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Appeals Court Hammers Prosecution about FBI Conduct in Whitmer Kidnap Plot

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Croft and Fox were convicted of plotting to kidnap Whitmer after their second trial in late 2022. At their first trial earlier that year, a jury acquitted two other men while failing to reach a verdict for Croft and Fox.

The two men appealed their convictions on multiple grounds. Thursday's hearing focused largely on the conduct of FBI informants and their handling agents.

Croft's attorney, Timothy Sweeney, argued that his client should get a retrial because he wasn't allowed to introduce numerous text messages that showed improper conduct by the FBI.

Those text messages showed how FBI informants were pressuring Fox and Croft to formulate a plan against Whitmer. A list of the texts can be found in this document.

Representing the government, Assistant U.S. Attorney Nils Kessler argued that the FBI text messages were irrelevant because Fox and Croft were already predisposed to committing an act of terrorism.

"All the [FBI] statements identified by defense go to inducement. If jury found they were predisposed [to kidnapping Whitmer], none of that matters," Kessler said. "This court has held that entrapment can only happen if the government plants an idea in an innocent persons' head."

The appeals justices expressed skepticism about Kessler's argument. One justice disagreed with the prosecutor's reading of the law.

"They're saying the jury didn't see all the pressure, all the government informants pounding on them. Surely that's relevant?" the justice asked Kessler, to which he responded: "Theoretically, yes, but they don't identify any statements where an informant actually put that kind of pressure to go kidnap the governor."


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