DETROIT — One of the suspects in the Gov. Gretchen Whitmer alleged kidnapping case wanted to raise the infamous 2021 U.S. Capitol riot at trial, alleging the FBI's handling of the deadly insurrection points to a "consciousness of guilt" by the government.
But the judge told him no.
On Wednesday, Chief U.S. District Judge Robert Jonker denied Kaleb Franks permission to raise "wider, national concerns" regarding the FBI's alleged use of undercover agents and informants in the 2021 insurrection. Franks, 27, of Waterford, also wanted jurors to hear about a U.S. senator's questions about the FBI's actions in the riot, alleging the inquiries are relevant to an "objective" entrapment defense because they "show the government's consciousness of overreaching."
Jonker disagreed, concluding the information Franks wants to present is both inadmissible, irrelevant and potentially misleading.
"(T)he challenge at trial here will be to ensure the jurors are able to ignore exactly this kind of extraneous information from extra-judicial sources," Jonker wrote in his order. "Even the defense has previously recognized that this information has no place in front of the jury when it sought to question proposed jurors about the events of January 6."
Jonker also noted that much of Franks' request has "already been decided against him."
One day ago, Jonker denied a defense request to dismiss the entire kidnapping conspiracy case, which is set to go to trial March 8. Jonker rejected the defense's entrapment claims that the suspects were set up by rogue FBI agents and informants who allegedly hatched the kidnap plot, egged on the accused with anti-government rhetoric, and induced them into doing and saying things they wouldn't have otherwise.
Jonker concluded that the defendants failed to meet a "heavy burden" to have the case dismissed at this point.
"At this pretrial stage, the court concludes the defense has not demonstrated, as a matter of law, that defendants' wills were overcome by the actions of the government," Jonker wrote in his six-page opinion.
Jonker said it will be up to the jury to decide who is credible in the case, which centers around allegations that six men set out to kidnap Whitmer from her vacation home, largely fueled by anger over her COVID-19 restrictions.
The government has argued that it can prove that the suspects were willing participants in the kidnap plot, and that they did more than just talk about it, but took action: They cased the governor's house twice, drew maps, bought night vision goggles and spoke in encrypted chat rooms so as not to get caught.
The government also has a star witness: 26-year-old Ty Garbin, of Hartland Township, one of the suspects who cut a deal early on, pleaded guilty, got a six-year prison sentence and is expected to testify against the others at trial.
The defense, meanwhile, suffered another setback on Wednesday as Jonker also refused to order the government to immunize certain witnesses, as requested by Franks.
Franks wanted the judge to compel the government to offer immunity to FBI agents and confidential informants involved in the case, alleging that "a number of both the agents and sources have reason to refuse to testify by invoking their Fifth Amendment rights." This would undermine his defense, Franks argued.
But the judge denied Franks' request, concluding the court "does not have authority to compel the government to grant ... immunity to a witness."
Franks, meanwhile, is still waiting for the judge to decide if he will be given access to jail call recordings that he believes will help him at trial.
Specifically, Franks has asked the judge to compel the government to produce all recorded statements — letters, emails, phone calls, text messages — made in jail by witnesses whom prosecutors will call at trial.
On Wednesday, the government asked the judge to deny the request, arguing neither side has any "reason to believe that these statements exist," and that prosecutors have "only a small sample of jail calls for the defendants" in their possession.
Assistant U.S. Attorney Jonathan Roth called the defendant's request "a fishing expedition, hoping to find evidence that he did not participate in the conspiracy to kidnap the governor or to put meat on the otherwise bare bones of his proposed entrapment defense."
In addition to Franks, the defendants are: Adam Fox, 38, of Potterville, who is accused of being the ringleader; Barry Croft, 46, of Bear, Delaware; Daniel Harris, 24, of Lake Orion, and Brandon Caserta, 33, of Canton.
The men were arrested in October 2020 in an FBI sting at an Ypsilanti warehouse. The defendants thought they were going to meet an accomplice and make a down payment on explosives, prosecutors have alleged, but instead FBI agents were there waiting with handcuffs.
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