-hearsay, But Limited The
i
Admission of Informant Statements to Those Made Within

The Scope of An Agency Relationship. ............................... 100
CONCLUSION ...................................................................................... 108
CERTIFICATE OF SERVICE............................................................... 109
CERTIFICATE OF COMPLIANCE ...................................................... 110
DESIGNATION OF RELEVANT DISTRICT COURT DOCUMENTS111
ii
TABLE OF AUTHORITIES
Page(s)
Cases
Barnes v. Joyner,
751 F.3d 229 (4th Cir. 2014) ................................................................ 87
Crane v. Kentucky,
476 U.S. 683 (1986) ............................................................................ 107
Cunningham v. Shoop,
23 F.4th 636 (6th Cir. 2022) ................................................................ 86
Delaware v. Fensterer,
474 U.S. 15 (1985) ................................................................................ 92
Dorsey v. Parke,
872 F.2d 163 (6th Cir. 1989) .................................................... 92, 94, 97
Gooch v. United States,

297 U.S. 124 (1936) .............................................................................. 76
Haxhia v. Lee,
637 F. App’x 634 (2d Cir. 2016) ........................................................... 89
Jackson v. Virginia,
443 U.S. 307 (1979) ........................................................................ 67, 68
Kotteakos v. United States,

328 U.S. 750, 66 S. Ct. 1239, 90 L. Ed. 1557 (1946) ......................... 101
Mathews v. United States,

485 U.S. 58 (1988) .................................................................... 80, 81, 83
MCI Communications Corp. v. American Tel. & Tel. Co.,

708 F.2d 1081 (7th Cir. 1993) .............................................................. 93
McPherson v. Woods,
506 F. App’x 379 (6th Cir. 2012).................................................... 94, 95
iii
Pinkerton v. United States,

328 U.S. 640 (1946) .............................................................................. 74
Remmer v. United States,

347 U.S. 227 (1954) .............................................................................. 85
Rockwell v. Yukins,
341 F.3d 507 (6th Cir. 2003) .............................................................. 107
Rodriguez-Landa,
Case No. 2:13-cr-00484-CAS-1, 2019 WL 1755518 ........................... 103
Ross v. Parrot’s Landing, Inc.,

No. 21-1774/1803, 2022 U.S. App. LEXIS 28588 (6th Cir. Oct. 13,
2022) ............................................................................................... 92, 93
Sec’y of Labor v. DeSisto,

929 F.2d 789 (1st Cir. 1991) ................................................................ 93
Sherman v. United States,

356 U.S. 369 (1958) ............................................................................ 104
Skinner v. Cardwell,
564 F.2d 1381 (9th Cir. 1977) .............................................................. 95
Smith v. Phillips,
455 U.S. 209 (1982) .................................................................. 86, 87, 89
Sutkiewicz v. Monroe Cnty. Sheriff,

110 F.3d 352 (6th Cir. 1997) ................................................................ 92
Tracy v. Palmateer,
341 F.3d 1037 (9th Cir. 2003) ........................................................ 88, 89
United States v. Amawi,

695 F.3d 457 (6th Cir. 2012) .......................................................... 71, 72
United States v. Angulo,

4 F.3d 843 (9th Cir. 1993) .................................................................... 86
United States v. Bailey,

2022 WL 2444930 (6th Cir. July 5, 2022) ..................................... 48, 86
iv
United States v. Baker,

494 F.2d 1262 (6th Cir. 1974) .............................................................. 95
United States v. Blakeney,

942 F.2d 1001 (6th Cir. 1991) .............................................................. 68
United States v. Boylan,

898 F.2d 230 (1st Cir. 1990) ................................................................ 90
United States v. Bradshaw,

281 F.3d 278 (1st Cir. 2002) ................................................................ 90
United States v. Branham,

97 F.3d 835 (6th Cir. 1996) .......................................................... 57, 102
United States v. Carnes,

309 F.3d 950 (6th Cir.2002) ................................................................. 68
United States v. Dalton,

40 F. App’x 420 (9th Cir. 2002)............................................................ 86
United States v. Dandy,

998 F.2d 1344 (6th Cir. 1993) .............................................................. 68
United States v. Dutkel,

192 F.3d 893 (9th Cir. 1999) ................................................................ 88
United States v. French,

977 F.3d 114 (1st Cir. 2020) ................................................................ 87
United States v. Gagnon,

470 U.S. 522 (1985) .............................................................................. 90
United States v. Garrett,

542 F.2d 23 (6th Cir. 1976) .................................................................. 94
United States v. Gjokaj,

555 F. App’x 581 (6th Cir. 2014).......................................................... 89
United States v. Griffin,

547 F. App’x 917 (11th Cir. 2013)........................................................ 77
v
United States v. Guadaramma,

591 Fed. App’x 347 (6th Cir. 2014) ...................................................... 68
United States v. Harris,

9 F.3d 493 (6th Cir. 1993) .................................................................... 81
United States v. Haywood,

280 F.3d 715 (6th Cir. 2002) .............................................................. 101
United States v. Herrera-Medina,

853 F.2d 564 (7th Cir. 1988) ................................................................ 94
United States v. Jimenez Recio,

537 U.S. 270 (2003) .............................................................................. 76
United States v. Lopez-Medina,

461 F.3d 724 (6th Cir. 2006) ................................................................ 81
United States v. Makhlouta,

790 F.2d 1400 (9th Cir. 1986) ............................................................ 106
United States v. McCabe,

812 F.2d 1060 (8th Cir. 1987) .............................................................. 77
United States v. McDaniel,

398 F.3d 540 (6th Cir. 2005) .............................................................. 101
United States v. Muhammad,

928 F.2d 1461 (7th Cir. 1991) ........................................................ 96, 97
United States v. Nelson,

922 F.2d 311 (6th Cir. 1990) ................................................................ 80
United States v. Owens,

426 F.3d 800 (6th Cir. 2005) ................................................................ 85
United States v. Pennell,

737 F.2d 521 (6th Cir. 1984) ................................................................ 88
United States v. Perry,

438 F.3d (6th Cir. 2006) ....................................................................... 85
vi
United States v. Phillips,

872 F.3d 803 (6th Cir. 2017) ................................................................ 74
United States v. Poulsen,

655 F.3d 492 (6th Cir. 2011) ................................................................ 81
United States v. Prince,

214 F.3d 740 (6th Cir. 2000) ................................................................ 67
United States v. Pulido,

69 F.3d 192 (7th Cir. 1995) .................................................................. 94
United States v. Reaves,

636 F. Supp. 1575 (E.D. Ky. 1986) ................................................ 51, 93
United States v. Reed,

167 F.3d 984 ................................................................................. 58, 104
United States v. Rigsby,

45 F. 3d 120 (6th Cir. 1995) ........................................................... 85, 88
United States v. Rugiero,

20 F.3d 1387 (6th Cir. 1994) ................................................................ 88
United States v. Sadiqullah,

2021 WL 3043271 (6th Cir. 2021) ....................................................... 82
United States v. Satterfield,

743 F.2d 827 (11th Cir. 1984) .............................................................. 77
United States v. Schultz,

855 F.2d 1217 (6th Cir. 1988) .............................................................. 71
United States v. Shackelford,

777 F.2d 1141 (6th Cir. 1985.) ............................................................. 89
United States v. Smith,

320 F.3d 647 (6th Cir. 2003) ................................................................ 71
United States v. Spangler,

638 F. App’x 611 (9th Cir. 2016).................................................... 95, 96
vii
United States v. Sutton,

769 Fed. App’x 289 (6th Cir. 2019) ...................................................... 82
United States v. Thomas,

567 F.2d 638 (5th Cir. 1978) ................................................................ 71
United States v. Tucker,

28 F.3d 1420 (6th Cir. 1994) ................................................................ 81
United States v. Vickers,

578 F.2d 1057 (5th Cir. 1978) .............................................................. 76
United States v. Vining,

224 F. App'x 487 (6th Cir. 2007).......................................................... 85
United States v. Washington,

715 F.3d 975 (6th Cir. 2013) ................................................................ 73
United States v. White,

815 F. App’x 27 (6th Cir. 2020).......................................................... 104
United States v. Williams,

998 F.3d 716 (6th Cir. 2021) ................................................................ 67
United States v. Wright,

343 F.3d 849 (6th Cir. 2003) .............................................................. 100
United States v. Wright,

774 F.3d 1085 (6th Cir. 2014) .............................................................. 67
United States v. Yildiz,

355 F.3d 80 ................................................................................. 103, 105
United States v. Zelinka,

862 F.2d 92 (6th Cir. 1988) .................................................................. 88
Whitehead v. Cowan,
263 F.3d 708 (7th Cir. 2001) ................................................................ 88
Williamson v. United States,

207 U.S. 425 (1908) .............................................................................. 71
viii
Williamson v. United States,

512 U.S. 594 (1994) .................................................................... 101, 102
Statutes
18 U.S.C. § 1201 ...................................................................................... 76
18 U.S.C. § 2113(a) .................................................................................. 74
18 U.S.C. § 2331(5) .................................................................................. 77
18 U.S.C. § 3231 ........................................................................................ 1
28 U.S.C. § 1291 .................................................................................... 1, 4
Rules
Fed. R. Evid. 403 ....................................................................... 59, 93, 104
Fed. R. Evid. 611(a) ................................................................................. 93
Fed. R. Evid. 801(c) ............................................................................... 101
Fed. R. Evid. 801(d)(2)(D) ............................................................... 57, 102
Fed. R. Evid. 802 ................................................................................... 101
Other Authorities
Federal Evidence § 8:56 (4th Ed. May 2021) ........................................ 103
Sixth Circuit Pattern Criminal Jury Instruction 3.01A................... 69, 71
Sixth Circuit Pattern Criminal Jury Instruction 6.03 ........................... 82
Weinstein's Federal Evidence (2d ed. 2004) ......................................... 103
ix
STATEMENT REGARDING ORAL ARGUMENT
The United States requests oral argument because the appeal
presents important issues of fact and law arising from a multi-week jury
trial with a voluminous record. Accordingly, the decisional process would
be significantly aided by oral argument.
x
STATEMENT OF JURISDICTION
The district court had subject-matter jurisdiction under 18 U.S.C.
§ 3231 because Defendants-Appellants Adam Dean Fox and Barry
Gordon Croft, Jr. were charged with federal crimes.
For Adam Dean Fox, the court entered its judgment of conviction
and sentence on December 27, 2022. (R.801: Judgment, PageID.10635.)
Fox filed a notice of appeal on December 29, 2022. (R.806: Fox Not.,
PageID.10661.)
For Barry Gordon Croft, Jr., the court entered its judgment of
conviction and sentence on December 29, 2022. (R.804: Judgment,
PageID.10649.) Croft filed a notice of appeal on January 7, 2022. (R.808:
Croft Not., PageID.10666.)
This Court has appellate jurisdiction to review each of the
defendants’ convictions under 28 U.S.C. § 1291.
1
ISSUES PRESENTED
1. Viewed in the light most favorable to the prosecution, was the
evidence sufficient for a rational jury to have found the
defendants guilty?
2. Did the district court abuse its discretion by not allowing
defense counsel to interrogate a juror mid-trial based on
hearsay allegations of juror bias attributed to an anonymous
individual who, when found, said they would deny the
allegations if called as a witness?
3. Did the district court abuse its discretion when, after repeated
warnings, it placed a time limit (but no content limits) on the
cross examination of one corroborating witness whom the
defendants previously cross-examined at the first trial?
4. Did the district court abuse its discretion when it allowed the
defendants to introduce the statements of sworn federal
agents as non-hearsay, but limited the admission of informant
statements to those made within the scope of an agency
relationship?
2
STATEMENT OF THE CASE
1. The Offense Conduct Established at Trial
a. Prelude to the Conspiracy
In March 2020, the Federal Bureau of Investigation (“FBI”)
received a tip from Michigan resident Dan Chappel. (R.838: Trial Tr. Vol.
II: PageID.14461, 14544.) Chappel, a decorated combat veteran, had
recently joined the Wolverine Watchmen (a Michigan-based “militia”) to
maintain his firearms skills. (R.841: Trial Tr. V, PageID.15060-61.)
Chappel became concerned when the group began to discuss killing local
law enforcement officers. (R.841: Trial Tr. V, PageID.15064-65.)
Chappel reported his concerns to a friend in local law enforcement
and was contacted by the FBI about a week later. (R.841: Trial Tr. V,
PageID.15066.) Chappel reluctantly agreed to remain with the Wolverine
Watchmen and collect information as a confidential human source
(“CHS”). (R.841: Trial Tr. V, PageID.15066-67.) He was given recording
devices, which he used to capture conversations between the
conspirators. (Id. PageID.15067-68.) Chappel also gave FBI agents his
username and log-in passwords so they could monitor his encrypted
online communications with the Watchmen. (Id. PageID.15072.) In
3
addition, agents began collecting the subjects’ unencrypted social media
communications with federal search warrants. (R.838: Trial Tr. II,
PageID.14468.)
Meanwhile, the FBI’s Baltimore field office had been pursuing a
separate investigation of Delaware resident Barry Croft since the spring
of 2019. (R.839: Trial Tr. III, PageID.14714.) Croft was communicating
with a federal fugitive sought by the Dallas field office and posting
threats to kill FBI agents. (Id. PageID.14714-15.) Croft had already long
been involved in anti-government extremism and had by 2017 tattooed
the crest of the “Three Percenter” (“III%”) movement on one hand and
“We the People” and “Expect Us: Second Continental Delaware
Regiment” on his forearms. (R.841: Trial Tr. V, PageID.15181-83; Ex. 48.)
He had also ordered uniform patches for his regiment, combining a III%
flag with the Confederate battle flag. (Id. PageID.15182, Ex. 332.)
In early October 2019, Croft wrote to a private Facebook friend that
he was “[p]lanning a flash gathering in Ohio soon. Flash, 2 weeks max
notice, too quick for the feds to cut red tape and infest.” (R.838: Trial Tr.
II, PageID.14491; Ex. 499.) He later said in a recorded conversation that
4
he had been plotting to abduct a state governor since at least December
2019:
I was saying, look, guys, get these events gathered up. These
Second Amendment gather, gatherings, get that gathered up,
go to the capitol, raise a bunch of hell, turn that thing into a
riot, and then let me take the militia and go grab that fucking
governor right where he lives at.
(R.841: Trial Tr. V, PageID.15101, Gov’t Ex. 112.)
In December 2019, Fox posted a Facebook message encouraging
others to join in armed rebellion against government authority, asking,
“Who else is ready for the Boogaloo?” (R.838: Trial Tr. II, PageID.14474
Ex. 435.) He posted memes with guillotine imagery and a reference to the
III% movement, and in January 2020, he posted a picture of himself
holding flexible zip-tie style handcuffs. (R.839: Trial Tr. III,
PageID.14676: Ex. 437; R.838: Trial Tr. II, PageID.14500; Ex. 2.)
b. Croft recruits Fox online
In February 2020, Croft became Facebook friends with Michigan
resident Adam Dean Fox. (R.838: Trial Tr. II, PageID.14479; Ex. 479.)
They exchanged phone numbers, and continued to correspond using
Facebook text, audio, and video messaging throughout the spring. (Id.)
Croft enticed Fox to join his earlier referenced “flash gathering” in Ohio,
5
and told him, “It will be a significant meet.” Fox replied, “Can’t wait.”
(Id.) Fox assured Croft he was “ready to get something done, be someone
that actually makes a difference. It’s time to inspire and move people.”
(Id.) When Fox said he was going to be a “savage on that battle field,”
Croft answered, “Roger that, I have some good ideas that require the gift
of physical.” (Id.)
In April 2020, Croft posted online that executing state governors
would lead to a second American Revolution. (R.844: Trial Tr. Vol. VIII,
PageID.15945.) He said, “I believe, all it’s going to take is 1 state, to burn
out and hang a Govenor (sic), and those dominoes will start falling!!!%”
(Id.; Gov’t Ex. 4.) In May 2020, he posted a picture of a noose and a car
mirror with the phrase, “1776.2: objects in mirror are closer than they
appear.” (Id.; Gov’t Ex. 360.) He wrote: “Which Governor is going to end
up dragged off, and hung for treason first?” (Id. PageID.15948; Gov’t Ex.
360.)
In a Facebook audio recording on June 2, 2020, Croft told Fox they
would be discussing improvised attack plans at the meeting in Ohio. He
said, “that’s what this weekend is about, man, take it back to your units,
back to the men of your area, discuss what’s been disseminated, and then
6
let’s go get some.” (R.838: Trial Tr. II, PageID.14510; Ex. 486.) Two days
later, Fox asked Croft to “explain the Second Continental Michigan
Regiment” concept to him again, so he could discuss it with others at the
meeting in an informed manner. (R.838: Trial Tr. II, PageID.14513; Ex.
487.) Fox told Croft the meeting was so important to him that he wouldn’t
miss it even though it might cost him a job: “That’s where my heart’s at
… money ain’t that important. Our f—ing constitutional liberties and
freedoms are.” (R.838: Trial Tr. II, PageID. 14516; Ex. 488.)
c. Fox and Croft meet in Dublin, Ohio
On June 6, 2020 Fox and Croft met each other, and anti-
government extremists from several states, at a hotel in Dublin, Ohio.
(R.838: Trial Tr. II: PageID.14521-22; Ex. 42.) FBI agents learned that a
CHS from Wisconsin had been invited to the meeting and provided him
with a recording device. (R.839: Trial Tr. III, PageID.14718-19.) At the
meeting, Croft told the attendants,
I’m going to get into the field. And I’m going to start operating.
And I guaran-fucking-tee you, that motherfuckers are going
to join up at my flanks because they're going to love the shit
that I’m getting ready to do. I’m getting ready to level
buildings, burn motherfucker’s houses down with them inside
of it, and I’m getting ready to fucking put it there so you can
all see it. Listen, you want terrorized? You want to terrorize
people? I’m going to go terrorize people. The right people.
7
(R.839: Trial Tr. III, PageID.14724; Ex. 35.)
Croft further advised the group that he had studied insurgency and
discussed how to make improvised explosive devices and mortars. (R.839:
Trial Tr. III, PageID.14728-29; Ex. 441.)
Fox, for his part, proposed “storm[ing] the Capitol,” and advocated
taking government officials as hostages:
You need to hit them all at the same time, and you need to
take hostages. You need tyrants as hostages. There you have
value. Then human life is the value to it, right? … Now we’re
not just taking brick and mortar buildings. Now we actually
have something that’s valuable to them.
d. Croft facilitates Fox’s recruiting in Michigan; Fox

attempts to recruit a bomb maker
The week after the Ohio meeting, Croft began working to connect
Fox with his contacts in the Wolverine Watchmen. In a Facebook
message, he told Watchmen leader Pete Musico, “Adam Dean Fox is
working on the 2nd Continental, Michigan regiment. Constitutional
defense being of the essence, wherever i am invited, I’ll make haste.”
(R.838: Trial Tr. II, PageID.14479; Ex. 479.) The same day, Croft sent
Fox a Facebook audio message telling him, “I’m sending you the Michigan
8
boys.” (R.838: Trial Tr. II, PageID.14536; Ex. 52.) Fox sent a voice
message to Musico’s son-in-law and Watchmen co-leader Joe Morrison
and told him, “Barry said if we have the same common goal, then I’m sure
we do. And me and you definitely need to sit down and talk.” (R.838: Trial
Tr. II, PageID.14531; Ex. 45.)
The same week, Fox left a voice message for another friend:
I wanna make real change, dude. I don’t want no more of these

fake-ass fucking rallies that don’t do nothing. Like, I wanna
go make actual change. I wanna set this shit up. I want to
bring formal charges against our governor, and tyrants in our
fucking state. And I want to go fucking charge them. And
arrest them. And fucking make them accountable. For once in
our fucking lives, let’s do something fucking bold.
(R.838: Trial Tr. II, PageID.14538; Ex. 54.)
On June 18, 2020, Fox met members of the Wolverine Watchmen in
person at a rally outside the Michigan state capitol. (R.841: Trial Tr. V,
PageID.15078.) That was the first time Fox had ever met Chappel, whom
he later claimed had entrapped him. (Id.) An FBI Online Covert
Employee (“OCE”) introduced Fox to Special Agent Mark Schweers, who
posed undercover as “Mark Woods,” a like-minded individual from the
Upper Peninsula of Michigan. (R.840: Trial Tr. IV, PageID.14906-7.) Fox
invited Schweers and members of the Wolverine Watchmen, including
9
Chappel and Ty Garbin, to a meeting at the Vac Shack, the vacuum
cleaner repair shop in Grand Rapids where he lived and worked. (R.840:
Trial Tr. IV, PageID.14908-10; Ex. 74; R.842: Trial Tr. VI,
PageID.15505.)
At that June 20, 2020 meeting at the Vac Shack, Fox made the
attendees surrender their cellphones for operational security before
descending through a trap door to the basement of the shop. (R.842: Trial
Tr. VI, PageID.15506.) Fox pitched ideas that included storming the
Capitol and executing the Governor and would eventually turn into a plot
to kidnap her instead. (R.841: Trial Tr. V, PageID.15083.) In a
conversation recorded by Chappel, Fox told his potential recruits: “I don’t
feel like we should be waiting until November. I feel like we should be
actively staging and planning … I think we need to be actively staging
and planning things, and if the opportunity presents itself.” (R.841: Trial
Tr. V, PageID.15083; Ex. 64.)
Fox told the attendees about the meeting in Dublin, Ohio: “There’s
so many strategies, man. There was a lot of things discussed in Ohio.
Some of them, pretty farfetched and extreme, I’ll be honest, but I mean,
there is things that we can do … There’s things that we can do to level a
10
tactical playing field for us, even amongst like the chaos of the fucking
riots and shit. You know? Like, we could use that to our fucking
advantage.” (Id.; Ex. 65.)
Fox also talked about recruiting explosives specialist Matt Keepers
and told the group he would be meeting with him the next Monday.
(R.841: Trial Tr. V, PageID.15084; Ex. 66.) During that and other later
recorded conversations, Fox referred to explosives as “cakes” or
“cupcakes,” and an explosives expert as a “baker.” (R.841: Trial Tr. V,
PageID.15098; Ex. 113; PageID.15105, Ex. 122; R.840: Trial Tr. IV,
PageID.14930; Ex. 223.)
The next day (June 21, 2020), Fox reported back to Croft that he
would be bringing the Wolverine Watchmen to a field training exercise
(“FTX”) they both planned to attend in Cambria, Wisconsin. (R.838: Trial
Tr. II, PageID.14540; Ex. 68.)
As promised, Fox reached out to recruit “baker” Matt Keepers on
June 23, 2020. (R.842: Trial Tr. VI, PageID.15487.) Keepers testified that
he and Fox had known each other since 2017-18, when they both belonged
to another local “militia.” (R.842: Trial Tr. VI, PageID.15484) In a private
Facebook message, Fox told Keepers, “This unit is being built with the
11
purpose of taking action,” and reminded him that “we need to keep things
secure.” (Id. PageID.15487-89; Ex. 444.) Keepers testified that two and a
half or three months later, Fox asked him for help procuring explosives.
(R.842: Trial Tr. VI, PageID.15491.) Keepers declined and broke off
contact with Fox. (Id. PageID.15492.)
On June 28, 2020, Fox attended a Wolverine Watchmen FTX in
Munith, Michigan. He told the attendees that they needed to arrest
Governor Whitmer for “acts of treason against the people of the State of
Michigan,” and hang her. (R.842: Trial Tr. VI, PageID.15508.) He and Ty
Garbin encouraged members of the Watchmen to attend the upcoming
FTX in Cambria, Wisconsin. (Id. PageID.15509.) The next day, Croft
messaged an associate: “Michigan’s government is a target of
opportunity. If opportunity presents, will engage. God knows the Govenor
(sic) needs hung.” (R.838: Trial Tr. Vol. II, PageID.14543; Gov’t Ex. 71.)
e. Croft trains with Fox in Wisconsin, and makes a bomb
Over the weekend of July 10-12, 2020, Fox and members of the
Wolverine Watchmen traveled to Cambria, where they met Croft for the
first time. (Id. PageID.15510.) On July 10, they met at a local restaurant.
(R.841: Trial Tr. V, PageID.15092; Ex. 88.) Croft told the group, “I don't
12
like seeing anybody get killed either. But you don't make an omelet
without breaking a few eggs, you know what I mean? So, unfortunately,
bad decisions have put us in a place where eggs are going to have to get
broken. I didn't make any of those decisions and neither did you.” (R.841:
Trial Tr. V, PageID.15093; Ex. 93.)
Addressing why they were training, Croft said, “At some point we’re
going to have to clear the rubbish out of the way,” because “these
governors are destroying this nation.” (R.841: Trial Tr. V, PageID.15095;
Ex. 109.) Speaking of Governor Whitmer, Croft said, “If we get her in
custody, okay? And I hold a trial? I mean I can hold a legitimate trial
based on facts and evidence presented, man. That’s all I need, that’s all I
need, is to hold her accountable for her actions, have her adjudged, and
treason is a hanging offense.” (R.841: Trial Tr. V, PageID.15094; Ex. 106.)
Over the next two days, Fox, Croft and others constructed a “shoot
house,” where they practiced assaulting a room with semiautomatic rifles
and live ammunition. (R.841: Trial Tr. V, PageID.15090-91; Ex. 103;
R.842: Trial Tr. VI, PageID.15510.) Croft proposed storming multiple
state capitols at the same time to generate mass chaos in the Midwest.
(R.842: Trial Tr. VI, PageID.15513-14.) Fox suggested a new target,
13
Governor Whitmer’s vacation home, which he said would be much more
feasible than the state capitol. (Id. PageID.15514.) During the training
exercises, Croft explained his tactical plan to an informant:
Now, here's the thing. If I can plan an operation where I can

rain down on an empty fucking field of police cars, inhibiting
their travel, okay? And then simultaneously plan an operation
across town where I drop a communications tower. And all the
while have a team standing by to grab a fucking governor.
While all that commotion is going on, while all that, their
fucking communications what they have left after blowing the
tower, is lighting up. "Oh my god, there's artillery raining
down on this precinct. This tower just dropped over here on
this fucking municipal airport runway.”
***
And while it's all in the midst of confusion, there's a tornado

spinning through your fucking community, wham! A quick,
precise grab on that fucking governor. And all you're going to
fucking end up having to possibly take out is her armed guard.
Whitmer. Whitmer. Michigan. Whitmer. Her armed guard.
All I'm going to have to possibly neutralize.
***
But see, well, here's the thing: if that precise group of seven
men are prepared for the job? I've put three of them as snipers
with FLEERs, so they’re fucking shooting at heat signatures,
dropping those fucking armed guards before we even broach
the fucking house. All that's left leaving is her, you
understand?
14
Croft told an informant that security personnel would be “armored
targets,” and said bombmaking “is definitely an element that needs
added to the men, bro. Because without the ability for explosives, they’re
not going to have a chance against these guys.” (R.839: Trial Tr. III,
PageID.14737; Ex. 84.) He added, “I need to get these guys demolitions
trained, bro. That’s the element that the militia’s missing.” (Id.
PageID.14742; Ex. 85.)
Croft brought a red duffel bag filled with bombmaking supplies to
Cambria, which he said was for antipersonnel use against humans or
vehicles. (R.842: Trial Tr. VI, PageID.15511.) Croft, Garbin, and fellow
Wolverine Watchman Kaleb Franks constructed an improvised explosive
device using gunpowder and BBs for shrapnel. (R.840: Trial Tr. IV,
PageID.14919; Ex. 97.) This first attempt at detonation failed. (R.843:
Trial Tr. VII, PageID.15703.)
Defense witnesses who attended the Cambria event suggested it
was only “family fun.” (R.844: Trial Tr. VIII, PageID.16021.) But they
admitted they did not know Croft was making explosives and would not
have approved talk about abducting the Governor. (R.844: Trial Tr. VIII,
PageID.16024-25.) As Fox later explained to Chappel before their next
15
FTX, they concealed their plans from attendees not involved in the plot:
“Then we’ll do our night, our mission at night, and don’t let anybody know
what we’re fucking doing. Keep all that shit to ourselves. We’ll just act
like we’re going to fucking get something. They won’t, they won’t know.”
A week after returning from Cambria, Croft messaged Wolverine
Watchmen leader Joe Morrison, “We getting ready to pick it up several
notches, I intend to start at your home state with a 5 state coalition.”
(R.838: Trial Tr. II, PageID.14524; Ex. 114.) He counseled keeping a low
profile, telling Morrison, “I think a withdrawal from public eye. Curtail
ourselves to interior correspondence.” (Id.)
The next day, Fox told the Wisconsin CHS that they were planning
“one night execution in the middle of the fucking night.” (R.841: Trial Tr.
V, PageID. 15097, Ex. 113.) When asked who the target was, Fox and his
girlfriend disclosed, “Gretchen … Who the fuck you think, man?” (Id.) Fox
told the CHS, “us Michigan guys” had identified three possible target
locations. (Id.) He explained, however, that the Capitol was “the one route
we can’t do because it’s a tactical nightmare. It’s a fucking suicide
mission,” unless they had “at least three hundred men.” (Id.) The
16
Governor’s vacation home was Fox’s preferred location, because “our
Governor loves to fucking retreat up to her little fucking palace near
Traverse City,” where “Every fucking holiday she’s up there with family
and stuff on light detail.” (Id.) Fox discussed casing the house, and said
it was important to be “stealthy enough to do the recon without being …
flagged. You got to remember there’s cameras every fucking where.” (Id.)
Fox added, “Got to make an appointment with the baker up north, and
see about getting the ingredients. I would say two, two weeks recon, one
week planning, and then one at execution.” (Id.)
On July 27, 2020, Fox read Chappel in on his plan to reconnoiter
Governor Whitmer’s vacation home near Traverse City. He told Chappel,
“I really feel like snatch and grab is the way to go, bro, I mean.” (R.841:
Trial Tr. V, PageID.15106; Ex. 127.) When Chappel asked, “But is it going
to be catch and release?” Fox replied, “Fuck no, bitch! Once we got her
she's ours, man. She getting charged man. Fuck that. Either she’s going
to prison or she’s getting hung. She’s suffering her fucking fate, dude …
And then after that we're going after the others. This is the example,
bitch. The head's cut off.” (Id.)
17
On August 17, 2020, Fox called Chappel to discuss doing a “recon”
of the Governor’s house. (R.841: Trial Tr. V, PageID.15113.) Chappel did
not want Fox to bring a firearm, and suggested they did not need to
“carry” anything. (Id.; Ex. 158.) Fox said “no, we’re just fucking ‘tourists’
dude.” Id.
f. First reconnaissance of the Governor’s home
On August 29, 2020, Fox, Chappel, and Wolverine Watchman
Daniel Molitor made a three-hour drive north to surveil the Governor’s
home. (R.841: Trial Tr. V, PageID.15117.) On the way, Fox used his cell
phone to look up her address, and told Chappel to put it in his navigation
system: “Gretchen E. Whitmer? She about forty-nine years old? Pop this
address in. Actually, her current address is [REDACTED], Elk Rapids,
Michigan.” (Id. PageID.15118; Ex. 195.)
When they arrived at the destination, Fox took photographs of the
Governor’s lakeside cottage. (R.841: Trial Tr. V, PageID.15122-23; Exs.
178, 181.) Fox told Chappel to drive past it several times and instructed
Molitor to make a slow-motion video recording. (R.841: Trial Tr. V,
PageID.15129; Ex. 199, PageID.15132; Ex.190.) He told him, “Three, two,
one, begin now. Take the whole neighborhood right here. And stop. Make
18
sure you got it.” (Id.) After checking it, he said, “Good job brother. Good
job. That’s a go on save for sure.” (Id.) When the nervous Molitor asked,
“So we getting the fuck out of here now?” Fox told him they were going to
look on the other side of the lake before leaving and agreed “we don’t dare
drive by [the house] again.” (Id.)
On the other side of the lake, they looked for a way to approach the
Governor’s house by boat. (R.841: Trial Tr. V, PageID.15130-31, 15135.)
When Fox spotted a public boat launch, he told Chappel, “Right here.
Hold on. Stop.” (R.841: Trial Tr. V, PageID. 15133; Ex. 197.) They
photographed it, while Fox looked across the lake for the Governor’s
house. (Id. PageID.15130-31; Exs. 191, 192.)
Fox told Chappel and Molitor, “The Lord sends the boat launch.
That’s a perfect fricking spot though, right there. We could pull up,
launch a fucking boat, dude. We could leave the fucking trailer in the
fucking water … Go over and get the bitch, come back, hook the fucking
trailer, pull the boat, drop the boat, take the bitch and go.” (R.841: Trial
Tr. V, PageID. 15133; Ex. 197.) He added, “Fucking perfect. No Coast
Guard! Local police; that’s what we need to look into. Let’s do that before
we go right now.” (Id.)
19
The group then drove to find the local police department and noted
its location. (R.841: Trial Tr. V, PageID.15136; Ex. 193.) During the ride,
Fox told Chappel and Molitor that people would need to choose sides in
the coming conflict:
Basically, what we’re hoping is that when we engage, its

inspirational … for all those fucking fence-sitters … And the
other ones that are doing this with one foot in and one foot
out. Or one foot with the police and one foot with trying to be
constitutionalist. Let’s just be honest, man; if you’re a fucking
patriot, if you’re a militia person, if you’re a three-percenter
in this country, you can’t say that I back the fucking blue. I
understand them, those are everyday men and women, but
they, like us, have a choice to make, okay?
(Id. PageID.15136-37; Ex. 194.)
After the reconnaissance, Fox, Chappel, and Molitor stopped to eat
lunch at a nearby tavern. (Id. PageID.15123.) Fox borrowed a pen and
paper and drew a map of the Governor’s home and its approaches. (R.841:
Trial Tr. V, PageID.15124-25; Ex. 187.) Fox wrote the name of her street
and drew a line indicating the waterborne approach route to the house
from across the lake. (Id. PageID.15126; Ex. 189.) He also noted “Elk
Rapids PD 3 miles, 2.5 min” and “Everything else 20+ miles out” in the
corner of his map. (Id.)
20
For the next two weeks, the conspirators continued to train and get
ready for their FTX at Ty Garbin’s property near Luther, Michigan. On
August 29, 2020, Fox sent Chappel a video of himself practicing rapid
reloading and transition from rifle to pistol. (R.841: Trial Tr. V,
PageID.15139; Ex. 204.) The conspirators sent each other such videos so
they could critique each other’s form and be more prepared for a firefight.
(Id. PageID.15140-41.) On September 4, 2020, Fox messaged Chappel,
“OK, add these to equipment list … Flash bangs … And we need a hood
for our asset. I have flex cuffs.” (R.841: Trial Tr. V, PageID.15141-42; Ex.
208.) Garbin explained that “the asset” was “the governor, Gretchen
Whitmer.” (R.843: Trial Tr. VII, PageID.15556.)
Three days later, Fox stressed the importance of operational
security as they prepared for the Luther FTX. He presciently told
Chappel, “My main concern now is, man, we make the fucking plan, we
get it all fucking fool proof, and before we can even go out fucking execute
it, we’re getting fucking stormed individually by the goddamn feds
because they know every goddamn thing we’ve been doing because we
have been compromised since fucking Ohio.” (R.841: Trial Tr. V,
PageID.15146; Ex. 215.) Fox said he had obtained a new phone and phone
21
number and told Chappel they needed to keep their plan “under wraps.”
He added, “Let’s just keep it between our group.” (Id.) Fox said they
needed to “vet the fuck” out of other attendees at the FTX, because “I’m
not going to let us go down like that, dude. I’m sorry, I’m not. I mean,
we’re patriots. We’re, our goal is to restore the constitutional republic.
You know?” (Id.)
g. Croft, Fox and co-conspirators train in Luther,

Michigan
Meanwhile, Ty Garbin and Kaleb Franks began constructing the
training camp on Garbin’s property in Luther for the FTX. (R.842: Trial
Tr. VI, PageID.15515.) Using a front-end loader, they constructed two
walls of tires filed with sand, backed by a retaining wall, to backstop their
live fire exercises. (Id. PageID.15516-17; Exs. 130, 135, 136.) They then
built wooden frames in front of the backstop, to hang human silhouette
targets. (Id. PageID.15518-19; Ex. 172.)
When the appointed weekend arrived, Croft drove over 11 hours
from Delaware to Luther, Michigan to participate in the FTX. (R.841:
Trial Tr. V, PageID.15183.) With the attendees assembled, they
constructed another “shoot house” from poles and blue tarpaulins. (R.842:
Trial Tr. VI, PageID.15522.) As Fox had recommended, the conspirators

22
did not tell everyone at the FTX the true purpose of the “shoot house,”
which was to “narrow it down as close to possible what the vacation home
might look like on the inside.” (R.842: Trial Tr. VI, PageID.15522; R.841:
Trial Tr. V, PageID.15148.) Fox led video-recorded training exercises
where conspirators practiced breaching the home. (R.842: Trial Tr. VI,
PageID.15521; Ex. 240.) During the FTX, Croft wore a camouflage
uniform with a flag patch favored by revolution-oriented militia groups.
(R.844: Trial Tr. VIII, PageID.15840; Ex. 236.) He trained with a special
shotgun modified with pointed chokes to assist in breaching locked doors.
(Id; R.844: Trial Tr. VIII, PageID.15939; Ex. 337.)
During a break in the training, Croft urged the conspirators, “If
we’re going to attack them, we have to start to attack them.” (R.839: Trial
Tr. III, PageID.14745; Ex. 220.) He encouraged them to believe a small
group could actually take on the government:
I want, I want you guys to understand we are seeing things

we've never seen before. The reason for that is the same
reason you're seeing the shit out of the public that you're
seeing. Fear. If they're afraid and they bleed we can fucking
kill them. So for the first time in life we're seeing fucking fear
out of them and we're doing something right. Look at how
small this group is. When we show them out there you can
win, get out of the way. Get out of the way. You guys have it
in you to do everything we need. You work for a fucking
23
machine for them. Now we're going to start working it for us,
for real.
(Id.)
Croft told an informant he was building a bomb with pennies
attached as “metal projectile[s].” (R.839: Trial Tr. III, PageID.14744; Ex.
219.) When asked about the blast radius, Croft replied, “Probably a good
twenty five feet in circumference. Three hundred and sixty degrees.” (Id.)
He added that the pennies were “going to be very hot when they go out.
Um, getting hit in any place with any one of ’em’s not going to be a good
thing. They’ll go right through your skin.” (Id.)
When Fox had talked about recruiting a “baker” back in June, 2020,
the FBI became concerned that he might obtain explosives from an
unknown source. (R.839: Trial Tr. III, PageID.14628-29.) To minimize
that risk, they had Chappel introduce him to undercover Special Agent
Timothy Bates, who posed as “Red,” an old Army buddy with access to
explosives. (R.844: Trial Tr. VIII, PageID.15829-30, 15836; R.839: Trial
Tr. III, PageID.14628-30.) Bates attended the Luther FTX and told Fox
and Croft he had a video demonstrating what C-4 explosive could do.
(R.844: Trial Tr. VIII, PageID.15834-85.)
24
h. Second reconnaissance of the Governor’s home
The night of September 12, 2020, Fox readied others for a nighttime
reconnaissance of the Governor’s house. (R.840: Trial Tr. IV,
PageID.14930; Ex. 223.) He explained his plan to kidnap the Governor,
and invited others including undercover agent Schweers (“Mark”) to
watch Red’s video:
Fox: We already put fucking eyes on her cottage up there.
Null: Really?
Fox: And, we're going to take another look tonight. Get eyes on it
at nighttime. We are going to do two vehicles. If you guys are
down, you want to roll? [UI] two. We have a menu of sorts to
watch real quick. If you're down with the cause, this is
something that we are going to be collectively raising money
to go live, so. We're going to need some boom-boom. So, the
[UI] guy is a baker. He didn't bring anything because its deer
season and shit, [UI] couldn't come through with all the shit.
He brought a video and shit. Big dump, so. Basically, a video
of a bunch of shit being blown up, and it's basically a menu of
what we can buy.
(Id.)
Fox explained the plan for that evening, and for the abduction itself:
Fox: So, gather the few of us [UI] that we are taking a ride tonight.
We are going to leave here probably around eight o'clock, here
in a couple of hours. Go get dinner and stuff. But we're going
to go, we're going to take comms, two new vehicles, we're going
to go put eyes on it again tonight, get another look at it from
25
nighttime, and then we're going to mark a couple of things at

night, because when we went up there at first,
Caserta: Okay.
Fox: It’s fucking perfect dude. There's a goddamn public boat

launch on the other side of the lake from her, and its literally
concealed by fucking trees, and then it's like, it's just, it's too
fucking perfect man it really is. [UI] Take her on Birch Lake.
Null: Mmh hmm.
Fox: Fucking shoot it out, there's one bridge going out of the
fucking city.
Null: Mmh hmm.
Fox: Blow that fucking bridge, that little PD can't get there, the
closest police station is like twenty miles away on all fucking
sides. That gives us a twenty-minute fucking time frame. [UI]
Null: How fucking-
Fox: [UI] Take her ass out to fucking Lake Michigan. Drop her
fucking motor and leave the bitch stranded. Send the fucking
message. I figure that way, it's like, you know, we're not out
to kill anybody but we're at the same time we're doing
something very fucking very bold and brazen and it's going to
send a fucking message, dude. It's going to let them know,
hey-
Null: To be honest with you, you'd be better off shooting her. I'm
telling you, you'll get twenty-five. You won't get, you won't get
two life sentences!
Fox: That's the thing though, that's the fucking thing, that's the
fucking thing.
26
Null: I got a brother-
Fox: The whole point of this is to send a message, because it doesn't

matter. If we, if we cut her out that don't matter. There’s still
the puppet-masters above. The whole point is this, we're,
we're sending the fucking message to them. “Hey. If we can
get her, we can get you.”
(Id.)
Fox told the others the vacation home was their best chance to
abduct the Governor: “This is her fucking private residence … No matter
what, there’s a chance that we, that that’s the only place that we can take
her. That’s the only place [UI].” (Id.) He then invited them to view Red’s
explosives demonstration: “Let’s go watch this menu video, yeah? Let’s
watch some shit blow up. Let’s go.” (Id.)
Undercover agent Bates (“Red”) showed Fox, Croft, and others a
video of a Chevrolet Tahoe SUV being blown up with high explosives.
(R.844: Trial Tr. VIII, PageID.15835-36; Exs. 224, 225.) Bates and Garbin
said Fox and Croft were excited after seeing it. (Id. PageID.15836; R.842:
Trial Tr. VI, PageID.15523.) Fox asked Bates, “let me see that again,”
and said, “what, uh, kind of price tag are we looking at?” (R.844: Trial Tr.
VIII, PageID. 15838; Ex. 226.) Bates told him, “depends on how big you
want it,” and Fox asked, “say we pull together like five G’s, what would
27
that, like, get us? … Can we dabble in a couple of options, like?” (Id.) Fox
told the group, “so I guess we need to figure out what we would, our
objective would be for it, right?” and said to Bates, “you’re coming with
us tonight, right?” When Bates asked where they were going, Fox replied,
“we’re just taking a ride, dude.” (Id.)
Before the conspirators left for the nighttime surveillance, Fox told
them to change from military garb to civilian clothing so they would be
less conspicuous. (R.844: Trial Tr. VIII, PageID.15839) Croft changed out
of his militia uniform before departing for Elk Rapids. (Id. PageID.15840-
41.) Croft told Chappel, “we need the target’s habits,” (R.841: Trial Tr. V,
PageID.15154, 58; Ex. 250), and asked Franks if he already knew where
they were going. (R.843: Trial Tr. VII, PageID.15714.) When Franks said
he didn’t, Croft told him he was “going to get eyes on the bridge.” (Id.)
The group traveled to Elk Rapids in three cars. (R.841: Trial Tr. V,
PageID.15149.) On the way, Fox told Bates they were going to the
Michigan Governor’s vacation home to conduct surveillance in
preparation for a kidnapping. (R.844: Trial Tr. VIII, PageID.15841.) The
car with Fox, Croft, Chappel, and Bates stopped at a bridge on Michigan
Highway 31, where Fox and Bates got out to take pictures under the
28
structure and discussed the placement of explosives to detonate the
bridge. (R.844: Trial Tr. VIII, PageID. 15843-45; Ex. 232, 230; R.841:
Trial Tr. V, PageID.15842; Ex. 233.) Fox showed the photo he took to
Chappel when he returned to the car. (R.841: Trial Tr. V, PageID.15150.)
The first car, containing Fox, Croft, Chappel, and Bates, drove to
the boat launch on Birch Lake with a night vision scope. (R.841: Trial Tr.
V, PageID.15151-52.) The second car, containing Garbin, Franks, and
Wisconsin resident Brian Higgins, drove to the Governor’s street on the
other side of the lake with an infrared flashlight visible only with the
scope. (R.841: Trial Tr. V, PageID.15151-52.) Garbin, Franks, and
Higgins recorded themselves searching for the Governor’s address on an
in-car dash camera, for reference in any future surveillance mission.
(R.842: Trial Tr. VI, PageID.15527; Exs. 242, 243.) The third car,
containing Wolverine Watchmen William and Michael Null, was
assigned to drive around the area and look for law enforcement. (R.841:
Trial Tr. V, PageID.15153-54; R.842: Trial Tr. VI, PageID.15526.)
When the parties were in place, Fox, Croft, Bates, and Chappel
observed Garbin and Franks signaling from the Governor’s street across
the lake. (R.841: Trial Tr. V, PageID.15152.) In a recorded conversation
29
with Bates, Croft pointed out the location of the Governor’s house: “But
based on what the map looks like, she should be right at about around
those three lights dead ahead, based on what the map looks like … Yeah,
it, it, it actually ends over here. But her house by the, by the, you know,
the address, should be either in between those three dots, or that orange
light to your left.” (R.841: Trial Tr. V, PageID.15152-53; Ex. 248.)
After leaving the immediate area, the conspirators regrouped at a
nearby gas station. (R.842: Trial Tr. VI, PageID.15529.) Garbin told Fox
and Croft they had been unable to find the exact location of the
Governor’s house. (Id.) Fox thought it would be too dangerous to try
again, and said, “Nope, We’re done. We can’t. Any more would be
compromising, dude. The neighbors will start [UI].” (Id. PageID.15530;
Ex. 244.) Croft viewed their inability to find the address as confirmation
that she lived there, and told the others, “I would say if they’re masking
the address, it’s definitely her.” (Id.)
The conspirators left the area on Highway 31, along a narrow strip
of land separating Birch Lake from Lake Michigan. (R.844: Trial Tr. VIII,
PageID.15849; Ex. 238.) Croft said, “That’s the land hop we’re talking
about, right here.” (Id.; Ex. 245.)
30
i. The conspirators plan the abduction, order explosives
The next morning (September 13, 2020), the conspirators gathered
at Garbin’s camp in Luther to discuss the previous night’s surveillance.
(R.843: Trial Tr. VII, PageID.15553.) Croft opined that the best plan
would be to take the Governor from Birch Lake to Lake Michigan. (R.843:
Trial Tr. VII, PageID.15554; R.841: Trial Tr. V, PageID.15158.) He said,
“Water, listen, water’s our baby. You know man, once you get to the
water, it’s a whole different ball game.” He added, “The big lake is the
one.” (Id.; Ex. 251.) Fox said, “That’s what I’m saying. She has to be out
of the lake. Birch Lake,” and noted there was easy access to Lake
Michigan “Just … down the street then.” Croft agreed, “Yeah, literally.
The big lake is our best option.” (Id.)
Later that day, Croft, Fox, Garbin, Franks, Chappel, and Bates
discussed the possibility that Governor Whitmer would have a U.S.
Secret Service detail if she were appointed to a cabinet position after the
presidential election. (R.843: Trial Tr. VII, PageID.15555.) Croft told the
others he had encountered diplomatic convoys on the road while driving
his truck, and said they could use his 37-millimiter grenade launcher to
engage her security detail. (R.841: Trial Tr. V, PageID.15159; Ex. 254;
31
R.843 PageID.15555-56.) When Franks said he thought they’d get caught
like the Boston Marathon bombers, Croft replied, “That’s something you
need to think about, then. If we’re going to carry out an operation of this
magnitude, you are going to have to walk away from life.” (R.843: Trial
Tr. VII, PageID.15751; R.843: Trial Tr. VII, PageID.15727-28; Ex. 257.)
Fox and Bates finally settled on a price of $4,000 for explosives, plus
$600 for “flash bangs,” smaller devices that could be used to stun law
enforcement personnel. (R.844: Trial Tr. VIII, PageID.15875-76;
PageID.15852; Ex. 258.) Fox told the assembled conspirators they needed
to come up with $4,000, and needed to be ready to abduct the Governor
on short notice if she came to the house. (R.843: Trial Tr. VII,
PageID.15556-57; R.843: Trial Tr. VII, PageID.15723-24.) He said:
So, a lot of you went with us last night. You kind of know,
what, like, you know, what our intentions are. It comes with
a price tag. Now there’s shit we got to do. To be able to do to
them, so, things to do, shit we want to do, we can do easily, for
like four grand. It’s our job now. We got to pool this money
together, I want to try to raise it in the next month because
it’s something we’ll be sitting on. You never know, if we want
to do this, it’s going to be, being ready, but it’s going to be
opportunistic. Like it’s going to be, when the, the asset arises
there, boom, we got to go. Like that’s another key reason why
we need fucking, like, local intel. We need to get in with the
locals a little bit. We’re going to have to keep doing recon, kind
of get in. We, we, our first trip there, we come across as just
32
some guys looking for some investment properties. We really

like the area, you know?
(R.841: Trial Tr. V, PageID.15161; Ex. 264.)
j. Croft successfully detonates a bomb
Later on September 13, 2020, Croft detonated an improvised
explosive device in the forest near Garbin’s property. (R.843: Trial Tr.
VII, PageID.15728.) Croft explained that he had made the device from a
“mortar” firework, with pennies for shrapnel. (Id.) He surrounded the
device with human silhouette targets to see what the shrapnel would do.
(Id. PageID.15729.)
Just before the explosion, Croft’s partner Chasity Knight told an
informant that Croft was “Up there. They’re getting ready to detonate.”
(R.839: Trial Tr. III, PageID.14746; Ex. 222.) When asked, “Did Adam go
up there too?” Knight replied, “Yeah. Yeah he did.” (Id.) Knight saw Croft
go over the hill where the device was placed, and then heard “a big boom.”
(R.841: Trial Tr. V, PageID.15184.) The informant’s recording device
captured an unidentified voice shouting, “Fire in the hole!” followed by
the sound of the explosion. (Ex. 222.)
33
k. Fox plans training for “asset extraction”
After the Luther FTX, Fox encouraged the other Michigan
conspirators to continue training and preparing. On September 19, 2020,
Fox proposed running an “asset extraction” drill in the basement of the
Vac Shack building. (R.843: Trial Tr. VII, PageID.15557.) In an encrypted
chat, he said, “I’m gonna get the basement of this store cleared and if
anyone wants we can do a CQC [close quarters combat] training here
clearing this big ass building upstairs and down. Work on acquiring an
asset and detaining for extraction?? … We’ll need all the reps we can get,
have 6 weeks til election and one week is ftx so let’s utilize these 5
weekend best we can.” (Id. PageID.15558; Ex. 443.)
On September 30, 2020, Fox called Chappel and said, “I’ll get the
basement all ready.” (R.841: Trial Tr. V, PageID.15168; Ex. 278.) He said
he could black out some rooms but not others, so they could practice
“transition[ing] from night vision to off or whatever, you know.” (Id.) He
added, “Whatever we want to do we can run them through all the fucking
scenarios. I got some regular fucking handcuffs now so we don’t want to
waste flex cuffs so we can practice detaining somebody.” (Id.) Chappel
explained that using handcuffs would allow Fox to practice “obtaining the
34
asset and extracting out” without using up their supplies of flex cuffs,
which could only be used once. (R.841: Trial Tr. V, PageID.15168.)
In the same call, Fox proposed using “tasers, stun guns, something
like that” to “get the jump on a light, light security detail … knock them
out, fucking be gone.” But, he said, “[I]f they’re a six to eight fucking
security detail, we’re just going to have to go out and get bloody … I mean,
there’s no way around it. But at this point, fuck dude, they killed so many
people. We shouldn’t feel bad about nothing.” (Ex. 278.) Fox told Chappel
on the phone that day that everyone who had agreed to buy explosives
from “Red” had better come up with a contribution: “They know that the
fucking shit was going to be about four g’s, so they better come
appropriately.” (R.844: Trial Tr. VIII, PageID.15838; Ex. 277.) As
directed by the FBI, Chappel told Fox they could meet “Red” in Ypsilanti,
Michigan on October 7, 2020 to make a down payment on the explosives.
(R.841: Trial Tr. V, PageID.15166-68.)
On October 2, 2020, Fox sent Garbin and Chappel a video of himself
with a taser, which he said could be used to subdue someone. (R.843:
Trial Tr. VII, PageID.15558; R.841: Trial Tr. V, PageID.15169-70; Ex.
35
283.) He told Garbin they could use zip ties to restrain the Governor.
(R.843: Trial Tr. VII, PageID.15558.)
As October 7, 2020 approached, Fox told Chappel, “Like, I’m
already putting in, I’ll put in way more than my share, ’cause I don’t know
who the fuck is going to be there. But, I mean, I’ll try, I’ll try to put that
four or five hundred on the seventh, and then I’ll try coming back another
couple three hundred.” (R.844: Trial Tr. VIII, PageID.15838; Ex. 277.)
l. Arrest of the conspirators; execution of search

warrants
When Fox, Garbin, and Franks traveled to Ypsilanti, they were
arrested by an FBI tactical team. (R.838: Trial Tr. II, PageID.14550;
R.844: Trial Tr. VIII, PageID.15917.) Agents searched Fox’s person and
seized his iPhone (R.844: Trial Tr. VIII, PageID.15917; Ex. 365); his stun
gun and sheath (Id. PageID.15918; Ex. 366); and $276.17 in U.S.
currency. (Id.; Ex. 433.) Fox later told Garbin in jail that he had brought
“roughly $300 in cash as a good faith payment towards the explosive
device, and “had an additional $600 in a plastic case located at his home.”
(R.843: Trial Tr. VII, PageID.15559.)
Agents searched the Vac Shack and found the additional $600 in
U.S. currency. (R.843: Trial Tr. VII, PageID.15680; Ex. 375.) Among
36
other things, they also found a Taurus 9mm semiautomatic pistol, a
loaded Palmetto 5.56mm semiautomatic rifle, a vest carrier for body
armor plates with attached radio, loaded rifle magazines, a medical kit,
a tactical helmet, and smoke cannisters. (R.843: Trial Tr. VII,
PageID.15675-81; Exs. 367, 368, 371, 372, 373, 374, 383.) Agents also
found a camouflage backpack containing duct tape, a knife, rope, zip ties,
and flex cuffs. (R.843: Trial Tr. VII, PageID.15682-83; Exs. 379, 380.)
Agents found Fox’s handwritten notes. (R.844: Trial Tr. VIII,
PageID.15967.) On one page, he had written “Residence MI/TC.
Timing/consistency. Sensors/security. Driveway, barriers, guard, et
cetera. Cameras. Poss get layout. Inside detail.” (Id.; Ex. 377.1) The FBI
assessed MI/TC to stand for “Mackinac Island/Traverse City,” the
location of the Governor’s official residence, and the nearest large city to
her vacation home. (Id. PageID.15968.) On the next page, Fox had
written, “hardware store, tear gas, gas masks, smoke bombs, tasers/stun
guns, armor, lighting/multicolor.” (Id.) Agents analyzed the contents of
Fox’s iPhone, and found maps of the Birch Lake area, including a zoomed-
in view of the Governor’s street. (Id.; PageID.15968-70; Exs. 418, 419.)
37
The next day, Croft was arrested on the highway in New Jersey.
(R.843: Trial Tr. VII, PageID.15662-63.) Agents found, among other
things, a loaded Glock 10mm semiautomatic pistol with an extended
magazine, and the three-cornered “revolutionary” hat Croft habitually
wore. (Id.; Exs. 336, 350-356.)
At Croft’s home, agents found a red duffel bag containing hobby
fuse, two cannisters of smokeless powder, three cannisters of smokeless
propellant, one “Dr. Atomic’s Exploding Target,” a jar containing 6,000
copper-coated steel BBs, duct tape, electrical tape, a funnel, travel-sized
silicon containers, and party balloons. (R.844: Trial Tr. VIII,
PageID.15933-38.) Croft suggested at trial that the red bag had been
planted in his garage by a government informant. (R.844: Trial Tr. VIII,
PageID.15953, 16134, 16251.) But Croft was captured on store
surveillance photos purchasing all of the items in the bag at a
Pennsylvania Wal Mart store in July 2020. (R.845: Trial Tr. IX,
PageID.16100; Ex. 602.) His three-cornered hat and III% hand tattoo
were clearly visible in the store security images. (Id. PageID.16103-05.)
Agents also found Croft’s double-barreled 12-gauge breaching
shotgun (R.844: Trial Tr. VIII, PageID.15932; Ex. 337), commercial
38
fireworks, and the receipt for Croft’s purchase of those fireworks with
$353 in cash. (R.839: Trial Tr. III, PageID.14748; Ex. 331.) An FBI
Special Agent Bomb Technician went to the same fireworks outlet in
Wilmington, Delaware and purchased the same items, which he then
transported to the FBI explosives laboratory in Quantico, Virginia for
analysis. (Id. PageID. 14714, 14749-50.)
The same day, a separate team of agents searched the camp in
Luther, Michigan, where the conspirators held their final training
exercise. (R.844: Trial Tr. VIII, PageID.15921-22.) Agents found a mortar
for firing the same type of fireworks found at Croft’s house. (Id.
PageID.15923; Ex. 298.) In the woods near Ty Garbin’s camp, they found
a burned area with scattered metal objects, staples, and cardboard pieces
with tape still attached. (Id., PageID.15924-26; Exs. 291-94.) The metal
objects included charred pennies. (Id. PageID.15927.)
m. Croft’s bomb evidence analyzed; device not registered
An explosives and hazardous device examiner from the FBI
laboratory in Quantico, Virginia examined the evidence from the post-
blast scene at Luther, as well as the items seized from Croft’s home, and
the sample unexploded firework matching Croft’s receipt. (R.844: Trial
39
Tr. VIII, PageID.15977-80.) She determined that the items from Croft’s
house could be used to make an improvised explosive device, or “IED.”
(Id. PageID.15980-85.) She explained that bomb makers often add metal
objects for fragmentation, including BBs, nails, screws, ball bearings or
pennies to increase the effect of the device. (Id.) In her expert opinion,
the commercial mortar round with added fragmentation had the
necessary weapon characteristics to be considered a “destructive device,”
as charged in the indictment. (Id. PageID.15986.)
A records specialist from the Bureau of Alcohol, Tobacco, Firearms
and Explosives (ATF) explained that destructive devices can only be
legally possessed if they are registered in the National Firearms
Registration and Transfer Record (“NFRTR”). (R.842: Trial Tr. VI,
PageID.15477-81.) He searched the NFRTR and determined that Croft
had never registered the destructive device from Luther, or anything
else. (Id.)
2. Proceedings in District Court
a. Preliminary matters and first trial
The defendants were arraigned in Grand Rapids, Michigan, in
December 2020 and January 2021 respectively, and detained pending
40
trial. (R.103: Minutes of Fox Arraignment, PageID.611; R.45: Order of
Detention, PageID.459; R.131: Minutes of Croft Arraignment,
PageID.714; R.135: Order of Detention, PageID.718.) In January 2021,
Ty Garbin pled guilty and agreed to testify truthfully against his co-
conspirators. (R.143: Minutes of Change of Plea, PageID.759; R.142: Plea
Agreement, PageID.742.) Kaleb Franks followed suit in February 2022.
(R.447: Minutes of Change of Plea, PageID.3135; R.445: Plea Agreement,
PageID.3115.) After a 20-day trial in the spring of 2020, the jury
acquitted co-defendants Brandon Caserta and Daniel Harris, and
deadlocked as to the charges against Fox and Croft. (R.622: Declaration
of Mistrial, PageID.6029.)
b. Retrial, jury selection
The retrial of Fox and Croft commenced in August 2022. (R.704:
Minutes of Jury Trial, PageID.8949; R.837: Trial TR Vol 1,
PageID.14153.) Among those called to serve was Juror No. 13, in seat
number 6. (Id. PageID.14374.) Juror No. 13 affirmed under oath that
they could be fair and impartial. (Id. PageID.14375.) Juror No. 13 advised
that they rarely listened to or read the news and had just heard about
the case “when it started two years ago and that was about it.” (Id.) Juror
41
No. 13 responded that they had not formed any impressions based on that
limited exposure, and agreed that if they had any political views, they
could set them aside. (Id. PageID.14375-76.)
The morning of August 11, 2022, well after the trial had begun,
Croft’s attorney said he received a call from a person later identified as
“Person #1” (R.745: Motion for New Trial, PageID.9727; R.848: Sealed
TR, PageID.16307.) According to Croft’s attorney, Juror No. 13 told
Person #1 at work that they “had already determined that the defendants
were guilty, and [Juror 13] was going to hang them.” (Id.) Croft’s attorney
demanded to question Juror No. 13, telling the court the juror “has
expressed an intention to subvert the process here.” (Id. PageID.16309-
10.) The court corrected, “No. [The juror] has not. A report from a co-
worker has indicated an intent before [they] got here to do something like
that. That’s all we know right now.” (Id. PageID.16310.) The court
overruled the defendants’ objection to proceeding with the trial and took
Person #1’s phone number. (Id. PageID.16310-11.)
At around 1:00 pm that day, the court called a chambers conference
to update the parties about its inquiry. (R.856: TR, PageID.16542 et seq.)
In an interview with the court’s jury clerk, Person #1 admitted they had
42
not actually talked to the juror. (Id. PageID.16547.) They further
admitted they “did not know one way or the other whether this is actually
an individual on the jury,” and said they were actually passing along
words reported by a co-worker who “does not want to be identified.” (Id.
PageID.16547-48.) The court advised the parties that it intended to meet
with Juror No. 13 by the end of the next day, and to proceed with trial in
the meantime. (Id. at PageID.16548.)
Fox’s attorney and government counsel concurred with that
approach, but Croft’s counsel demanded to question Juror No. 13 and the
rest of the panel. (Id. at PageID.16549.) The court pointed out that
because the juror was sworn, and therefore subject to penalties for
perjury, there was reason to trust them “unless and until we have
something more than double hearsay” to go on. (Id. PageID.16550-51.)
The evening of August 11, 2022, Croft’s counsel filed a brief on the
public docket disclosing the in-chambers proceedings of the court, and
suggesting the jury was “tainted.” (R.707: Brief, PageID.8959 et seq.) As
the court later noted, the brief was at variance with the facts. (R.711:
Order, PageID.8982.) For example, Croft’s counsel wrote, “it was reported
that the juror stated that the juror had already decided the case,”
43
omitting that caller had not actually spoken to the juror. (R.707: Brief,
PageID. 8959.) The brief also argued a Remmer hearing was required
because “a credible claim regarding jury misconduct ha[d] been presented
to the court,” when the court had not found the claim credible. (Id.
PageID.8963.)
The court chided Croft’s counsel, who had previously acknowledged
the sensitivity of the matter, for a “public filing [that] created the risk of
distorted publicity potentially affecting the fairness of the proceeding.”
(R.711: Restricted Access Order, PageID.8982-83.) By the next morning,
news media had exploded with misleading stories about a “rogue juror.”1
The morning of August 12, 2022, the court wrote it did “not believe
[Croft’s counsel’s] brief accurately and completely recites either the
available information, the applicable law, or the court’s plan of
addressing the situation consistent with applicable law.” (R.709:
Restricted Access Order, PageID.8976.) The court ordered the parties to
file future briefings on the issue under restricted access, and refrain from
1 See, e.g., Tresa Baldas & Arpan Lobo, Alleged rogue juror under
investigation in Whitmer kidnapping retrial, Detroit Free Press, Aug.
12, 2022, available at www.freep.com/story/news/local/michigan/2022/
08/12/whitmer-kidnap-retrial-juror-misconduct investigation/
10306802002/.
44
making public statements on the matter until the jury was discharged.
(Id. PageID.8976-77.)
During the midday break that day, the court met with Juror No. 13
in chambers. (R.849: Sealed TR.) After describing the statements
attributed to the juror, the court asked, “I can see the puzzled look on
your face, and so the first question is, do you remember making
statements like that at any time?” to which the juror replied, “None.” (Id.
PageID.16314-15.) When the court asked if the juror had talked to co-
workers about their jury service, Juror No. 13 responded, “No. I just said
I have jury duty.” (Id. at 16316.) The juror didn’t even know what the
case was until coming in on the first day of trial. (Id.) The juror
acknowledged having heard about the case a few years ago, but did not
remember saying anything about it then, either. (Id. at 16317.) The juror
had no doubts about the juror’s ability to be fair and confirmed
understanding the court’s admonition not to discuss the inquiry with the
other jurors. (Id. PageID.16317-18.)
On August 14, 2022, the court summarized its findings and plan for
proceeding, which was to (1) continue with trial as the investigation
proceeded; (2) provide the parties a transcript of its interview with the
45
juror; (3) conduct no interviews of other jurors unless an evidentiary basis
later supported that step; and (4) ensure a full record of the proceedings
would be kept, but maintained on the non-public docket until the jury
was discharged. (R.711: Restricted Access Order, PageID.8985.) As the
court noted, this would minimize disruption to the trial, ensure the
parties did not interfere with sitting jurors, and avoid the risk that the
inquiry itself would “sour the juror on one side or the other.” (Id.)
The court rejected a request from Croft’s counsel to voir dire all the
jurors, opining that “Asking every juror whether a particular juror in the
box was breaking the rules—in the absence of any information at all
suggesting that—would needlessly plant suspicion and create the risk of
dissention, potentially making it impossible to continue with the group
as empaneled.” (Id. PageID. 8987.)
The court found Juror No. 13’s responses credible and observed that
the juror’s behavior during the proceedings was inconsistent with the
unsubstantiated claims of bias. (Id.) The court summarized,
Against these observations, the subject Juror’s statements

under oath during voir dire, and the Juror’s responses during
the in chambers interview, the court has only the double
hearsay report of an individual given to [Croft’s counsel], and
the partially consistent report later given to the jury clerk.
But the reporting individual did not hear any statements from
46
the subject Juror and did not even know personally if the
Juror was on the case. And the coworker who allegedly did
hear the remarks is unidentified and unwilling to be
identified or to speak with the courts jury clerk. Nor would
the reporting caller identify this person.
(Id. PageID.8988.)
On September 6, 2022, the defendants revisited the issue in a joint
motion supported by the affidavit of a private investigator. (R.745:
Motion for New Trial and for Remmer Hearing; R.745-1: Declaration of
Gary Gaudard.) The investigator averred that he had interviewed Person
#1, who again admitted “that he did not hear Juror #13 say these things
firsthand,” but “said that he knows from working with Juror #13 that he
is ‘far-left leaning’ and felt that Juror #13 obviously had his mind made
up.” (Id. PageID.9752-53.) Person #1 “declined to give [the investigator]
the names of anyone who heard this firsthand,” and volunteered that
“people are also being protected against actions by BLM or similar
organizations if their names get out.” (Id. PageID.9753.)
Mr. Gaudard stated he next contacted “Person #2,” another
employee at Juror No. 13’s workplace. (Id. PageID.9753-54.) Like Person
#1, Person #2 claimed “Juror #13 had been saying things about being on
the Whitmer jury,” but later conceded that “they did not hear Juror #13
47
say this firsthand but that a friend had heard it.” (Id. PageID.9754.) Like
Person #1, Person #2 also declined to identify the supposed source. (Id.)
The affiant stated he was able to identify the source as “Person #3”
through “independent investigative means.” (Id. PageID.9754-55.) When
accosted in the parking lot outside his work, Person #3 told the
investigator they did not know anything and declined an offer to discuss
the matter offsite. (Id. PageID.9755-56.)
In rejecting the renewed motion for a Remmer hearing, the court
pointed out that “Defendants misunderstand the threshold requirement
necessary to convene a Remmer hearing. While a ‘colorable claim’ is
sufficient, it must be one supported by ‘credible evidence.’” (R.779: Order
Denying Motion for New Trial, PageID.10226; citing United States v.
Bailey, 2022 WL 2444930, at *8 (6th Cir. July 5, 2022)). The defendants’
private investigation moreover demonstrated that they were hardly
hampered in pursuing evidence for their allegations by the court’s refusal
to convene such a hearing. (Id.)
The court observed the defendants’ evidence amounted to two
double-hearsay declarants reporting the supposed statement of a third
person who refused to stand by the statement himself. (Id. PageID.10226-
48
27.) The court rejected the contention that Person #1’s ability to describe
the juror gave his story “indicia of reliability.” (Id. at PageID.10227.) On
the contrary, the court noted that Person #1 had called the juror “far-left
leaning,” and brought up “BLM retaliation” of his own accord. (Id. at
10227-28.) The court reasoned that “in politically charged cases such as
this, the court must consider the possibility that reporting third parties
might have their own agenda. Disqualifying a sworn juror based on what
amounts to an anonymous tip would disregard that risk.” (Id. at
PageID.10228.)
c. Kaleb Franks Cross-Examination
Kaleb Franks took the stand on August 17, 2020, and corroborated
details earlier provided by Garbin and Chappel. (R.843: Trial Tr. VII,
PageID.15694-15787.) The defendants claim they were denied due
process when the district court imposed a time limit on his cross-
examination. (Doc. 26, Def's Br., Page 51; Doc. 28, Def’s Br., Page 75.)
Appellant Croft further claims the district court imposed that limit
“without warning.” (Doc. 28, Def’s Br., Page 76.)
The record actually reflects the court had been repeatedly warning
defense counsel since the outset of the proceedings. By the second day of
49
witness testimony (August 11, 2022), the court was already concerned
the trial would exceed the two weeks the jury was told to expect. In a
chambers conference with all counsel, the court expressed surprise that
the questioning wasn’t more focused, where counsel had already
examined the same witnesses in the first trial:
In terms of where we are in the process, and I know everybody

has to have a fair opportunity to go ahead and question, but
there is certainly redundancy on topics in the Defense cross.
Maybe that’s inevitable. I anticipated less of it, and actually,
when we had four Defendants I think there was less of it, but
I don’t know how that’s affecting the overall estimates of
timing or how important any of the duplication is from the
Defense perspective. But you know, watch the jury and see
when they are checking out and when they are not, because
the more duplication there is we not only extend the time, but
we bore them to death.
(R.856: Sealed Tr. of Chambers Hearing, PageID.16544.)
By the next day (Friday, August 12), the court warned the parties
that it would “think hard over the weekend about time limits, because
it’s getting, in my view, ridiculous.” (R.840: Trial Tr. IV, PageID.15020.)
The court noted the defendants’ cross-examinations were long, cluttered
with non-germane inquiries, and causing the jury to “check out.” (Id.) The
court specifically referenced “Judge Bertelsman’s rule of proportionality”
(limiting cross-examination to the same duration as direct) as a remedy
50
under consideration, referring counsel to United States v. Reaves, 636 F.
Supp. 1575 (E.D. Ky. 1986). (Id.)
Two days later (August 14), the court issued an order regarding the
defendants’ request for a Remmer hearing. (R.711: Restricted Access
Order, PageID.8979.) The court observed that jurors appeared to have
“checked out” during “needlessly long and repetitive lines of cross
examination.” (Id. at 8988.) The court added it was still considering
Judge Bertelsman’s rule, “But the Court has decided not to impose it by
Order—at least not yet—because defense counsel has recently observed
and at least tacitly endorsed the underlying rationale in a public tweet.”
(Id.) The court attached a screenshot from Croft’s counsel’s Twitter
account, where he said: “Truth. Cutting out the cross that just feels good
but doesn’t move the story is hard.” (Id.) Croft’s counsel acknowledged he
had received the court’s warning. (R.745: Croft Mot. for New Trial,
PageID.9733.)
The next day (August 15, 2022), the court again took defense
counsel to task for “go[ing] through the entire litany of things the jury
has already heard” from a witness, and reminded Fox’s counsel that those
51
facts were already in evidence for him to argue. (R.841: Trial Tr. V,
PageID.15056-57.)
Notwithstanding the warning, Fox’s attorney continued in the same
manner with another witness the following day (August 16). The court
reminded him he already had “all the building blocks” to make his
argument, warned him about unnecessary repetition, and asked him to
“move on to something else that’s new and different.” The court
cautioned, “I am continuing to think about Judge Bertelsman.” (R.842:
Trial Tr. VI, PageID.15313-17.)
After giving counsel leeway to continue, the Court eventually
remarked, “We’re already 30 minutes beyond the Bertelsman rule and
we haven’t even heard from Mr. Croft yet. So I understand that it’s a
presumptive rule and I haven’t imposed it, but you know, it’s not that you
don’t have good points, it’s just that I think they got lost in a lot of stuff
that’s hard to follow. So you know, words to consider, but it’s obviously
up to you.” (Id. PageID.15353.) By the time Kaleb Franks finally testified
the next day, the court had warned counsel it might impose time limits
on half a dozen occasions.
52
Franks’ testimony covered much of the same ground as the
government’s other cooperating witness, Ty Garbin, who had just been
excused. (R.779: Order Denying Mot. for New Trial, PageID.10232.) The
court observed that the cross-examination of Garbin had been
argumentative, repetitive, and dwelled on undisputed and tangential
issues. (Id. PageID.10231.) In fact, the cross-examinations took three
times as long as the direct examination. (Id. PageID.10232.) The Court
noted that “by the end of the defense cross-examination … the jury had
begun to check out.” (Id.)
The court recalled that in the first trial, four criminal defense
attorneys had managed to effectively cross-examine Franks in about the
same total time as the government’s direct. (R.779: Order Denying Mot.
for New Trial, PageID.10233, 10238.) Accordingly, the court concluded
that was enough time for just two defense attorneys, especially since they
had examined Franks before on the same facts and knew the terrain. (Id.
PageID.10233.)
Defense counsel suggested through cross-examination that their
clients were just “LARPing” (live action role-playing) (Id. PageID.15756);
dressed like “extras from a movie” (Id. PageID.15757-58); and
53
characterized Croft’s tricorn hat as a “pirate” costume. (Id.
PageID.15635.) Both counsel questioned why, if the plot was serious,
Franks would continue to participate when an unknown outsider (Brian
Higgins) joined the nighttime surveillance. (Id. PageID.15749-50, 15772.)
Both counsel highlighted all of the times their clients were absent
from particular meetings, trainings, or online discussion groups;
including the hike in the woods where Franks said he and Garbin had
committed to the plot. (Id. PageID.15746, 15747, 15782-84.) Croft’s
counsel elicited agreement that that Franks didn’t know Croft
personally. (Id. PageID.15784.)
Fox’s counsel explored whether Chappel had “fueled Fox’s fire” (Id.
PageID.15741-44), while Croft’s counsel suggested that another
government informant was calling the shots. (Id. PageID.15770.) Both
counsel explored supposed inconsistencies in exactly how many times the
conspirators drove down the Governor’s street, who held the flashlights,
and other details. (Id. 15762-63, 15773-75.) Croft’s attorney questioned
Franks as to why conversations he reported having with Croft were not
captured on tape. (Id. PageID.15780.)
54
Both counsel also had time to extensively probe Franks’ motive,
potential bias, and credibility. For instance, both explored why Franks
lied to the FBI about his involvement when he was first arrested. (Id.
PageID.15741, 15787.) Both counsel questioned Franks’ admission that
he was motivated in part by suicidal thoughts. (Id. PageID.15742, 15751,
15757, 15777.) Both counsel pursued Franks about his use of Suboxone
while in jail. (Id. PageID.15753, 15766) Both pressed Franks on his
incentive to earn a sentence reduction by testifying and suggested that
“truthful” testimony was whatever the government wanted to hear. (Id.
PageID.15759, 15764-65, 15786.) Croft’s counsel spent time arguing with
Franks about how long his sentence might be if he did not cooperate, even
though Fox’s attorney had covered the same ground. (Id. PageID.15618-
69.) When the court finally suggested counsel might not want to use his
time on argumentative and redundant questions, Croft’s counsel
snapped, “It is exactly how I want to use my time.” (Id. PageID.15765.)
After Franks left the stand, the court allowed the defendants time
to proffer what they would have done with additional time. (Id.
PageID.15788-803.) Fox’s attorney implicitly acknowledged that both
attorneys were covering the same ground with witnesses but absolved
55
himself: “I have — I am the lead guy, so I haven’t been duplicating.” (Id.
PageID.15789) (emphasis added). He said he would have “inquired as to
the plea agreement,” and would have “inquired on some minor details on
the shoot house that pertained to Mr. Franks and his participation.” (Id.
PageID.15790.) He said he would have “inquired an inquiry into his role
in a little more detail in the conspiracy,” and asked him unspecified
questions about the “dash cam video” and his arrest. (Id. PageID.15791-
92.) Finally, he said he would have questioned Franks more about
Chappel’s role in the Wolverine Watchmen, and more “fully … explore[d]
LARPing.” (Id. PageID.1792-93.)
Croft’s counsel likewise proffered things that he actually did cover
with Franks; including his plea agreement, the fact that he lied to the
FBI about his involvement when he was first arrested, his use of
Suboxone in jail, and his suicidal thoughts. (Id. PageID.15794-15801.)
Croft’s attorney also said he would have asked about various meetings
and trainings that Croft did not personally attend. (Id. PageID.15801-
02.)
56
d. Hearsay Ruling
In December 2021, the defendants filed a motion in limine to admit
the out-of-court statements of government agents and confidential
human sources (CHSs) under Fed. R. Evid. 801(d)(2)(D). (R.383: Motion
in Limine, PageID.2559.) The defendants’ attached a 44-page
spreadsheet listing 258 purportedly non-hearsay statements. (R.383-1:
Attachment, PageID.2576-2620.) The government opposed the motion on
grounds that the proffered statements were either inadmissible hearsay,
irrelevant, or both. (R.396: United States’ Response, PageID.2721-29.)
After a hearing in February 2022, the district court granted the
defendants’ motion in part, and denied it in part. (R.439: Order,
PageID.3007-14.) The court acknowledged that under United States v.
Branham, 97 F.3d 835, 851 (6th Cir. 1996), “the federal government is a
party-opponent of the defendant in a criminal case,” and ruled the out-of-
court statements of sworn FBI agents fell within the agency exemption
to the hearsay rule. (R.439: Order, PageID.3010.)
The court distinguished Branham with regard to CHS statements,
however, noting that informants are more akin to “independent
contractors” who do not represent the government. (Id. PageID.3011-12.)
57
The district court ruled that Rule 801(d)(2)(D) covered “only those
situations where an informant’s words and actions are directly and
expressly authorized by a government agent.” (Id. PageID.3013.) And
even where such statements cleared the hearsay barrier, they would also
need to be relevant to be admissible. (Id. citing United States v. Reed, 167
F.3d 984, 989 n. 4 (6th Cir. 1999)).
In July 2022, the defendants re-filed essentially the same motions.
(R.665: Motion in Limine to Allow Admission of CHS Dan’s Text
Messages to SA Chambers; R.667: Motion in Limine to Allow CHS Dan’s
Out-of-Court Statements.) The defendants unsuccessfully attempted to
conflate the FBI authorizing informants with the FBI authorizing all of
the informants’ statements. (R.666: Motion in Limine, PageID.8387.) The
government objected, and the district court denied the renewed motions
for the same reasons stated in its earlier order. (R.672: Gov’t Response in
Opposition, PageID.8551; R.692: Order, PageID.8686.)
Fox cites no specific examples of the district court rejecting
proposed evidence under Rule 801(d)(2)(D) at trial. (Doc. 26, Def’s Br.,
Pages 66-69.) Croft proffers a list of transcript citations with no
accompanying descriptions. (Doc. 28, Def’s Br., Page 72.)
58
In two of the cited exchanges, defense counsel attempted to elicit
the out-of-court statements of CHS Steve Robeson from FBI Special
Agents Todd Reineck and Kristopher Long. (PageID.14583-84; 14760-
63.) The court ruled the statements were inadmissible hearsay. (Id.)
In two other exchanges, Fox’s counsel attempted to elicit the out-of-court
texts between Fox and an FBI online covert employee from Special Agent
Mark Schweers. (PageID.14996-98; 15019-21.) The court excluded the
evidence under Fed. R. Evid. 403, ruling that even if it was not hearsay,
“whatever tiny probative value it might have, is substantially outweighed
by the time, effort, and working through the details it would take to get
there.” (PageID.15020.)
In another exchange, counsel asked CHS Dan Chappel for the out-
of-court statements of co-defendants Ty Garbin and Kaleb Franks,
neither of whom was a government agent or informant. (PageID.15368.)
In another instance, counsel asked Ty Garbin whether CHS Dan Chappel
invited him on the nighttime surveillance of Governor Whitmer’s home.
(PageID.15601.) The district court overruled the government’s objection,
and Garbin actually provided the answer defense counsel sought. (Id.)
59
In two other segments cited by Croft, defense counsel proffered an
internal FBI report about CHS Steve Robeson failing to follow FBI
instructions and rules. (PageID.15811-13; 15904-06.) The court did not
reject the evidence on hearsay grounds, but rather ruled that its
“probative value, to the extent there is any, would be substantially
outweighed by in this case in particular the danger of confusion.”
(PageID.15904.) The court noted the report might be germane to
Robeson’s credibility if he were a witness, but it was not otherwise
particularly probative of entrapment. (PageID.15905.)
The three other transcript citations provided by Croft are of unclear
application to the Rule 801(d)(2)(D) question: In one, the government said
it would object if defense counsel attempted to elicit hearsay from the
witness, but no such attempt was actually made. (PageID.14598-99.) In
another, the court gave defense counsel permission to refresh Chappel’s
recollection with a prior statement, but counsel declined. (PageID.15338-
40.) A third citation (to the testimony of FBI explosives expert Kelly
VanArsdale) involves no hearsay proffers, objections, or rulings at all.
(PageID.15997-99.)
60
e. Conviction and Appeal
On August 23, 2022, the jury found both Croft and Fox guilty of all
charges. (R.847: Trial Tr. XI: PageID.16296.) On December 27, 2022, the
district court sentenced Fox to 192 months’ imprisonment as to each of
Counts 1 and 2, to be served concurrently. (R.801: Judgment,
PageID.10635.) On December 29, 2022, the court sentenced Croft to 235
months’ imprisonment as to each of Counts 1 and 2, and 120 months as
to Count 3, all to be served concurrently. (R.804: Judgment,
PageID.10649.) Both defendants filed timely notices of appeal. (R.806:
Fox NOA, PageID.10661; R.808: Croft NOA, PageID.10666.)
61
SUMMARY OF THE ARGUMENT
The defendants challenge the sufficiency of the evidence and they
argue the district court abused its discretion in addressing a claim of
juror misconduct, placing a time limit on one cross-examination, and
excluding certain hearsay. Each argument fails.
The defendants fail to carry their “very heavy burden” of
establishing for their preserved arguments that, viewed in the light most
favorable to the prosecution, no rational trier of fact could have found the
essential elements of the offenses charged. For Fox’s unpreserved
arguments, he fails to show the record is actually devoid of evidence.
Their agreement to kidnap the Governor of Michigan was established by
their own written and recorded statements, corroborated by the
testimony of undercover agents, confidential human sources, and
cooperating members of their own conspiracy. Each defendant personally
committed multiple overt acts in furtherance of the agreement, including
casing the Governor’s home, training with live firearms, and acquiring
specialized equipment for the abduction.
The defendants’ other miscellaneous arguments regarding the
kidnapping plot lack merit. The Governor did not “consent” to being
62
kidnapped, and in any event, the government was not required to prove
her lack of consent. The evidence also established the defendants sought
a benefit from the plot. Specifically, they had intended to catalyze a
nationwide rebellion against government authority by abducting and/or
publicly executing her.
As with the kidnapping conspiracy, the defendants’ agreement to
use weapons of mass destruction was established by their own written
and recorded statements and corroborated by eyewitness testimony and
physical evidence. The defendants also committed various overt acts in
furtherance of the agreement, including attempting to recruit a bomb
maker, constructing two improvised anti-personnel devices, procuring
supplies to make more bombs, ordering $4,000 worth of high explosives,
casing a bridge they intended to destroy with them, and showing up with
a good faith down payment for the explosives.
The jury rationally rejected the defendants’ entrapment defense as
to both conspiracy charges. Fox does not raise entrapment on appeal, and
thus has waived it. Neither defendant produced evidence that
government agents or informants induced them to commit the crimes.
Croft undermined his claim by suggesting the government planted the
63
bomb-making kit at his residence, which was rebutted by store
photographs of him purchasing the contents himself. In any event,
substantial evidence proved predisposition to commit the crimes. Croft
and Fox long expressed anti-government extremist views and discussed
kidnapping a state governor or “taking tyrants as hostages” before
meeting the informants they claimed had entrapped them.
Finally, Croft’s conviction for possessing an unregistered
destructive device was supported by uncontested evidence. The jury
heard eyewitness testimony that Croft detonated the device and heard
an audio recording of the actual explosion. They saw the exploded
remains of the bomb and heard the testimony of an FBI expert who
analyzed that evidence. An ATF records custodian testified that Croft
had not registered any destructive devices. Finally, Croft’s house was
filled with bomb making supplies similar to the device he was charged
with possessing.
The district court did not abuse its discretion in addressing the
defendants’ unsubstantiated claim of juror misconduct. The defendants
produced only a hearsay-within-hearsay claim that a juror had made up
their mind before trial. When the supposed source of the rumor was
64
contacted, they refused to confirm it. Weighed against the juror’s sworn
voir dire colloquy and an in-chambers interview, the court found the
defendants’ claim insufficiently credible to justify a mid-trial Remmer
hearing.
The district court also did not abuse its discretion when it placed a
reasonable time limit on the defendants’ cross-examination of a
corroborating government witness. The court had repeatedly warned
defense counsel that it might impose a time limit, after excessively
lengthy, repetitive, and meandering cross-examinations of previous
witnesses. The record also reflects counsel were able to adequately cover
their defense theories and explore the witness’ credibility in the time
allotted.
Finally, the defendants argue that unspecified statements of FBI
informants should have been admitted under the agency exemption to
the hearsay rule. The district court did not abuse its discretion when it
applied that exemption to the statements of sworn agents, and to
statements informants made at the specific direction of their handlers.
The district court correctly applied this Court’s precedent when it ruled
65
that informants’ independent statements were either outside the agency
relationship, or inadmissible on other grounds.
66
ARGUMENT
I. Viewed in the light most favorable to the prosecution, the

evidence was sufficient for a rational jury to have found the
defendants guilty.
This Court reviews a challenge to the sufficiency of the evidence de
novo. See, e.g., United States v. Wright, 774 F.3d 1085, 1088 (6th Cir.
2014). “A defendant challenging the sufficiency of the evidence bears a
very heavy burden.” Id. (quoting United States v. Prince, 214 F.3d 740,
746 (6th Cir. 2000)).
Generally, the Court considers “whether, after viewing the evidence
in the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable
doubt.” Id. (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
Indeed, it is the jury’s job “to resolve conflicts in the testimony, to weigh
the evidence, and to draw reasonable inferences from basic facts to
ultimate facts.” United States v. Williams, 998 F.3d 716, 727-28 (6th Cir.
2021) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). This Court
will not reverse a conviction on the basis of a preserved sufficiency of the
evidence argument unless, “‘viewing the record as a whole, the judgment
67
is not supported by substantial and competent evidence.’” Id. (quoting
United States v. Blakeney, 942 F.2d 1001, 1010 (6th Cir. 1991)).
Fox acknowledges he only argued below that the government failed
to show predisposition. (Fox Brief at 59.) “Although specificity of grounds
is not required in a Rule 29 motion…, where a Rule 29 motion is made on
specific grounds, all grounds not specified are waived.” United States v.
Dandy, 998 F.2d 1344, 1356–57 (6th Cir. 1993). This Court reviews
unpreserved sufficiency of the evidence arguments under the “manifest-
miscarriage-of-justice standard[] and will ‘only reverse a conviction if the
record is devoid of evidence pointing to guilt.’” United States v.
Guadaramma, 591 Fed. App’x 347, 351 (6th Cir. 2014) (quoting United
States v. Carnes, 309 F.3d 950, 956 (6th Cir.2002)).
A. Count 1 — Kidnapping Conspiracy
1. Generally
In order to prove a conspiracy, the government must establish:
First, that two or more persons conspired or agreed to commit the crime
(of kidnapping, in Count 1; of possessing weapons of mass destruction, in
Count 2). Second, that the defendant knowingly and voluntarily joined
the conspiracy. And third, that a member of the conspiracy did one of the
68
overt acts described in the indictment for the purpose of advancing or
helping the conspiracy. (Sixth Circuit Pattern Criminal Jury Instruction
3.01A; R.845: Trial Tr. IX, PageID.16163-67.)
The defendants’ written and recorded statements were alone
enough to establish their agreement. Both defendants explicitly stated
their goal was to abduct a state governor, and later affirmed that their
target was Governor Whitmer. Croft told an informant he intended “a
quick, precise grab on that fucking governor … Whitmer, Michigan.
Whitmer,” (R.839: Trial Tr. III, PageID.14742; Gov’t Ex. 108.) He
explained that they could “hold a trial … have her adjudged, and treason
is a hanging offense.” (R.841: Trial Tr. V, PageID.15094; Gov’t Ex. 106.)
Fox later explained to Chappel that he was of like mind: “Snatch and
grab … once we got her, she’s ours.” (R.841: Trial Tr. V, PageID.15106;
Gov’t Ex. 127.)
Both defendants committed overt acts in furtherance of the
conspiracy. Fox cased the Governor’s property twice, trained in a “shoot
house” constructed to simulate her home, ordered explosives, inspected
the bridge he would blow with them, and assembled a kidnapping kit
with flex cuffs, duct tape and rope. See supra, pp. 18-37. Croft recruited
69
Fox to form a Michigan Regiment of his “Second Continental Army,” to
hang a Governor and “start the dominoes falling.” (R.844: Trial Tr. Vol.
VIII, PageID.15945; Ex. 4.) He drove from Delaware to Ohio, Wisconsin,
and Michigan to recruit, plan, train, and reconnoiter the Governor’s
home. (R.838: Trial Tr. II: PageID.14521; R. 842: Trial Tr. VI,
PageID.15510; R.841: Trial Tr. V, PageID.15183.) He advised co-
conspirators to use his 37-millimeter projectile launcher on the
Governor’s security detail, and told them, “after an operation of this
magnitude, you are going to have to walk away from life.” (R.841: Trial
Tr. V, PageID.15159, Ex. 254; PageID.15155, Ex. 249; R.843
PageID.15555-56, 15751, 15727-28, Ex. 257.)
2. Agreement
Both defendants nevertheless contend the government failed to
prove an agreement. Fox contends there “was no specific plan” (Fox Brief
at 60) and no agreement on “when the mission should occur.” (Fox Brief
at 61). Croft contends no “plan of action” was presented to him that he
agreed to join (Croft Brief at 38), and that he was merely present,
approved of the object of the conspiracy but was not trusted. (Croft Brief
at 39-40).
70
Fox’s arguments fail as a matter of law. To show an agreement, the
government need only show a defendant “agreed to participate in what
he knew to be a collective venture directed toward a common goal.”
United States v. Smith, 320 F.3d 647, 653 (6th Cir. 2003); United States
v. Amawi, 695 F.3d 457, 476-77 (6th Cir. 2012) (“the government must
prove that each defendant adopted the conspiracy's main objective.”) The
government does not bear a burden “to prove that there was agreement
on all the details of how the crime would be carried out.” Sixth Circuit
Pattern Criminal Jury Instruction 3.01A, committee commentary, citing
United States v. Schultz, 855 F.2d 1217, 1221 (6th Cir. 1988). That
includes details of timing. See, e.g., Williamson v. United States, 207
U.S. 425, 449 (1908) (“It was not essential to the commission of the crime
that in the minds of the conspirators the precise persons to be suborned,
or the time and place of such suborning, should have been agreed upon,
... as the criminality of the conspiracy charged consisted in the unlawful
agreement to compass a criminal purpose....”); United States v. Thomas,
567 F.2d 638, 641 (5th Cir. 1978) (affirming conviction for conspiracy to
import narcotics despite lack of agreement on timing of shipment).
71
Fox is also incorrect as a matter of fact, as there was an agreement
to kidnap the Governor from her cottage when the opportunity
arose. See, e.g., infra, 1.h, i; (R:840; Trial Tr. IV, PageID.14930; Ex. 223;
R.841; Trial Tr. V, PageID.15161, Ex 264) (“it’s going to be
opportunistic”).
Croft’s argument about a particular “plan of action” likewise fails,
because it is the conspiracy’s “main objective” that matters. Amawi, 695
F.3d at 476-77. His argument about “mere presence” fares no better on
the facts. The argument turns on his assertion that he was never
recorded expressly agreeing to “the ‘kidnapping’ plan” in the works.
(Croft Br. at 39). But Croft’s words proved he was both the originator of
the main objective, and its most fervent advocate. (R.841: Trial Tr. V,
PageID.15101, Ex. 112; PageID.15094-95, Exs. 106, 109; R.844: Trial Tr.
VIII, PageID.15948, Ex. 360.) And “acts that ‘may reasonably be
interpreted as participation in a common plan’ can be used to establish
an implicit agreement.” Amawi, 695 F.3d at 477 (citation omitted). Croft
was not “merely present” when the conspirators cased the Governor’s
home at night. He went to “get eyes on the bridge” they would need to
blow. (R.843: Trial Tr. VII, PageID.15714.) Then he personally helped
72
locate her home from across the lake and plan the egress route they
would take after abducting her. (R.844: Trial Tr. VIII, PageID.15848, Ex.
248; PageID.15849, Exs. 238, 245.)
3. Consent
Both defendants claim the government was required to prove
Governor Whitmer did not consent to being kidnapped. (Doc. 26, Def’s
Br., Page 64; Doc. 28, Def’s Br., Pages 43-44.) In fact, they claim she did
consent. (Doc. 26, Def’s Br., Page 65; Doc. 28, Def’s Br., Page 44.) These
contentions are both legally and factually unsound.
This Court has long held that to prove a conspiracy, the government
need not prove the elements of the underlying crime that is the object of
the conspiracy. United States v. Washington, 715 F.3d 975, 980 (6th Cir.
2013). In Washington, the jury convicted the defendant of conspiracy to
commit program fraud. She challenged the verdict on the ground that the
government failed to prove she ‘embezzled, stole, or fraudulently
obtained property,’ an element of the underlying substantive offense. “In
rejecting that argument, Washington explained that the government did
not need to prove the elements of the fraud to convict the defendant of
conspiracy to commit the fraud. It was enough for the government to
73
prove the defendant knowingly and voluntarily joined an agreement to
defraud, and that a member of the conspiracy took an overt act in
furtherance of it.” United States v. Phillips, 872 F.3d 803, 806-07 (6th Cir.
2017).
The irrationality of the defendants’ argument is equally clear in
other contexts: Bank robbery, for example, requires that the money be
taken from a federally insured bank “by force and violence, or by
intimidation.” 18 U.S.C. § 2113(a); 3 Modern Federal Jury Instructions-
Criminal P 53.01. In a case involving conspiracy to rob a bank, it would
be no defense that the government failed to prove the teller would have
been intimidated. “It has been long and consistently recognized by the
Court that the commission of the substantive offense and a conspiracy to
commit it are separate and distinct offenses.” Pinkerton v. United States,
328 U.S. 640, 643 (1946).
In any event, to paraphrase this Court, “[T]hat is not the
defendants’ only problem.” Phillips, 872 F.3d at 806-07. The notion that
Governor Whitmer consented to being kidnapped or murdered by being
kept apprised of the investigation is facially absurd. Moreover,
defendants’ statements and preparations clearly established that they
74
did not expect her to come along willingly: The defendants said they
would “snatch” and “grab” her, not “invite” or “pick her up.” Croft said
they needed to kill her armed guards before “broaching” (sic) her house,
so “all that’s left leaving is her.” As Fox explained while they scoped her
house with night vision equipment, when they went to “go get the bitch
… the only thing you got to think about is how many security detail” she
would have. (R.840: Trial Tr. IV, PageID.14934; Ex. 229.) He went on,
“We could be sitting on a fucking boat with silencers. Ping! Ping! Ping!
Ping! Ping! Her detail is gone before we even reach the shore. Maybe she's
got one or two inside. Okay, well, then we deal with those … Hit the
target. Extract the target to the water.” (Id.) Fox also procured a taser
and flex cuffs, and said they needed a “hood for our asset,” items that
hardly suggest the victim’s consent. (R.843: Trial Tr. VII, PageID.15558;
R.841: Trial Tr. V, PageID.15141-43, Ex. 208.)
Ultimately, defendants’ consent argument is a disguised argument
that it was impossible for them to succeed with their plan because the
Governor stayed clear of her cottage on advice of her security detail. But
“[i]t is no defense to a conspiracy charge that success was impossible
because of circumstances that the defendants did not know about.” (citing
75
United States v. Jimenez Recio, 537 U.S. 270, 274 (2003) (“A conspiracy
does not automatically terminate simply because the Government,
unbeknownst to some of the conspirators, has ‘defeat[ed]’ the conspiracy’s
‘object’.”)).
4. The defendants sought a benefit
Finally, Fox argues the government did not prove the conspirators
would “benefit” from kidnapping the Governor. (Doc. 26, Def’s Br., Page
62.) In support, he cites one of the possible plans discussed by the
conspirators, which was to leave the Governor in the middle of Lake
Michigan, causing her a “massive inconvenience.” (Doc. 26, Def’s Br.,
Page 63.) He elides the defendants’ many calls to execute the Governor
and argues that “inconveniencing” her would be neither “for ransom or
reward or otherwise” as that element of 18 U.S.C. § 1201 has come to be
understood. (Id.)
The term “benefit” bears a broad meaning. See Gooch v. United
States, 297 U.S. 124, 128 (1936) (“prevention of an arrest” qualified as a
benefit, particularly given the “otherwise” clause). Other courts generally
understand § 1201’s “otherwise” clause in fact encompasses a wide range
of subjective benefits. See, e.g., United States v. Vickers, 578 F.2d 1057
76
(5th Cir. 1978) (“otherwise” included forcing victim to discuss their
marital problems); United States v. Satterfield, 743 F.2d 827 (11th Cir.
1984) (silencing a potential witness); United States v. McCabe, 812 F.2d
1060 (8th Cir. 1987) (kidnapping child as revenge against father in a
dispute over car ownership); United States v. Griffin, 547 F. App’x 917
(11th Cir. 2013) (for revenge and intimidation.)
The defendants intended to obtain at least three benefits from the
plot: To intimidate government officials, to recruit followers, and to
foment a rebellion.
First, Congress has defined domestic terrorism as “commit[ting] a
criminal violation to intimidate or coerce the population; influence the
policy of government by intimidation or coercion, or affect the conduct of
government by mass destruction, assassination, or kidnapping.” 18
U.S.C. § 2331(5). Even if the only purpose the defendants intended was
to cause the Governor “massive inconvenience” (an obvious euphemism
in context) that would be enough: Fox told co-conspirators that taking
“tyrants as hostages” would send a message that “If we can get her, we
can get you.” (R.840: Trial Tr. IV, PageID.14930; Ex. 223.) Croft agreed
77
that “If they're afraid and they bleed we can fucking kill them.” (R.839:
Trial Tr. III, PageID.14745; Ex. 220.)
Second, the defendants hoped the kidnapping would convince
others to join their cause. In Ohio, Croft told Fox and others that when
they started operating, others would “join up at my flanks because they're
going to love the shit that I'm getting ready to do.” (R.839: Trial Tr. III,
PageID.14724; Ex. 35.) Fox said the abduction would be “inspirational”
for the “fence sitters.” (R.841: Trial Tr. V, PageID.15136; Gov’t Ex. 194.)
And Croft told the conspirators, “Look at how small this group is. When
we show them out there you can win, get out of the way.” (R.839: Trial
Tr. III, PageID.14745; Ex. 220.)
Third, the defendants’ ultimate goal in “taking a governor” was to
start the “dominos” (sic) falling toward a nationwide collapse of civil
order. (R.844: Trial Tr. Vol. VIII, PageID.15945; Ex. 4.) Croft selected
Governor Whitmer because “Michigan’s government [was] a target of
opportunity.” (R.838: Trial Tr. Vol. II, PageID.14543; Ex. 71.) As Fox told
his followers: “Saying the Boogaloo Bois wish to incite the next civil war?
How fucking wrong could they ever be? We want a revolutionary war. We
78
want to get rid of this corrupt, tyrannical fucking government!” (R.838:
Trial Tr. II, PageID.14542; Ex. 70.)
B. Count 2: WMD Conspiracy
There was also ample evidence that the conspirators agreed to use
weapons of mass destruction and committed overt acts in furtherance of
that agreement. From the first time Croft met Fox in Ohio, he said he
was “getting ready level buildings, burn motherfuckers’ houses down
with them inside of it … and terrorize people.” Days later, Fox pitched
those plans to recruits in Michigan, and said they need a “baker” to carry
them out.
Croft committed overt acts in furtherance of the agreement. He
drove to Wisconsin to get their co-conspirators “demolitions trained” so
they would “have a chance against” the government. (R.839: Trial Tr. III,
PageID.14742; Ex. 85; PageID.14737; Ex. 84.) He brought a bombmaking
kit and attempted to make an IED with Garbin and Franks. (R.842: Trial
Tr. VI, PageID.15511.) Two months later, he brought the kit to Luther,
Michigan, where they successfully detonated an IED with pennies that
would “go right through your skin” at 25 yards’ distance. (R.839: Trial Tr.
III, PageID.14744; Ex. 219.) The conspirators hung human silhouette
79
targets around the device to test its lethality. (R.842: Trial Tr. VI,
PageID.15518-19; Ex. 172.)
Fox also committed overt acts in furtherance of the agreement. He
attempted to recruit an independent bombmaker, who refused to
participate. (R.842: Trial Tr. VI, PageID.15487, 15492.) He ordered
$4,000 worth of explosives, crawled under a bridge looking for a place to
detonate them, and photographed it. (R.841: Trial Tr. V, PageID.15150.)
He encouraged other conspirators who were “down with the cause” to
contribute toward the $4,000, and he brought a good faith down payment
on the day of his arrest. (R.840: Trial Tr. IV, PageID.14930, Ex. 223;
R.843: Trial Tr. VII, PageID.15559.)
C. The Defendants Were Not Entrapped
A not guilty verdict is appropriate even if the elements are proven,
if the defendant is entrapped. (R.845: Trial Tr. IX, PageID.16172.) A valid
entrapment defense has two related elements: government inducement
of the crime, and a lack of predisposition on the part of the defendant to
engage in the criminal conduct. Mathews v. United States, 485 U.S. 58,
62-63 (1988); see also United States v. Nelson, 922 F.2d 311, 317 (6th Cir.
1990). As long as the defendant shows a predisposition to commit an
80
offense, governmental participation in the commission of an offense by
itself cannot be the basis of an entrapment defense. United States v.
Tucker, 28 F.3d 1420 (6th Cir. 1994). “The defense of entrapment exists
to thwart the government from ‘originat[ing] a criminal design,
implant[ing] in an innocent person’s mind the disposition to commit a
criminal act, and then induc[ing] commission of the crime so that the
Government may prosecute.’” United States v. Harris, 9 F.3d 493, 497
(6th Cir. 1993)( citation omitted).
Only Croft challenges his conviction on appeal on entrapment
grounds. By not raising such a claim in his opening brief, Fox has waived
the issue. See United States v. Lopez-Medina, 461 F.3d 724, 743 (6th Cir.
2006). Even if Fox did not waive it, the claim fails for largely the same
reasons as for Croft.
The defendants’ entrapment defense failed because there was no
evidence of government inducement, but plenty of evidence of
predisposition. Inducement requires “something more than ‘merely
afford[ing] an opportunity or facilities for the commission of the crime.’”
United States v. Poulsen, 655 F.3d 492, 502 (6th Cir. 2011) (citing
Mathews, 485 U.S. at 66). There must be “some manner of pressure or
81
persuasion by the government.” United States v. Sadiqullah, 2021 WL
3043271 *6 (6th Cir. 2021) (citing United States v. Sutton, 769 Fed. App’x
289, 298 (6th Cir. 2019) (“excessive pressure or repeated and persistent
solicitation”)).
Here, there was no evidence that government agents or informants
suggested the plot or offered more than opportunity and facilities. On the
contrary, members of the conspiracy testified they never saw Chappel or
Robeson telling either Fox or Croft what to do. (R.843: Trial Tr. VII,
PageID.15570, 15701). Rather, Fox and Croft were the ones proposing
the ideas for anti-government violence. (Id. PageID.15704.) The
“criminal design” originated with the defendants (E.g., R.841: Trial Tr.
V, PageID.15083; R.842: Trial Tr. VI, PageID.15513-14; R.839: Trial Tr.
III, PageID.14742; Gov’t Ex. 108), and the jury saw and heard too many
video and audio recordings of the defendants venomously promising
violence, planning and participating in trainings, bringing their own
weapons and material, and enthusiastically plotting the abduction, to
believe the government, or anyone acting for the government, “induced
or persuaded” them to plan to kidnap the Governor. Sixth Cir. Pattern
Jur. Inst. 6.03 Entrapment.
82
Voluminous evidence established the defendants were predisposed
to commit the offenses. Predisposition “focuses upon whether the
defendant was an ‘unwary innocent’ or instead, an ‘unwary criminal’ who
readily availed himself of the opportunity to perpetrate the crime.”
Mathews, 485 U.S. at 63. The evidence established the latter. Croft had
prominently tattooed slogans advocating rebellion (e.g., “expect us”) on
his body by 2017 and was already teasing his “flash gathering” to plan
acts of terrorism by the fall 2019. In his own recorded words, he was
saying by December 2019, “let me take the militia and go grab that
fucking governor right where he lives at.” (R.841: Trial Tr. V,
PageID.15101, Ex. 112.) In private messages with non-government
parties, Croft wrote that hanging the governor of one state would
precipitate a “domino” effect (R.844: Trial Tr. Vol. VIII, PageID.15945;
Ex. 4), and that “Michigan’s government is a target of opportunity.”
(R.838: Trial Tr. Vol. II, PageID.14543; Ex. 71.)
Fox agreed with Croft — again, before he ever met a government
informant — that “that’s where my heart’s at.” (R.838: Trial Tr. II,
PageID. 14516; Ex. 488.) Back in 2019, he promoted Boogaloo ideology;
and in January of 2020, he posted memes and imagery suggesting
83
revolutionary violence. (R.838: Trial Tr. II, PageID.14474, Ex. 435; R.
839: Trial Tr. III, PageID.14676, Ex. 437; R.838: Trial Tr. II,
PageID.14500; Ex. 2.) At the June 6, 2020 meeting in Ohio, he proposed
storming the state Capitol to “take tyrants as hostages” on his own
initiative. (R.839: Trial Tr. III, PageID.14727; Ex. 40.) It was only weeks
later—during his June 20, 2020 meeting at the Vac Shack—that Fox met
informant Chappel for the first time. Unbidden, Fox told Chappel and
Garbin that they could “level the playing field” and urged them to be
“actively staging and planning” to act before the next election. (R.841:
Trial Tr. V, PageID.15083; Ex. 64.)
D. Count 3: Possession of an Unregistered Destructive

Device
Finally, the evidence that Croft possessed an unregistered
destructive device was essentially uncontroverted. He described the
device in recorded conversations, and eyewitnesses—including his own
girlfriend—placed him at the scene where he detonated it. An FBI expert
examined the evidence collected from the post-blast site and testified that
the bomb was a destructive device. (R.844: Trial Tr. VIII, PageID.15977-
85.) An ATF records specialist established that Croft had not registered
it. (R.842: Trial Tr. VI, PageID.15477-81.) Croft had matching bomb
84
making supplies at his home, and discredited his own defense when he
was caught falsely suggesting the evidence had been planted. (R.845:
Trial Tr. IX, PageID.16100; Gov’t Ex. 602.)
II. The District Court Did Not Abuse Its Discretion When It
Declined to Allow Defense Counsel to Interrogate a Juror
Mid-trial Based on Hearsay Allegations Attributed to an
Anonymous Individual Who, When Found, Said He Would
Deny Them If Called as a Witness.
The Supreme Court has held that when possible juror misconduct
is brought to the trial judge’s attention, he has a duty to investigate.
United States v. Perry, 438 F.3d at 642, 651 (6th Cir. 2006) (citing
Remmer v. United States, 347 U.S. 227 (1954)). Since the trial judge is in
the best position to determine the nature and extent of alleged jury
misconduct, his decision on the scope of proceedings necessary to discover
misconduct is reviewed only for an abuse of discretion. United States v.
Rigsby, 45 F. 3d 120, 125 (6th Cir. 1995).
“[A] hearing is not required every time a mere possibility of juror
bias is raised. Indeed, in order to be entitled to a Remmer hearing, a
defendant ‘must do more than simply raise the possibility of bias.’”
United States v. Vining, 224 F. App'x 487, 492 (6th Cir. 2007); United
States v. Owens, 426 F.3d 800, 805 (6th Cir. 2005) (“mere speculation”
85
insufficient). As a threshold matter, “a party’s request for a Remmer
hearing must be supported by credible evidence.” United States v. Bailey,
2022 U.S. App. LEXIS 18441, *23-24 (6th Cir. July 5, 2022). In
determining whether a hearing must be held, the court must consider the
content of the allegations, the seriousness of the alleged misconduct or
bias, and the credibility of the source. United States v. Angulo, 4 F.3d
843, 847 (9th Cir. 1993). See, e.g., United States v. Dalton, 40 F. App’x
420, 424 (9th Cir. 2002) (no hearing based on the unsworn declaration of
an interested party who failed to identify the “other person” supposedly
contacting the jury).
Defendant Croft misleadingly cites Cunningham v. Shoop, 23 F.4th
636 (6th Cir. 2022) (citing Smith v. Phillips, 455 U.S. 209 (1982)) for the
proposition that mere “‘allegations of juror partiality’ suffice” to clear the
threshold. (Doc. 28, Def’s Br., Page 56; quotation marks in original.) He
elides that Cunningham crafted that compound quote from Smith to
make an unrelated point in the habeas corpus context. Smith actually
says, “If in the federal system a post-trial hearing such as that conducted
here is sufficient to decide allegations of juror partiality, the Due Process
Clause of the Fourteenth Amendment cannot possibly require more of a
86
state court system.” Smith, 455 U.S. at 218. In other words, a Remmer
hearing may be sufficient to address an allegation of juror misconduct,
but that does not mean a mere allegation of juror misconduct is sufficient
to require a Remmer hearing.
Croft also attempts to lower the bar for triggering a Remmer
hearing with phantom authority that “a credible allegation is a plausible
one.” (Doc. 28, Def’s Br., Page 56.) But the case he cites says nothing of
the sort. See United States v. French, 977 F.3d 114, 122 (1st Cir. 2020)
(full evidentiary proceeding not always required in response to an
allegation of juror bias). Croft uses this quote to deploy a logical fallacy:
while all credible allegations are certainly plausible, not all plausible
allegations are credible. Merriam-Webster’s dictionary defines credible
as “offering reasonable grounds for being believed or trusted,” whereas
plausible means “superficially fair, reasonable, or valuable but often
deceptively so.” A Remmer hearing is not required when someone makes
the kind of superficially plausible, but likely deceptive, claim of juror
misconduct advanced in this case.
Croft also cites Barnes v. Joyner, 751 F.3d 229, 248 (4th Cir. 2014)
for the proposition that only a “minimal showing” is required to trigger a
87
hearing. (Doc. 28, Def’s Br., Page 56.) He fails to mention that unlike this
case, Barnes arose in the context of jury tampering.
Courts have by and large applied the Remmer standard in cases of
jury tampering. Rigsby, 45 F.3d 120, 124 (citing cases)2. But whether the
Remmer presumption even applies outside of cases of juror tampering is
“open to debate.” See Whitehead v. Cowan, 263 F.3d 708, 724 (7th Cir.
2001) (citing United States v. Dutkel, 192 F.3d 893, 895 (9th Cir. 1999)).
The Ninth Circuit emphasized that “Remmer’s command that hearings
are warranted in every case is unique to the tampering context, where
the potential effect on the jury is severe.” Tracy v. Palmateer, 341 F.3d
1037, 1044 (9th Cir. 2003). The Palmateer court debunked the same
Smith-based argument now advanced by Croft:
Remmer and Smith do not stand for the proposition that any
time evidence of juror bias comes to light, due process requires
the trial court to question the jurors alleged to have bias.
Smith states that this ‘may’ be the proper course, and that a
hearing ‘is sufficient’ to satisfy due process. Smith leaves open
the door as to whether a hearing is always required and what
else may be ‘sufficient’ to alleviate any due process concerns.
2 United States v. Pennell, 737 F.2d 521 (6th Cir. 1984) (jurors received
threatening calls); United States v. Rugiero, 20 F.3d 1387 (6th Cir. 1994)
(jurors saw TV broadcast linking defense counsel to organized crime),
United States v. Zelinka, 862 F.2d 92 (6th Cir. 1988) (spectator made
threatening comments in presence of jurors).
88
Id, at 1044 (citing Smith, 455 U.S. at 217, 218).
The scope of proceedings necessary to investigate an allegation of
juror bias is committed the trial court’s discretion. United States v.
Shackelford, 777 F.2d 1141, 1145 (6th Cir. 1985.) “Smith does not require
a court to hold a hearing to investigate prejudicial occurrences, and it
does not specify what actions short of a hearing may be appropriate under
a different set of circumstances.” Haxhia v. Lee, 637 F. App’x 634, 637 (2d
Cir. 2016) (no evidentiary hearing required to look into allegation of a
racially charged fight between jurors). Moreover, this Court has explicitly
recognized that a mid-trial Remmer-type hearing risks influencing the
remaining jurors and may not be appropriate in every case. United States
v. Gjokaj, 555 F. App’x 581, 586 (6th Cir. 2014)
No one disputes Croft’s argument that counsel must be present at
a Remmer hearing. (Doc. 28, Def’s Br., Page 55.) But he cites no authority
for the suggestion that counsel must be present when the court, in its
discretion, proceeds another way. On the contrary, the Supreme Court
has explicitly held that “the defense has no constitutional right to be
present at every interaction between a judge and a juror, nor is there a
constitutional right to have a court reporter transcribe every such
89
communication.” United States v. Gagnon, 470 U.S. 522, 526 (1985). As
courts have noted, the presence of defense counsel and the prosecutor can
be counterproductive during an in camera inquiry with a juror. (Id, at
527). The First Circuit noted “the sensitive nature of such an inquiry,
especially mid-trial,” and emphasized that because “conducting an
inquiry into a colorable question of jury taint is a delicate matter … there
is no pat procedure for such an inquiry.” United States v. Bradshaw, 281
F.3d 278, 290 (1st Cir. 2002) (citing United States v. Boylan, 898 F.2d
230, 250 (1st Cir. 1990) (“the kaleidoscopic variety of possible problems
counsels in favor of flexibility.”))
The district court did not abuse its discretion when it found the
defendants’ allegation of juror misconduct incredible and denied their
request for a Remmer hearing. The court considered the variety of
possible problems a mid-trial investigation could raise and conducted an
appropriately balanced inquiry.
The defendants’ post-trial submission only confirmed the propriety
of the court’s judgment: A supposedly corroborating witness admitted
that they too were only relaying hearsay from an unidentified source. The
purported originator of the rumor themselves refused to confirm it.
90
Perhaps more concerningly, the caller signaled their own potential bias,
invoking a conspiracy theory about Black Lives Matter activists stalking
their workplace. The defendants repeatedly leaned on the caller’s ability
to physically describe the juror as “indicia of reliability.” As the court
astutely observed, that only proved they knew the juror well enough to
opine they had the “wrong” political orientation to sit on a case in which
they were interested in the outcome.
Even in cases where a credible allegation has been made, it is not
established that a Remmer hearing is required outside the jury
tampering context. A Remmer hearing is one way to address allegations
of juror misconduct, but not the only way. It was not required in this case,
where the allegations were not credible. As the court intimated, holding
a Remmer hearing every time an anonymous tipster calls could expose
any politically charged trial to a heckler’s veto. The court wisely chose to
conduct a less invasive inquiry, which avoided causing new jury issues
where none already existed.
91
III. The District Court Did Not Abuse its Discretion When, After
Repeated Warnings, It Placed a Time Limit (But No Content
Limits) On The Cross Examination of One Corroborating
Witness.
The Sixth Amendment’s Confrontation Clause “has not been
construed to give criminal defendants absolute control over cross-
examination.” Dorsey v. Parke, 872 F.2d 163, 166 (6th Cir. 1989). “It
guarantees only an opportunity for effective cross-examination, not cross-
examination that is effective in whatever way, and to whatever extent,
the defense might wish.” Delaware v. Fensterer, 474 U.S. 15, 20 (1985).
“Beyond certain ‘essentials of cross-examination’ the right to cross-
examination is subject to limits imposed by the trial court in the exercise
of its discretion.” Dorsey, 872 F.2d at 166. The standard of review is abuse
of that discretion. Id.
This Court has recognized that a “district court has broad discretion
to place limits on the presentation of evidence.” Ross v. Parrot’s Landing,
Inc., No. 21-1774/1803, 2022 U.S. App. LEXIS 28588, at *7 (6th Cir. Oct.
13, 2022) (citing Sutkiewicz v. Monroe Cnty. Sheriff, 110 F.3d 352, 361
(6th Cir. 1997)). That power is inferred from the Federal Rules of
Evidence, including “the court’s authority to exclude relevant evidence to
avoid ‘undue delay, wasting time, or needlessly presenting cumulative
92
evidence,’ Fed. R. Evid. 403, and to ‘exercise reasonable control over the
mode and order of examining witnesses and presenting evidence,’ Fed. R.
Evid. 611(a).” Id, at *8. As this Court observed:
Trial judges, unlike appellate judges, have a battle-tested

sense for the time it takes to try a case; they know the
proposed evidence in that case; they have developed a
seasoned sense for how long it takes for certain types
of evidence to come in; they have a keen sense for the parties’
arguments and how they have developed from the beginning
of the case; they understand the tendencies of the lawyers in
the case; and they have come to understand the limits of a
jury’s patience. Under these circumstances, the trial judge is
apt to have a far better sense of the time it takes to try a case
than an appellate judge. Hence the discretion built into the
standard of review. Even when a trial judge’s time limits push
the bounds of custom or fairness, moreover, the moving party
must show prejudice.
Id, at *9.
Other appellate courts have lauded Judge Bertelsman’s opinion in
United States v. Reaves, 636 F.Supp. 1575, 1578 (E.D. Ky. 1986), which
relied on those same Rules of Evidence to justify limits on cross
examination. See, e.g., Sec’y of Labor v. DeSisto, 929 F.2d 789, 795 (1st
Cir. 1991) (citing MCI Communications Corp. v. American Tel. & Tel. Co.
708 F.2d 1081, 1171 (7th Cir. 1993)).
This Court has disapproved trial rulings that kept defense counsel
from adding to the fund of concrete information with which a jury could
93
assess a government witness’s credibility. Dorsey v. Parke, 872 F.2d 163,
167 (6th Cir. 1989); see also United States v. Garrett, 542 F.2d 23, 225-26
(6th Cir. 1976) (trial court barred defense from asking officer about
suspension and use of narcotics). Time limits, however, are not per se
inappropriate unless they are arbitrarily applied. See, e.g., United States
v. Pulido, 69 F.3d 192, 204 (7th Cir. 1995). “For cross-examination has no
natural limits, and the trial judge must therefore exercise judgment in
deciding when the point of diminishing returns has been reached, or
passed—a judgment that will depend on the particulars of each case, and
on such unreviewable imponderables as the judge's assessment of the
jury's comprehension and attention span.” United States v. Herrera-
Medina, 853 F.2d 564, 566 (7th Cir. 1988) (no abuse of discretion to
disallow recall of informant for further cross-examination).
“The proper analysis in determining whether counsel was granted
an opportunity for effective cross-examination asks whether the jury had
enough information to assess the defense theory, in spite of any court-
imposed limitations.” McPherson v. Woods, 506 F. App’x 379, 390 (6th
Cir. 2012) (citing Dorsey, 872 F.2d at 167). “When the refused cross-
examination relates to impeachment evidence,” the question is whether
94
“the jury had sufficient information to appraise the bias and motives of
the witness.” Skinner v. Cardwell, 564 F.2d 1381, 1389 (9th Cir. 1977)
(citing United States v. Baker, 494 F.2d 1262, 1266-67 (6th Cir. 1974)).
In McPherson, the trial court limited defense counsel to ten
additional minutes of cross-examination, when he had already spent fifty
minutes exploring why the witness had not previously identified his
client as the perpetrator. McPherson, 506 F. App’x at 390. Although
counsel proffered the time constraints would be “substantially limiting
the interrogation that he intended and would otherwise pursue,” this
Court found no abuse of discretion because the defense “was given
adequate opportunity to explore the witness’s conflicting statements, her
credibility, and her observations on the day of the shooting.” Id.
In United States v. Spangler, 638 F. App’x 611 (9th Cir. 2016), there
was no abuse of discretion where the court cut off cross examination, but
the jury had sufficient information to appraise the witness’s biases and
motivations. “[T]he district court's ruling neither limited relevant
testimony nor prejudiced Spangler, as the court brought cross-
examination to a close only when defense counsel's questioning became
repetitive and greatly exceeded defense counsel's time estimate of one
95
hour. Further, the district court gave counsel timely warnings that his
cross-examination was becoming repetitive, argumentative, and
unfocused. Spangler had fair warning before he was told his
examination was complete.” Id, at 613.
In another similar case, the trial court warned defense counsel that
his cross-examination was becoming “meandering and generally
pointless.” United States v. Muhammad, 928 F.2d 1461, 1467 (7th Cir.
1991). Counsel nonetheless used the balance of his time to cover and re-
cover the witness’s prior inconsistent statements, and then argued on
appeal that he would have elicited specific exculpatory evidence given
more time. Id. The court of appeals rejected that claim:
It would seem that if defense counsel could elicit exculpatory

evidence from [the witness], knowing at the start of his
examination that he was potentially under time restrictions,
he would have sought to do so rather than concentrating on
areas of far less comparative importance. Even if defense
counsel made a tactical decision to cover other areas of
examination first, his failure to attempt to elicit any
exculpatory evidence even after notification from the district
court that examination of the witness was about to be
curtailed, creates a strong inference that no such exculpatory
evidence existed in this instance.
Id.
96
While noting that time limits can run afoul of the Confrontation
Clause, the court of appeals dismissed the “after-the fact assertions” that
additional examination would have yielded exculpatory evidence as
“largely directed at creating an issue on appeal,” and held the district
court had not abused its discretion. Id.
One of the primary arguments for leeway in developing cross-
examination is that “[c]ounsel often cannot know in advance what
pertinent facts may be elicited on cross-examination,” making it
“necessarily exploratory.” Dorsey v. Parke, 872 F.2d 163, 167 (6th Cir.
1989). In this case, however, defense counsel knew exactly what pertinent
facts could be elicited on cross-examination without exploratory
bumbling, because they had examined Franks during the first trial. For
the same reason, the trial judge also had a “battle-tested” sense for how
long it should take to extract that information from Franks.
By the time Franks took the stand, the court had watched defense
counsel pursue repetitive, argumentative, and tangential lines of
questioning with multiple witnesses. It had warned counsel repeatedly
that the jury was “checking out,” and urged them to focus and shorten
their examinations. When the defendants showed no sign of relenting,
97
the court reasonably determined that limits were necessary to avoid
undue delay, waste of time, and presentation of cumulative evidence.
The limit imposed by the court was not arbitrary. The court allowed
the defendants as much time as the prosecution, and placed no
restrictions on the topics they could explore. During the time allotted,
counsel developed enough information to enable the jury to assess the
defense theories: Both counsel used the examination to suggest their
clients were “LARPing” or just playing dress-up. Both attorneys elicited
admissions that their clients were not members of the Wolverine
Watchmen and missed various meetings and training sessions. Both
attorneys asked questions suggesting their clients were entrapped by
informants.
The defendants also developed enough information to appraise
Franks’ credibility and motives. They highlighted Franks’ initial claim of
innocence when he was arrested. They explored his plea agreement, and
elicited admissions that he hoped to earn a shorter sentence by testifying
for the government. They questioned his suicidal thoughts as a motive
for participating in the plot. They pointed out that he had illegally taken
the prescription drug Suboxone while in jail.
98
To the extent they left anything on the table, it was by Fox’s own
admission “minor details” about this, and “a little more detail” about that.
Croft’s attorney, moreover, had the benefit of going second: He could have
chosen not to re-visit the same topics covered by Fox, and used his time
for other questions instead. That he chose not to creates a strong
inference that he knew further questioning would have yielded little new
grist for argument.
Moreover, when given the opportunity to say what they would have
asked if given more time, both defense attorneys proffered things that
they actually had covered: LARPing, Franks’ initial denial of the plot, the
incentives raised by his plea agreement, his use of drugs in jail, his
suicidal thoughts, and a re-hashing of the various meetings the
defendants did not attend. In other words, their proffers proved that they
had reached the point of diminishing returns during the allotted time for
cross-examination.
Croft asserts Franks was the government’s “star,” but also calls him
a “weak witness … with his ‘I wanted to be killed’ garbage and his drug
addiction which, after his arrest, caused him to use illegal opioids in jail.”
(Doc. 28, Def’s Br., Page 78.) In the same diatribe, Croft uses scare quotes
99
to describe the case as a “conspiracy” with “scammed up” charges. (Id.
PageID.79.) If Franks was indeed a self-evidently incredible witness in
an obviously flimsy case, Croft can hardly claim to have been prejudiced
when Franks’ cross examination was limited to the length of his direct.
The time limit was only imposed as a last resort after defense
counsel disregarded the court’s entreaties to avoid repetition. In any case,
Franks’ evidence was mostly just corroborative of Garbin and Chappel,
whom the defendants cross-examined for hours. The time limit did not
deprive the jury of the information necessary to weigh the defense
theories or appraise Franks’ credibility, and it did not prejudice the
defense.
IV. The District Court Did Not Abuse Its Discretion When It
Allowed The Defendants to Introduce The Statements of
Sworn Federal Agents as Non-hearsay, But Limited The
Admission of Informant Statements to Those Made Within
The Scope of An Agency Relationship.
This Court reviews evidentiary decisions such as exclusion of
hearsay for abuse of discretion. United States v. Wright, 343 F.3d 849,
865 (6th Cir. 2003). An abuse of discretion occurs when the Court “is left
with the definite and firm conviction that the [district] court committed
a clear error of judgment in the conclusion it reached upon a weighing of
100
the relevant factors or where it improperly applies the law or uses an
erroneous legal standard.” United States v. Haywood, 280 F.3d 715, 720
(6th Cir. 2002) (quotation omitted). Even if there was an abuse of
discretion, the jury verdict will not be overturned if the Court can say
with assurance that the verdict was not “substantially swayed” by the
error. Id. at 724 (quoting Kotteakos v. United States, 328 U.S. 750, 765,
66 S. Ct. 1239, 90 L. Ed. 1557 (1946)).
“Hearsay” is “a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove the
truth of the matter asserted.” Fed. R. Evid. 801(c). Hearsay is not
admissible unless otherwise provided by a federal statute, the rules of
evidence, or other rules prescribed by the Supreme Court. Fed. R. Evid.
802. “Rule 802 is premised on the theory that out-of-court statements are
subject to particular hazards. The declarant might be lying; he might
have misperceived the events which he relates; he might have faulty
memory; his words might be misunderstood or taken out of context by the
listener.” United States v. McDaniel, 398 F.3d 540, 545 (6th Cir. 2005)
(citing Williamson v. United States, 512 U.S. 594, 598 (1994)). In
contrast, “these dangers are minimized for in-court statements—
101
[because of] the oath, the witness’ awareness of the gravity of the
proceedings, the jury’s ability to observe the witness’ demeanor, and,
most importantly, the right of the opponent t to cross-examine.” Id.
(internal quotations omitted.)
Rule 801 provides that a statement “offered against an opposing
party,” and “made by the party’s agent or employee on a matter within
the scope of that relationship and while it existed” is not hearsay. Fed. R.
Evid. 801(d)(2)(D). In Branham v. United States, 97 F.3d 835, 851 (6th
Cir. 1996) the prosecution conceded that under Rule 801(d)(2)(D), “the
federal government is a party-opponent of the defendant in a criminal
case.” The Branham court extended the coverage of the Rule to
conversations between a sworn agent and an informant, where what the
informant “said during these conversations was in furtherance of that
goal, and thus within the scope of the existing agency.” Id.
Fox and Croft both claim the district court flouted Branham, and
instead chose to “follow case law from other circuits.” (Doc. 26, Def’s Br.,
Pages 67-68; Doc. 28, Def’s Br., Page 71.) Actually, the district court cited
that authority only for declining to extend Branham beyond its holding.
As the court explained:
102
The Branham court’s application of the rule to informants

stands apart from the decisions of other courts and the
insights of commentators. United States v. Yildiz, 355 F.3d 80,
82; United States v. Rodriguez-Landa, Case No. 2:13-cr-
00484-CAS-1, 2019 WL 1755518, at *4; Christopher B.
Mueller & Laird C. Kirkpatrick, 4 Federal Evidence § 8:56
(4th Ed. May 2021) (“Usually statements by informants
should not be viewed as admissions by the government.
Unlike the more usual government agents and employees, the
scope of an informant’s responsibility is hard to define.
Moreover, informants are expected to deal in and report
rumor, speculation, suspicion, and opinion, and often they
themselves are implicated in criminal ventures and labor
under a mix of motives that is hard to unravel. Informants
more closely resemble independent contractors than typical
agents.”)
(R.439: Order, PageID.3012-13.)
The court reasoned that “informants are basically independent
contractors, not agents or employees,” whose statements would not
typically come within Rule 801(d)(2)(D). (Id., citing Weinstein’s Federal
Evidence, 801.33(2)(b) at 801-74 (2d ed. 2004)).
The district court did not abuse its discretion when it correctly
interpreted and applied Branham to the facts of this case. Contrary to
Croft’s assertion, Branham did not create a “broad scope” that
“commands” the admission of all informant statements. Branham says
only that agent/informant conversations in furtherance of the
investigative goal are within the scope of the existing agency. That leaves
103
out a broad swath of other statements an informant might independently
make, dealing in “rumor, speculation, suspicion, and opinion,” that are
not fairly attributable to the government.
In any event, irrelevant evidence is not admissible just because it
is exempted from the hearsay rule. United States v. Reed, 167 F.3d 984,
989 n.4 (6th Cir. 1999); see also United States v. White, 815 F. App’x 27,
30-31 (6th Cir. 2020) (reasons why agent launched investigation not
relevant to whether defendant was entrapped.) And even relevant
evidence may be properly excluded if its probative value is substantially
outweighed by a danger of unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence. Fed. R. Evid. 403.
The defendants misleadingly cite Sherman v. United States, 356
U.S. 369, 376 (1958) which says, “for purposes of entrapment, a
confidential informant is an agent of the government.” (Doc. 28, Def’s Br.,
Page 69.) But that case dealt with whether an informant could entrap a
defendant, not whether the informant’s statements were hearsay.3 Id.
Indeed, if the Supreme Court had actually held informants’ statements
3 In fact, the word “hearsay” never appears in Sherman.

104
were admissible non-hearsay in 1958, it would be surprising that the
majority of circuits have held the opposite ever since. See United States
v. Yildiz, 355 F.3d 80, 81-82 (2nd Cir. 2004) (collecting cases).
The defendants also misconstrue Branham and the trial evidence
in at least three ways: First (as in the pretrial motion practice) they
improperly conflate general supervision of informants with directing the
informants’ statements. (Doc. 28, Def’s Br., Page 28; see also R.666: Def’s
Br., PageID.8387; R.672: Gov’t Response in Opposition, PageID.8550-51.)
For example, the defendants proffered a statement of CHS Steve Robeson
that “[w]e’re going to smoke one.” (R.383-1, PageID.2577.) While the FBI
authorized Robeson to be a CHS, there was certainly no suggestion that
the FBI directed him to use – or invite others to use – illegal drugs. This
example only supports the district court’s proper caution about the
statements of independent actors with their own criminal issues and
mixed motives.
Second, Branham does not hold that all non-hearsay is relevant.
For example, Croft says “agents/informants … expressed their conclusion
that the conspirators were divided and would never agree.” (Doc. 28, Defs
Br., Page 73.) But a government agent’s state of mind is not relevant to
105
an entrapment defense. See United States v. Makhlouta, 790 F.2d 1400,
1402 (9th Cir. 1986). An informant’s opinion would be no more relevant.
Third, Branham does not dispense with Rule 403’s balancing test.
For example, Fox argued at length to admit text conversations between
himself and an FBI online covert employee, to show that the employee
was nice to him. The district court did not abuse its discretion in ruling
any marginal probative value was not worth the lengthy process it would
take to authenticate and explain the supposed relevance of the texts.
(PageID.15020.)
Finally, the page-long bulleted list of supposedly “barred evidence”
in Croft’s brief contains mostly argumentative propositions unsupported
by record citations. For example, he claims without reference that agents
or informants “finagled leadership roles for themselves,” “promoted the
‘free’ money scam to ‘conspirators’ to try to lure them,” and “pushed
property and other crimes to salvage something from the floundering
‘kidnapping’ plan.” (Doc. 28, Def’s Br., Page 73.) These conclusory
arguments are insufficient to establish error.
Both defendants claim the exclusion of hearsay infringed their
“right to present a defense.” (Doc. 26, Def’s Br., Page 67; Doc. 28, Def’s
106
Br., Page 63.) But “the right to present a complete defense is not an
unlimited right to ride roughshod over reasonable evidentiary
restrictions.” Rockwell v. Yukins, 341 F.3d 507, 512 (6th Cir. 2003). A
trial judge possesses “wide latitude to exclude evidence that is only
marginally relevant,” Crane v. Kentucky, 476 U.S. 683, 689 (1986)
(citation omitted), and may exclude evidence that is “incompetent,
privileged, or otherwise inadmissible under standard rules of evidence.”
Rockwell, 341 F.3d at 512.
Notwithstanding substantial authority questioning Branham, the
court followed it and admitted relevant statements of sworn FBI agents.
And it ruled that statements of informants were also non-hearsay, where
they were directed or counseled by their handlers. In other words, the
court followed the holding that such statements were non-hearsay where
made “in furtherance of [the government’s investigative] goal, and thus
within the scope of the existing agency.”
The defendants simply proffered no otherwise admissible
statements meeting that standard, and they have identified none with
specificity in their briefs. Instead, they sought to confuse and mislead the
jury by introducing irrelevant information about informants’ opinions,
107
drug use, and the like. The district court did not abuse its discretion in
excluding such material. Even if it had, the defendants have not
identified any particular rulings which, had they gone the other way,
would have “substantially swayed” the outcome of the trial.
CONCLUSION
For the foregoing reasons, the Court should affirm the judgment of
the district court.
Respectfully submitted,
ANDREW BYERLY BIRGE

Attorney for the United States
Acting under Authority Conferred by
28 U.S.C. § 515
Dated: December 13, 2023 /s/ Nils R. Kessler .

NILS R. KESSLER
P.O. Box 208
(616) 456-2404
108
CERTIFICATE OF SERVICE
I hereby certify that on December 13, 2023, the foregoing document

was electronically filed. Notice of this filing will be sent by operation of
the Court’s electronic filing system to all parties indicated on the
electronic filing receipt. Parties may access this filing through the Court’s
system.
I further certify that a copy of the foregoing document was mailed

on this date to the opposing party if he/she was not registered to receive
the document by the Court’s electronic filing system.
/s/ Nils R. Kessler .

NILS R. KESSLER
United States Attorney’s Office
Post Office Box 208
Grand Rapids, MI 49501-0208
(616) 456-2404
109
CERTIFICATE OF COMPLIANCE
A word count of this brief was made using Office 365 and it contains
21,635 words. Pursuant to Rule 32(a)(7)(B), a principal brief may contain
no more than 13,000 words. This brief, however, responds to two
Defendants-Appellants’ briefs. Accordingly, concurrent with the filing of
this brief, the government is filing a motion for leave to file a brief
exceeding the word limit.
Dated: December 13, 2023 /s/ Nils R. Kessler .

NILS R. KESSLER
P.O. Box 208
(616) 456-2404
110
DESIGNATION OF RELEVANT DISTRICT COURT

DOCUMENTS
Description of Entry Date Record Page ID

Entry Number
Number Range
Docket Sheet NA NA
Complaint 10/06/20 01 1-16
Order of Detention Fox 10/16/20 45 459
Indictment 12/16/20 86 573-578
Mins Fox Arraignment 12/17/20 103 611
Mins Croft Arraignment 01/13/21 131 714
Order of Detention Croft 01/4/21 135 718
Garbin Plea Agreement 01/27/21 142 742-758
Mins Garbin Change of Plea 01/27/21 143 759
Motion in Limine 12/29/21 383 2554-1620
Govt Response to Motion in
01/06/22 396 2720-2751
Limine
Order 02/02/22 439 2996-3022
Franks Plea Agreement 02/07/22 445 3115-3133
Mins Franks Change of Plea 02/09/22 447 3135
Declaration of Mistrial 04/12/22 622 6029
Motion in Limine 07/12/22 666 8384-8506
Motion in Limine 07/12/22 667 8507-8508
111
Govt Response to Motion in

07/15/22 672 8547-8553
Limine
Order 07/28/22 692 8686-8688
Mins of Jury Trial 08/09/22 704 8949
Brief 08/11/22 707 8959-8963
Restricted Access Order 08/12/22 709 8976-8977
Restricted Access Order 08/14/22 711 8979-8989
Motion for New Trial 09/06/22 745 9726-9757
Order 11/25/22 779 10218-10245
Fox Presentence Report 12/01/22 780 10246-10295
Croft Presentence Report 12/12/22 787 10401-10460
Fox Judgment 12/27/22 801 10634-10640
Croft Judgment 12/28/22 804 10648-10654
Fox Notice of Appeal 12/29/22 806 10661
Croft Notice of Appeal 01/07/23 808 10666
Description of Proceeding or Date Record Page ID

Testimony of Hearing Entry Number
Number Range
Trial Transcript, vol. I 08/09/22 837 14139-14403
Trial Transcript, vol. II 08/10/22 838 14405-14602
Trial Transcript, vol. III 08/11/22 839 14604-14815
Trial Transcript, vol. IV 08/12/22 840 14817-15024
Trial Transcript, vol. V 08/15/22 841 15026-15271
112
Trial Transcript, vol. VI 08/16/22 842 15273-15546

Trial Transcript, vol. VIII 08/18/22 844 15826-16064
Trial Transcript, vol. XI 08/23/22 847 16289-16303
In Chambers Conference
08/11/22 856 16542-16552
Transcript
Description of Proceeding or Date Record Page ID

Testimony of Hearing Entry Number
Number Range
Sealed Transcript 08/11/22 848 16305-16311
Sealed Transcript 08/12/22 849 16313-16319
113

DOJ's Response To Barry Croft/Adam Fox Appeal

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DOJ's Response To Barry Croft/Adam Fox Appeal

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Case: 23-1029 Document: 38 Filed: 12/13/2023 Page: 1

IN THE UNITED STATES COURT OF APPEALS

UNITED STATES OF AMERICA,

ADAM DEAN FOX and 23-1014

On Appeal from the United States District Court

BRIEF FOR APPELLEE

ANDREW BYERLY BIRGE

TABLE OF AUTHORITIES .................................................................... iii

STATEMENT REGARDING ORAL ARGUMENT .................................. x

STATEMENT OF JURISDICTION .......................................................... 1

ISSUES PRESENTED .............................................................................. 2

STATEMENT OF THE CASE .................................................................. 3

SUMMARY OF THE ARGUMENT ........................................................ 62

I. Viewed in the light most favorable to the prosecution, the

Admission of Informant Statements to Those Made Within

CONCLUSION ...................................................................................... 108

CERTIFICATE OF SERVICE............................................................... 109

CERTIFICATE OF COMPLIANCE ...................................................... 110

DESIGNATION OF RELEVANT DISTRICT COURT DOCUMENTS111

Gooch v. United States,

Kotteakos v. United States,

Mathews v. United States,

MCI Communications Corp. v. American Tel. & Tel. Co.,

Pinkerton v. United States,

Remmer v. United States,

Ross v. Parrot’s Landing, Inc.,

Sec’y of Labor v. DeSisto,

Sherman v. United States,

Sutkiewicz v. Monroe Cnty. Sheriff,

United States v. Amawi,

United States v. Angulo,

United States v. Bailey,

United States v. Baker,

United States v. Blakeney,

United States v. Boylan,

United States v. Bradshaw,

United States v. Branham,

United States v. Carnes,

United States v. Dalton,

United States v. Dandy,

United States v. Dutkel,

United States v. French,

United States v. Gagnon,

United States v. Garrett,

United States v. Gjokaj,

United States v. Griffin,

United States v. Guadaramma,

United States v. Harris,

United States v. Haywood,

United States v. Herrera-Medina,

United States v. Jimenez Recio,

United States v. Lopez-Medina,

United States v. Makhlouta,

United States v. McCabe,

United States v. McDaniel,

United States v. Muhammad,

United States v. Nelson,

United States v. Owens,

United States v. Pennell,

United States v. Perry,

United States v. Phillips,

United States v. Poulsen,